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 Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâ—e esse conversum ut vix sonitum audire vix impressam orbitam viâ—ere possumus Cic. â—â— Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
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
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ— c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâ—cured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâ—â—â— observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ— to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â— fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First in his Declaration touching his proceedings in Parliament 1621. resolves That most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That he cannot with patience endure his Subjects to use such Antimonarchical Words concerning their Liberties except they had subjoyned That they were granted unto them by the Grace and Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient
infallible and every Member an Angel But the Observer Objection That if the King have a Negative Voice there will be no need of Parliaments and his Pewfellows urge That if the Houses can do no Act for publick good without the King's consent and if the King may reject their Counsels and Advice it were needless to put the Country to the charge of choosing Members of Parliament And if the King may prefer other opinions before Parliamentary Motives then Parliaments are vain and useless helps Princes are unlimited and the People miserable These Objections are of such an odious nature Answer That no good Subject can take delight in them whose duty is to pray for the like consent among the several Orders of the Kingdom as is supposed to be among the several Orbs of Heaven The King undoubtedly the Primum movens the Great and Privy Council the lower Spheres The usual but not the only form of the Kings Answers to such Bills as they were not willing to pass Le Roy s'avisera proves (e) Answer to Observations p. 56. That after the advice of this his Great Council he is yet at liberty to advise further with persons or occasions as his own Wisdom shall think meet But these Authors will by no means take notice That the use of Council is to perswade not to compel as if a Man in business of great concernment might not very prudently consult with many Friends and yet at last follow the advice perhaps of one if it appear more proportionable to the end he aims at If it were because they are a more numerous body therefore their Counsel is upon that account to be yielded to then the liberty of dissenting may be denied to the House of Peers in comparison of the House of Commons and to that House too in comparison of the People and so both King Lords and Commons are voted out of Parliament Besides Natural Wisdom and Fidelity there is a thing called Experience of high concernment in the managery of Publick Affairs He that will steer one Kingdom aright must know the right Constitution of all others their Strength their Affections their Counsels and Resolutions that upon each different Face of the Skie he may alter his Rudder The best Governments have more Councils than one One for the Publick Interest of the Kingdom another for the Affairs of State a Council for War and a Council for Peace Let them be as wise and faithful Counsellors as the Observer pleaseth only let them be but Counsellors Necesse est us Lancea in libra ponderibus impositis deprimi sic animum perspicuis cedere Let their conlusions have as much credit as the premisses deserve and if they can necessitate the Prince by weight of Reason and convincing Evidence of experience let them do it on Gods name But it is not to be done upon the Authority of a bare Vote as I think all uninterested persons are satisfied in the Votes of the Houses in 1641. about the Militia Church-Government and the voted Nineteen Propositions or the late Votes about the Bill of Seclusion the Repealing of the branch of the Statute of Queen Elizabeth against Protestant Dissenters and the Loans upon the Kings Revenue There are other ends besides Counsel for which Parliaments are called as consenting to new Laws furnishing the Public with Moneys and maintaining the Interest of the Government and liberty of the Subject from the removing one social end to inferr that an Action is superfluous deserves no answer but silence and contempt This should teach the Electors Wisdom not to chuse such as have Factious Bents or are not truly qualified in their Allegiance to their Prince or Malecontents who render such Conventions useless to the Publick Ends of Government and the Peace Tranquillity and Prosperity of both Prince and People Because the Long Parliament Writers would have no Stone unturned nor any specious Argument uninforced Concerning the Coronation-Oaths of the King of England that might bring the King to their Lure to consent to what they proposed they endeavoured to make the World believe that the King was bound by his Coronation Oath to pass all such Bills as they presented or tendered to him grounding as Mr. Prynne and others alledged on a promise of the Kings at his Coronation to grant and keep the Laws and Customs which the Commonalty shall chuse Before I come to give the particular Answer I think it not unfit to take this opportunity to give a full account of the Coronation Oaths of our Kings and how the same from Age to Age were varied by which the Ingenious Reader will find what the respective Kings by their Oaths did promise That I may deduce as high as I have yet found the Original of Soveraign Princes taking Oaths at their Coronations it may be noted that the first Emperor that was Crowned and had any Coronation Oath prescribed was (f) Evagrius Hisâ— Eccles lib. 3. c. 32. Who first took a Coronation-Oath Anastasius the Greek Emperor who being elected by the Senate and Soldiers about Ann. 486. Euphemius Patriarch of Constantinople suspecting him to be addicted to the Heresy of Eutychius and the Manichees would not consent to his Coronation till he should deliver him a Writing under his Hand ratified with his Oath wherein he should plainly declare That if he were Crowned Emperour he would maintain the true Faith and Synod of Chalcedon during his Reign and bring in no Novelty to the Church of God This Writing ratified with his Oath Macedonius the Treasurer was to keep and after he was made Patriarch the Emperor demanded it and said It was a great discredit unto his Subjects that his Hand-writing should be kept to testifie against him or that he should be tied to Pen and Paper There is no mention of any Coronation Oath used from thence to the Year 804. that (g) Eutrop. lib. 24. p. 145 146. Zonar Annal. tom 3. fol. 142 143. Imperatorio Diademate est ornatus postulato prius scripto quo promitteret se nulla Ecclesiae statuta violaturum Stauratius Son to Nicephorus slain in his Wars against the Bulgarians being declared Emperor by some Michael Curopolata was adorned by the Patriarch with the Diadem a Writing before being desired in which he promised to violate none of the Statutes of the Church c. Which is the first Precedent of a Promise not an Oath demanded from or given by any Roman King for confirming the Laws of the Church c. The first Emperor Crowned at Rome by any Pope (h) Onuphr was Charles the Great Anno 800. but without an Oath and Henry the Fifth (i) Dicens Imperatorem nemini jurari debere cum juramentorum sacramenta ab omnibus sint sibi adhibenda Hermold Chron. Scl. l. 1. c. 40. Sim. Dunelm 232 237. refused to take any Corporal Oath saying That an Emperor ought to Swear to none for that Oath i. e. of Fealty
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
and Laity met it seemed most profitable that love and mutual benevolence through his whole Dominion should be cherished for it was (q) Et us eallum tha unribtlican menigfealdan gefrohâ—e the betwux us svlsum syndon irksom to them all that there should be unjust fighting among Christians and begins the Seventh Law thus It is the part (r) Witan seylon faeb the settan of the prudent to extinguish Capital Enmities For the better preservation of Peace King Aethelred appointed that every (s) That aele sreoman getreowne borb bebbe Freeman have sureties that if he be called in question for any Crime these Sureties may do justice to each one that is satisfie for the offender the Title of which is Be Borgum In the Law the duty of these Sureties is described at large and it appears by other Laws in after times that Nine Men were bound for every Tenth Man Whoever desires further satisfaction in this particular may consult the 19th Law of Canutus wherein he appoints (t) Et we willath that aele freoman beo on hundrede on Teothung gebrobt viz. the Tything security that every Free-man enter himself into an Hundred or into the Collegueship of the Ten. In other matters of preserving Peace they may consult the Second the Eighth and Twelfth Laws of the same Canutus the which Eighth Law is thus expressed Peace is so to be considered as that nothing can be more desirable that it to the Inhabitants and nothing more contrarily is offensive as Thieves which in the Saxon is thus Swa ymbe frythesbote Swathan bundan si selost tham Theoffon sy lathost swa ymb Heosbote Having met with a passage in the Laws of King (u) LL. Aethelstani fol. 53. Ethelstan which both illustrates the Care of the King to have the Peace preserved and likewise shews the readiness according to their duty of the Subjects to assist the King with their Persons and Estates I thought it not amiss to insert it as a Close to this Chapter and an Introduction to the next The words as to be rendred from the Saxon and the Latin Version of Mr. Lambard run thus I Aethelstan King do to all clearly signifie Cyth that I have diligently enquired the Cause wherefore our (w) Vre sryth is wyrs gehealden thonâ—e we lyst Peace was not kept as I desired and at Grantelee it was appointed and I received this Answer from (a) Et mine witan seigâ—h my Wise Men that it happened by my (b) That le hit to long forboren baebbe forbearance i.e. too much lenity in not punishing now of late when I staid at Exceter in the (c) Middum wintre Feast of the Nativity of our Lord attended by my Wise Men I found (d) â—t tha ealle syn 〈◊〉 mid bire sylfum midyfre which I signifying Heritage and though mis-placed in Lambard is by him translated Children mid wife mideallum thingum by Lâ—mbard translated properly all their Fortunes to faerenne thider thider le thonne will them â— most ready themselves with their Heirs with their Wives and all their Estates to go thither whither I will and will purge out or expel those Outlaws i. e. breakers of the Peace that are against this in such order or with such wisdom and consideration that they never after come on the Earth again i.e. that they be banished The Saxon of the latter part is thus Bretan hi offer this geswican willan on tha gerade the heo naefre aest on sorda ne cumen which Mr. Lambard translates thus Vt isti tandem pacis violatores Regno hand unquam redituri pellerentur Then it further is added And if these Men (e) And gif hi mon afre afâ— on thaem eorda gemit that hi syn swa seildig swa se the at hebbendra banda gefougen syn hereafter in these Lands be met with or found that they shall be so guilty as they are that are found hand having that is Stealing which Mr. Lambard renders Ac si eorum aliquis postea in Regno deprehenderetur pariter ac qui est in furto manifeste deprehensus plecteretur From all which we may observe That the Counsel of the Witan Nobles and Wise Men was at one of the times the King kept them in course viz. at Christmas called here Mid-winter Secondly That the King asks the Members of the Council their advice Thirdly They tell him that it happened that his Peace was not kept because of his forbearance in not putting the Laws in Execution that were established at Grantelee From whence we may observe that the King was to put these in Execution and that his Remisness Clemency or Indulgence increased the numbers of the breakers of the Peace Fourthly That for the suppressing of these breakers of the Peace the Nobles who met in Council at Exceter promiâ—e they will be in readiness provided themselves and their whoâ—e Families and all things they have to faerenne that is from faer to go forth in Expedition Armed as the King will appoint the signification of which word I have found in several Letters about the Wars betwixt England and Scotland in Henry the Eighth's and Edward the Sixth's time where when any considerable party of the Scots made an inrode into England to seize upon Men burn Towns or Houses or carry away Cattel it was called running a Forray Fifthly We may note that this shews that the Militia of the Subjects was at the Kings disposal to go whither then the King will which saves me a labour in the following Chapter to deduce the Kings Power over the Militia higher though I doubt not but a little looking into the Saxon Laws would afford me more Precedents as the Fifty ninth Law of William the (f) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni noslri praedicli sint fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum Facem Dignitatem Coronae noslrae integram observandam ad Judicium rectum Justiciam constanter omnibus modis pro posse suo sine dolo sine dilatiene faciendam LL. Gul. 1. 59. fol. 171. Edit Wheeloch Conqueror doth expresly as before I have touched on another occasion but here think fit to recite it at length viz. The King appoints and firmly commands all the Free-men of his Kingdom that they be sworn Brothers to their Power to defend and manfully to keep his Monarchy and his Kingdom according to their might and Estates against Enemies and to observe or maintain the Peace and Dignity of his Crown entire and without delay without deceit to do right Judgment and Justice constantly all manner of ways according to their Power So that here we find these liberi Homines Conservators of the Peace also which I suppose was incumbent on them as well as
sought after as the Trumpets and Kettle-drums that call together the whole Array against the Government And if they cannot be dispossessed of that Evil Spirit by gentler means they are to undergo the severity of the Laws which are made against Incendiaries of a Kingdom which is of more dangerous consequence than the firing of a Private Man's Habitation The danger from these Libels are the greater because (g) In civitate discordi ob crebras Principum mutationes inter libertatem licentiam incerta parvae quoque res magnis motibus agebantur Tacit. 2. Hist in times of Faction and the often Changes of Government the People being unfixed fluctuating betwixt Liberty and Licentiousness small Matters are transacted with great Emotions As to Corporations they have all of them been endowed with their Privileges by the Grace and Bounty of the Sovereign from whence all Immunities and Honours do flow The first Institution of them was no doubt Concerning Corporations that Justice might be executed in them for the better governing their numerous Inhabitants that they might be the Places of Traffick where the adjacent Country might be supplied and their Neighbours might vend their Growth and Manufacture And thus being enriched by Commerce separated from their Country-Neighbours by Honours Offices and Liberties something a Gentiler Education might be expected there whereby they might be Patterns to their adjoyning Neighbours of good and vertuous Deportment being exempted from the Jurisdiction of the Justices of Peace and attendance upon Assizes whereby Legal Matters in order to the necessary Administration of Justice are executed in their Precincts by their own Members and many of them besides the Privileges to be found at large in the Statutes and Law-Books have power to chuse as many to represent them in Parliament as the whole County hath It would fill a large Volume to recount the particular Powers and Freedoms have been granted to them by the Royal Favour of the successive Kings of England whereby they are erected into little Commonwealths Therefore there is good reason as they may do much good or harm and they have all the enriching Streams and Conduits from the Sovereign Spring and Fountain so they should have a strict dependence upon the Sovereign that they may not employ those great Privileges against the Laws and Government nor the rich pragmatical Magistrates Citizens and Freemen animate Factions and Seditions against it or presume to obtrude their impertinent Advices upon their Sovereign or by their clamorous Petitions for Redress of pretended Grievances and Male-administration or by their Election of Factious Representatives dispose of the Fate of the Empire as they did in 1641. by their general Combinations with the then Parliament which they so effectually assisted in their Rebellion It is too manifest how little Justice the two last Kings could have in the great Metropolis the King 's Imperial Chamber or in other Corporations although they had all less or more received great Instances of their Royal Favours and Graces And tho' the great City by the late King of Immortal Memory 's Royal Munificence and Princely Care as much as in him lay by Act of Parliament and his own particular Bounty after it was so fatally reduced to Ashes was raised into one entire Palace so beautiful and splendid as all People must acknowledge it the Eighth Wonder yet the grateful Returns were unproportionable This great City enjoyed as ample and beneficial Privileges as any could wish for and though it be deprived of some of them yet by the Munificence of our late and present Sovereign it enjoys what is needful for its well governing in subordination to the Publick Since therefore the Corporations mostly were found to have made ill Returns to their Sovereigns for all their special Graces by a most wise Council it hath been judged fit to enquire by what Warrant they enjoyed those Privileges and to recall those Charters that new ones might be granted mostly with Additions of Privileges only that the Magistrates if they should abuse their Authority might be displaced at the King's Pleasure A most necessary Resumption of Power whereby they might not be in a capacity for the future to give any Disturbance to the Government Elsewhere I have given short Hints of the Practice of former Kings in vacating the Charters of the great City and shall only add what I find in the most Judicious Historian was done in a like Case by the Senate of Rome in Tiberius his Reign The Licence (h) Crebrescebat enim Graecas per urbes licentia atque impunitas asyla statuendi complebantur â—â—mpla pessimis servitiaâ—um eodem subsidio obaeraâ—i adversus creditores suspectique capitalium criminum receptabantur nec ullum satis validum Imperium erat coercendis seditionibus populi flagitia hominum ut Caeremonias Deum protâ—entes Igitur placitum ut mitterent civitates Jura atque Legauos c. Magnaque ejus diei species fuit quo Senatus majorum beneficia sociorum pâ—cta Regum etiam qui ante vim Romanam valuerant decreta Ipsorum numinum Religiones introspexit libero ut quondam quod firmaret mutareâ—ve Tacit. 3. Annal. and Impunities of ordaining Sanctuaries and Privileged Places encreased saith my Author throughout the Cities of Greece the Temples were filled with most lewd Bondslaves in the same were received Debtors against their Creditors and Men guilty of Capital Crimes were protected neither was there any powerful Authority able to bridle the Sedition of the People Villanies were protected no less than the Ceremonies of the Gods Therefore it was appointed That the Cities should send their Agents with their Laws Some by way of Resignation of their Charters freely remitted those things they had falsely usurped many did confide in the Antiquity of their Superstitions and their Deserts to the People of Rome The Pomp of that Day saith the Historian was great in shew In which the Senate for Tiberius had left the Senate a Shadow of their ancient Estate by sending the Requests of the Provinces to be examined by them considered of the Privileges granted by their Predecessors the Agreements with their Confederates the Decrees of the Kings before the Countries became subject to the Romans and the Religion of the Gods themselves to confirm or alter all By which it may appear to be no new thing for Sovereigns to enquire into the Privileges of Cities tho' claimed by Divine Original as many of those were from their Gods or by the Bounties of Princes As to Conventicles the Nurseries of Seditions since the Laws are obvious by which they may be suppressed and that in another Chapter I have treated of them I shall take no further notice of them here being as unwilling that truly consciencious mis led People that endanger not the Government should be severely punished as I heartily wish they would give no Disturbance to it CHAP. XLVI The Preservatives against Faction and Sedition THE general Amulets
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
few Years In Three Books The Whole illustrated with divers accurate Maps and Figures Written originally in Italian by Adam Oliarias Secretary to the Embassie Rendred into English by John Davies of Kidwelly The Second Impression The History of the Execrable Irish Rebellion trac'd from many preceding Acts to the Grand Eruption October 23. 1641. and thence pursued to the Act to Settlement in 1662. The Journals of all the Parliaments during the Reign of Queen Elizabeth both of the House of Lords and House of Commons Collected by Sir Simon D' Ewes of Stow-Hall in the County of Suffolk Knight and Baronet Revised and published by Paul Bowes Esq of the Middle Temple I Ragguagli di Parnasso or Advertisements from Parnassus in Two Centuries With the Politick Touchstone Written originally in Italian by that Famous Roman Traâ—ano Bocalini And now put into English by the Right Honourable Henry Earl of Monmouth Cosmography and Geography In Two Parts The First containing the general and absolute Part of Cosmography being a Translation from that eminent and much-esteemed Geographer Varenius wherein are at large handled all such Arts as are necessary to be understood for the true knowledge thereof To which is added the much wanted Schemes omitted by the Author The Second Part being a Geographical Description of the World taken from the Notes and Works of the Famous Monsieur Sanson late Geographer to the French King To which is added about One hundred Cosmographical Geographical and Hydrographical Tables of several Kingdoms and Isles in the World with their Chief Cities Sea-Ports Bays c. Drawn from the Maps of the said Sanson Illustrated with Maps The Annals of King James and King Charles the First of ever Happy Memory containing a faithful History and impartial Account of the Great Affairs of State and Transactions of Parliaments in England from the Tenth Year of King James 1612. to the Eighteenth of King Charles 1642. Wherein several material Passages relating to the late Civil Wars omitted in former Histories are made known A perfect Copy of all the Summons of the Nobility to the Great Councils and Parliaments of this Realm from the Forty ninth of King Henry the Third until these present Times With Catalogues of such Noblemen as have been summoned to Parliament in Right of their Wives and of such other Noblemen as derive their Titles of Honour from the Heirs Female from whom they are descended and of such Noblemens Eldest Sons as have been summoned to Parliament by some of their Fathers Titles Extracted from Publick Records by Sir William Dugdale Knight Garter Principal King at Arms. The History of the Affairs of Europe in this present Age but more particularly of the Republick of Venice Written in Italian by Baptista Nani Cavalier and Procurator of St. Mark Englished by Sir Robert Honywood Knight The History of Barbadoes St. Christophers Mevis St. Vincents Antego Martinico Monserrat and the rest of the Caribby-Islands in all Twenty eight In Two Books The First containing the Natural the Second the Moral History of those Islands Illustrated with several Pieces of Sculpture representing the most considerable Rarities therein described The Works of the Famous Nicolas Machiavell Citizen and Secretary of Florence Written originally in Italian and now faithfully translated into English A Compleat Treatise of Preternatural Tumors both General and Particular as they appear in Humane Bodies from Head to Foot To which also are added many excellent and Modern Historical Observations concluding most Chapters in the whole 〈…〉 Discourse The Present State of the Ottoman Empire from the Year 1623. to the Year 1677. Containing the Reigns of the Three last Emperors viz. Sultan Morat or Amurat the Fourth Sultan Ibrahim and Sultan Mahomet the Fourth his Son the Thirteenth Emperor By Sir Paul Ricaut late Consul at Smyrna The History of the Cardinals of the Roman Church from the time of their first Creation to the Election of Pope Clement the Ninth With a full Account of his Conclaves In three Parts Written in Italian by the Author of the Nepotismo di Roma The World Surveyed or The Famous Voyages and Travels of Vincent le Blanc of Marcelles into the East and West Indies Persia Pegu Fez Morocco Guinny and through all Africa and the Principal Provinces of Europe A General Collection of Discourses of the Virtuosi of France upon Questions of all sorts of Philosophy and other Natural Knowledge Made in the Assembly of the Beaux Esprits at Paris by the most Ingenious Persons of that Nation Englished by G. Havers In two Volumes A Treatise of the Sibyls giving an Account of the Names and Numbers of them of their Qualities the Form and Matter of their Verses and of their Books Written in French by David Blondell Englished by Jo. Davis of Kidwelly Tracts written by John Selden Esq of the Inner Temple The first entituled Jaâ—â— Anglorum Facies altera Rendred into English with large Notes thereupon by Redman Westcoat Gent. The second England's Epinomis The third Of the Original of Ecclesiastical Jurisdictions of Testaments The fourth Of the Disposition or Administration of Intestate Estates Printed for Tho. Basset and R. Chiswell and sold by R. Clavell Basilica Chymica Praxis Chymiatrica or Royal and Practical Chymistry augmented and enlarged By John Hartman To which is added His Treatise of Signatures of Internal Things or a true and lively Anatomy of the Greater and Lesser World as also the Practice of Chymistry of John Harâ—man M. D. augmented and enlarged by his Son with considerable Additions All faithfully Englished by a Lover of Chymistry The Compleat Chymical Dispensatory in Five Books treating of all sorts of Metals Precious Stones and Minerals of all Vegetables and Animals and Things that are taken from them as Musk Civet c. How rightly to know them and how they are to be used in Physick with their several Doses The like Work never extant before Being very proper for all Merchants Druggists Chirurgeons and Apothecaries and such Ingenious Persons as study Physick or Philosophy Written in Latin by Dr. John Scroder that most Famous and Faithful Chymist and Englished by William Rowland Doctor of Physick The Royal Pharmacopaea Galenical and Chymical according to the Practice of the most Eminent and Learned Physicians of France and published with their several Approbations By Moses Charâ—as the King 's Chief Operator in his Royal Garden of Plants Faithfully Englished and illustrated with several Copper Plates An Abridgment of divers Cases and Resolutions of the Common Law Alphabetically digested under several Titles By Henry Rolls Serjeant at Law Published by the Lord Chief Baron Hales and approved by all the Judges The Reports of Sir George Croke Knight In three Volumes in English Allowed of by all the Judges The second Edition carefully corrected by the Original Les Reports de Henry Rolle Serjeant del ' Ley de divers Cases en le Court del ' Banke le Roy en le Temps del ' Reign de Roy Jaques Colligees
Agonistes The Author John Milton The Fables of Esop in two Volumes Paraphras'd in Verse adorned with 100 Copper Sculptures and illustrated with Annotations By John Ogilby Esq Actions upon the Case for Slander or A Methodical Collection under certain Heads of thousands of Cases dispersed in the many great Volumes of the Law of what Words are Actionable and what not and of a Conspiracy and Libel By William Sheppard Esq An Exact Abridgment in English of the Cases reported by Sir Francis Moor Knight with the Resolution of the Points of Law therein by the Judges Books in Octavo small and Twelves Sterometry made easie or The Description and Use of a new Gauging Rod or Sliding Rule by which the content of any Tun Copper Cask or other Vessel may be readily found either the Whole or any Part thereof the Area's of Circles in Gallons and Barrels being found by Inspection only as also the Extraction of the Square and Cube Root Questions concerning Interest and Annuities and many other Arithmetical Problems are hereby resolved without Pen or Compasses To which is added An Appendix containing the Description and Use of another New Rule very useful in Gauging of Worts and resolving Questions in the Mensuration of Solids and Superficies With a Table of the Area's of Circles and Contents of Cylinders in Ale-Gallons Calculated to every tenth part of an Inch from 12 to 156 Inches Diameter By Tho. Everard Philomath The Policy and Government of the Venetians both in Civil and Military Affairs Written in French by the Sieur de la Haye and faithfully Englished An Enquiry whether Oral Tradition or the Sacred Writings be the safest Conservatory and Conveyance of Divine Truths down from their Original Delivery through all succeeding Ages The Rules of Civility or Certain Ways of Deportment observed amongst all Persons of Quality upon several Occasions Newly revised and much enlarged A Breviate of the Proceedings of France from the Pyrenaean Treaty to this time Grammatica Reformata Or A general Examination of the Art of Grammar as it hath been successively delivered by Franciscus Sanchus in Spain by Gasper Scioppius in France by Gerardus Joannes Vossius in the Lower Germany and Methodiz'd by the Oxford Grammarian in his Observations upon Lilly By John Twells Schoolmaster Fundamenta Grammatices or The Foundation of the Latin Tongue Being an Explanation of the Eight Parts of Speech with a more easie Method for the Declining of Nouns terminating the Declensions Comparing of Adjectives Conjugating of Verbs c. Also Propria quae maribus Quae genus and As in praesenti examined and made plain to the meanest Capacity with the meaning of all the Rules in Syntaxis with the particular Examples of each Rule applied and parsed for the Use and Benefit of all those that desire to be instructed in the Latin Tongue A Course of Catechising Being the Marrow of all Orthodox and Practical Expositions upon the Church-Catechism and of all Controversies upon the Church-Customs and Observances Digested into Fifty two Heads for Fifty two Sundays in the Year Useful for Ministers and their People School-masters and their Scholars Parents and Children Masters and Servants Illustrated with many Copper Pieces fitted to the several Occasions Seneca with Farnaby's Notes Printed for R. Scot Tho. Basset R. Châ—swell c. and sold by R. Clavell Aesop's Fables in Greek and Latin Printed for Jo. Redmayne and sold by R. Clavell Midicina Instaurata or A brief Account of the true Grounds and Principles of the Art of Physick with the insufficiency of the Vulgar Way of Preparing Medicines and the Excellency of such as are made by Chymical Operation Whereunto is added A plain Discourse as a Light to the True Preparation of Animal and Vegetable Animals with a Discovery of the true Subject of the Philosophical Mineral Mercury and that from the Authorities of the most Famous Philosophers By Edw. Bolnest M. D. The Temperate Man or the right way of preserving Life and Health together with the soundness of the Senses Judgment and Memory unto extream old Age in three Treatises the first written by the learned Leonardus Lessius the second by Lodowick Cornaro a Noble Gentleman of Venice the third by a Famous Italian faithfully Englished Two plain and profitable Discourses upon the two Sacraments the first laying open the nature of Baptism and pressing the serious Consideration and Religious observation of the second Vow made by all Christians in their Baptism the other pressing as earnestly the frequent renewing of our Baptismal Vow at the Lords Holy Table demonstrating the undispensable necessity of receiving and the great sin and danger of neglecting the Lords Supper The present State of the Princes and Republicks of Italy with observations on them the second Edition enlarged with the manner of electing Popes and a Character of Spain Treasons Master-piece or a Conference held at White-hall between Oliver Cromwell the late Usurper and a Committee of the then pretended Parliament who desired him to take upon him the Title of King of England c. with an intent to exclude the Royal Line wherein many of the Leading Men of those times did by unanswerable Arguments assert and prove Monarchy to be the only Legal Ancient and Necessary Form of Government in these Kingdoms Usury stated Whereunto are adjoyned some Animadversions on Mr. Bolton's and Mr. Capel's Discourses concerning the same Subject Schematologia Grammatica examplis tam Graecis quam Latinis illustrata ad defectus Grammatices vulgaris in hac parte supplendos Autore Michaele Gilberto A. M. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or a History of Fevers composed according to such use of the Parts circulation of the Blood and the various Offices both of the Limpid Liquor and Nervous Juice as have been the happy Discoveries of Modern Anatomy together with a more particular description of the uses of the Spleen and Pancreas as also of the manner of Natures proceeding in the several motions of Fermentation and Ebullition than hath been formerly divulged The present state of the United Provinces of the Low-Countries as to the Government Laws Forces Riches Manners Customs Revenue and Territory of the Dutch in three Books Collected by W. A. Fellow of the Royal Society Accidence Commenced Grammer and supplied with sufficient Rules or a new and easy Method for the learning of the Latin Tongue The Author John Milton The Golden Calf which the World adores and desires in which is handled the most rare and incomparable wonder of Nature in transmitting Mettals viz. How the intire substance of Lead was in one moment transmitted into Gold Obrison with an exceeding true Particle of the Philosophers Stone at the Hague in the year 1666 written in Latin by John Frederick Helvesius Doctor and Practitioner of Medicine at the Hague faithfully Englished Medicina Statica or Rules of Health in eight Sections of Aphorisms Originally written by Sanctorius chief Professor of Physick at Padua Englished by J. D. Physick for Families or the new safe and powerful way of Physick upon constant proof established enabling every one at Sea or Land by the Medicines herein mentioned to cure themselves their Friends and Relations in all Distempers and Diseases without any trouble hazard pain or danger of Purges Vomits Bleeding Issues Glisters Blisters Opium Antimony and Quicksilver so full of perplexity in Sickness by W. Welwyn Physician Compendium Politicum or the Distempers of Government under these two Heads The Nobilities desire of Rule The Commons desire of Liberty with their proper Remedies in a brief Essay on the long Reign of King Henry III. By J. Y. of Grays-Inn Esquire Books newly Printed Of the Excellency of Monarchical Government especially of the English Monarchy Wherein is largely treated of the several Benefits of Kingly Government and the Inconvenience of Commonwealths Also of the several Badges of Sovereignty in general and particularly according to the Constitution of our Laws Likewise of the Duty of Subjects and the Mischiefs of Faction Sedition and Rebellion In all which the Principles and Practices of our late Commonwealths-men are considered By Nathaniel Johnston Doctor in Physick Sir William Dugdale's Summons of the Nobility to the Great Councils and Parliaments of this Kingdom c. Dr. Combers First and Second Book about Tithes with a Discourse of Excommunication Dr. Stern Archbishop of York his Book of Logick In Octavo Dean of Durham his Counsel and Directions Moral and Divine to a Young Gent. Swinborns Treatise of Spousals and Matrimonial Contracts The Installation of the Duke of Norfolk Earl of Peterborough and Earl of Rochester all newly published
scarce one particular Branch of the Constitution of the Monarchy the black Parliament did not alter I have been obliged under all those Heads to examine their Principles detect their Frauds sinister designs and the mischievous Consequences of those alterations or subversions they made and have treated so much the largelier of those Pests of all Governments Faction Sedition and Rebellion as I conceived the quiet repose and tranquillity of the Government required it Yet I flatter my self that all concerned therein will take my advice reasoning and collections in good part Since I have no other design but to prevent their Personal Rain and the Calamities that have been so wastingly brought upon these Kingdoms by them and may be brought again if ever the like should be attempted For the effectual prevention of which I am in hopes that the right understanding the Constitution of the Government will be an useful Antidote and would wish all Male-contents to consider what the consulting of History and their own Experience may teach them that however the English Monarchy for a time by Faction Sedition or Rebellion may be weakned or Eclipsed yet the just Monarohy like the Sun ever dissipates all the Mists hazy Weather and Clouds and will at last though sometimes not without Thunder and Lightning clear the Air and shine with more Powerfullness and Splendor than before The rude shocks of popular Disturbance do but more securely establish the Throne It being the Prudence of every Governour to make more defensible that part of the Fortress which by any Assault hath been found most weak and untenable As I have endeavoured on the one hand to keep the Subjects in their Duty and by all Dehortments reclaim them from Sedition and Rebellion and have laid open the ancient State of the Government and the absoluteness of our Princes for some Ages after the Conquest nevertheless I would not be understood to intend the reducing the Subject to their Pristine Bondage This is far from my Thoughts What I have done in this kind is not only because the subject matter required the describing the ancient Model of the Government and that of late the Power of our Monarchs hath been endeavoured to be too much restrained but principally upon three Accounts First to discover the gradual Relaxations of the absoluteness of our Princes for the greater case of the Subjects Secondly to let all know that our Liberties Priviledges and Immunities have proceeded from the Grants Benevolences and Gracious Condescensions of our Kings Thirdly to induce the Subjects with due thankfullness to acknowledg the bountiful Favour of our Soveraigns and the Wisdom of our Ancestors in solliciting for and obtaining such Liberties as we enjoy beyond the degree of any Subjects either to Crowned Heads or Republicks There being such Barriers set in England betwixt the Soveraign and his Subjects as neither can remove without fatal Inconvenience For as the Princes greatest Ease Prosperity and Glory is when he Reigns not so much over the bodies as in the hearts of his Subjects and rules by the Laws So the Peoples Profit Plenty and Tranquillity is the most certain and established when they are content with the Enfranchisements the Laws allow and endeavour not to invade the Prerogatives of the Crown as the Houses of Parliament 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 6. Hist p. 452. C. convened 1641. did by their dethroning Propositions and Bills which if they had been granted would not only have unsoveraigned the King but rendred the condition of the Subject more miserable and enslaved than it had been for many centuries of years by-past I have endeavoured in the whole work to discover how much the English Monarchy excells other ancient and modern Governments and even the Utopia and Fictitious Ideas of the Philosophers The judicious Polybius hath a memorable observation That every Monarchy is not to be called a Kingdom but that only which is yielded to by the willing that is which is freely submitted to to distinguish it from Tyranny and which is governed by Counsel rather than by fear or force Also that every Government of few is not to be called the Principality of the Optimacy but that wherein the just and Prudent by Election have the Power That he saith further is not to be called the Empire of the People where every multitude hath Power of doing what they will or purpose but where the Countries Customes flourish where the Gods are worshipped Parents honoured the Elder Persons reverenced and the Laws obeyed All which I hope I have made apparent are better provided for in our Hereditary Monarchy than in any other known Government especially as to the Peoples benefit in the rare Constitution of the Legislative and yet the Soveraign hath retained sufficient Power to secure the Peace of his Countries and be able to bear the Port of a great and just Monarch In this Treatise I meddle not with the Arcana Imperii they have too much of Majesty impressed upon them to be described by such Pencils as I can use and like the Kings Coin are incircled with a Decus Tutamen may neither be clipped nor adulterated Neither have I medled with the Religious part of the Government that not being my Province I write abstractedly of the Soveraign and the Constitution without regard to the Religion of the Prince as being well satisfied that whatever Qualifications the Subjects may wish for in their Prince yet Religion qua Religion should neither influence the Succession nor their Obedience In so great an undertaking I hope it will be considered that as in a great Building all the Rooms are not alike richly furnished There are some Vtensils fit for the Kitchin which are not for the Dining Room Some Pictures suit the Hall others the Stair-case Such as are for Chimney-pieces are not agreeable to the Great Chamber The choicest are fit for the withdrawing Room and the enriched Closets So in this work I am obliged to keep a decorum In some places I have reason to use a more close and contracted in others a more free and loose way of Arguing Sometimes I am forced to use the significant though obsolete Saxon or the crabbed Terms of Law and Arts and intermix the less refined Sentences of old Authors according as the subject matter required so that I could no waies use that politeness of phrase or roundness of Period◠the curious may expect I presume not that every one will be equally delighted with the researches I have made into the usages of remote Ages or with the Censures upon some mens later Actions But most I hope will find good use of either and when they consider I have endeavored to follow great Authors and have faithfully quoted them they will more readily acquit me Therefore I beg that the Ingenious Peruser will not pass his Censure upon parcels but after he hath perused the whole will be so charitable to believe that those Parts which are less acceptable to him
their imperious Commands The World never knew greater oppression than those that stiled themselves Keepers indeed Jaylors of the Liberties of England were guilty of It would trouble saith a judicious (s) Malson's Common Interest Author a publick Accountant to cast up those vast Summs and incredible Treasures which in less than twice seven years they raised and spent to support the worst of all luxurious Rebellion and to act upon the publick charge and Theater of the Nation not Masques and Plays as they had charged one great part of the Expences of the Court on but the most real and inhumane Tragedies and those infinite in number one of which was such as the Sun never saw or any History could parallel It would be endless to recount the Annual Revenue of the Crown Bishops Chapter and Cathedral Lands besides the Money they received for the purchace of them the constant heavy and unheard of Assesments free Quarter Plunder Sequestration Compositions Decimations Excise and Customs voluntary Contributions of Plate Jewels c. Summs borrowed on the Publick Faith which some found to their cost was but fides Punica and almost innumerable ways and arts they had to squeeze and drain the Treasure of the Nation into their bottomless Gulph so that the same Writer is confident That not any three Kings of England since William the Conqueror to this present were so expensive to England as that one Tyrannical and Prodigal Parliament The Nation was then and ever will be under any Usurping Republic in worse than Egyptian Bondage In every County a Committee was placed to seize the Estates and Rents of all the Loyal Subjects with such a Tyrannical Arbitrariness as never was known under any Kings Reign and as if that were not enough there were added to them Basha Major Generals and the sucking Vermine in every Town and Hamlet were either fire-side Troopers or some well affected Person whose Information would be believed before the best in the Parish Every one that would not worship those Pagods were proceeded against by some of those or their Arbitrary High Courts of Justice or were convened before the House of Commons where every one of those Parliament Demarchs were as absolute as the Laws of their own will could make them No Person could either question their Actions or Authority but he paid his Life or Fortune or one of them for his presumption so that we saw the whole Kingdom brought into a slavery far greater than theirs that wear Canvase Cloth and Wooden Shooes and not only look like Ghosts but really are so as they made all which they either suspected feared or hated All which was never to have been altered as long as their standing Force should be true to them to the incredible charge oppression and impoverishment of the Subjects Friend and Foe though they had the Policy to lay the heaviest Burthen and Load upon the Backs of their Enemies if possible to break them keeping the Loyal Nobility and Gentry so poor that many of them have not been able or ever will be to forget the kindness of that Government which was the ruin of them and their Families I shall now pass to the last head of Rewards and Punishments No just Distribution of rewards or Punishments and executing of Justice none of which can be according to merit where prevalent Faction shall sway the Balance and open and shut the Eyes of Justice by the cunning Instruments of Partiality It being impossible to separate Faction and Interest from this kind of Authority so that none shall obtain any thing but according as they shall be judged favourable or advantageous to the Interest of the ruling Faction So that the Vertuous shall have the least share since Vertue is not over natural to Mankind it is like to thrive but poorly in a soil where it is not tenderly cherished and frequently refreshed with the encouraging Dews of Reward and Benefit But those shall have the greatest share that can best wheedle or seem by a well-managed Flattery to join with the topmost governing Party I shall therefore give some examples of the Ingratitude of Commonwealths to the well-deserving great and brave Men Ingratitude of Commonwealths who have served their Country and been ill rewarded by the governing Part or been exposed to be baited or worried by the People instigated by Factions or suffered base Ignominy Banishment or Death I shall begin with Athens the eye of Greece and the Seat of the Muses When Xerxes invaded Greece The ill usage of Themistocles the Athenians and Peloponnesians were the most considerable States yet the Athenians were forced to leave their City and get into their Navy which might carry the whole People and their Power to some remote Country where they might enjoy more secure Habitations The Spartans were unwilling to hazzard a Sea-Battle near Salamis but would have weighed Anchor and gone to Isthmus Themistocles did all he could to perswade the staying and joining of the Fleets there to wait the Enemy who would have less Sea room whereas if they fought elsewhere by his numbers he would have overborn the Confederates and when he could not prevail but that they would weigh Anchor the next day he sent a private message to the Persian Captains that the Grecian Fleet intended to fly and in the interim advised the Grecian Fleet to be in a readiness against all Events By which Stratagem he toiled the Persian Fleet to make the Attacque with that disadvantage he desired and the Grecians obtain'd a most memorable Victory Several other great Services he did not only in saving of Athens but the rest of Greece from Xerxes But when the Athenians were returned to their City and rebuilt it after the Battle of Mycale the People were so proud of their Exploits that they not only endeavoured to get the Command of many Towns and Islands of the Greeks but within their own Walls would admit no Government but meerly Democratical which being argued against by Themistocles they laid upon him the Punishment of the Ostracism banishing him for ten Years before which time was expired a new accusation was framed against him by the Lacedemonians that he intended to betray (t) Sir Walt. Raleigh b lib. 3. cap. 8. sect 7. Greece to Xerxes So that he was forced to fly to Artaxerxes who afterwards would have imployed him against Greece but he decided the great Conflict betwixt thankfulness to his well-deserving Patron and natural Affection to his own ill-deserving People by finishing his Life with a draught of Poyson This Ostracism was a Sentence of Banishment writ upon an Oyster-shell and the like in Sicily writ on a Leaf was called Petalismus This was so often abused by exterminating Persons not so much for Crimes as by factious Envy made use of to remove out of the way Persons that were like to oppose the prevailing Factions that the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13.
Succession is as a Golden Chain that holds fast together and close every part of the Royal Contexture in it self and leaves no Chasms Chinks or Ruptures whereby any dissolving cause can be admitted entrance to subvert or disjoint the Frame I have before spoke of this Head and shall only add that as Kingly Government was the first so when Commonwealths were introduced with much strugling they kept Life a while in Greece and Rome but have been reduced to Monarchy again about one Thousand seven Hundred Years since Tacitus after his short way tells us Vrbem Romam a principio Reges habuere Libertatem consulatum L. Brutus instituit Dictaturae ad tempus sumebantur neque Decemviralis Potestas ultra biennium neque Tribunorum militum Consulare jus diu valuit Non Cinnae non Syllae longa dominatio Pompeii Crassique potentia cito in Caesarem Lepidi atque Antonii arma in Augustum cessere qui cuncta discordiis civilibus fessa nomine Principis sub Imperium accepit Tacit. l. 1. Annal. Monarchy hath no Private Ends. that Rome had Kings first that L. Brutus appointed Liberty and Consulship Dictatorship was sometimes assumed the Decemvirate lasted not alive two Years nor did the Consular right of the Tribunes of the People long continue nor was the command of Cinna or Sylla durable and the power of Pompey and Crassus devolved upon Caesar as the Arms of Anthony did upon Augustus who received all being weakned wearied tired out or spent with civil Discords under the Empire of a Prince From whose very Name the title of semper Augustus and Caesar is continued to this day which duration in no Commonwealth can be found Therefore every one that desires to live under an uniform unchangeable and durable Government must prize and value Monarchy most It is furthermore the peculiar Excellency of Monarchy that it hath no separate or distinct Interests or Designs from the Good of the Publick the End of all just Empire being the Safety and Profit of the Subjects saith a (f) Finis justi Imperii utilitas obedientium salus Ammianus lib. 30. Judicious Historian For a King neither in time of Peace or War can ever have any Good or Evil befal him wherein his Subjects have not their share It is onely in Monarchy where Paternal and Conjugal Love are in the highest degree and relation betwixt the Prince and his People the (g) Nalson's Common Interest p. 111. Blessings of Happiness or the Miseries of Infelicity are stowed in the same Bottom So that a Monarch consulting the Safety Honour Welfare Peace and Prosperity of his People doth at the same time consult his own Interest in every one of them and this must of necessity oblige him to act strenuously and constantly in all his Endeavours for the attainment of those Ends. This will induce him to exert all his Royal Vertues of Justice Fortitude c. will cause him to be watchful to suppress the Turbulent and Factious who would discompose the happy Harmony at home and be vigilant against the Attempts of Foreign Powers For the State can neither sink by Intestine Discords or fall by Foreign force but he must be ruined with it and so out of the natural Tenderness care and concern for the Safety Peace and Happiness of himself and People he must be truly a Father of his Country whereas the Members or Representatives of a Republic are at best but Guardians and greedy ones as we of late experienced who generally commit great Wastes Objection That Monarchy is apt to turn to Tyranny The common objection perpetually in the Mouths of Democratick Factious People is that Monarchy is apt to degenerate into Tyranny according to that of the (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Philosopher who having recounted the external and intrinsick causes of the decay of other forms of Governments saith that the dissolution of Kingdoms happens rarely from external Causes and so they are more durable but it may happen from two intrinsick ones viz. the Dissention of those of the Royal Family or Princes or when Kings govern something Tyrannically But this is only true where Monarchy is Absolute Arbitrary and Unbounded which in the English Monarchy is much otherwise For though the Kings of England where they have not precluded themselves by their gracious Condescentions and Grants to their People are not limited by any other Power than their own Royal Pleasure Yet their Concessions have been so many and formed into Laws as Measures and Standards of Government that they are Mounds and Boundaries which the Monarchy hath no less Prudently than Indulgently been pleased to give it self thereby to ease the Subject of any just occasion of Fears or Jealousies which receive their Birth from the formidable redundancy of their absolute Power and by this means the Government is secured from the falling intoan Arbitrary and Tyrannical way of Rulers and the Minds of the Subjects freed from the dreadful apprehension of Slavery And as by this Incomparable method of goodness and generosity in our Princes the Subjects of all conditions are the more powerfully obliged to all dutiful Allegiance to their temperate Government so the Government it self is thereby rendred more capable of effectually answering all the Ends and Intentions of Society When it is debated whether Monarchy or Tyranny be the most convenient Government the true Sence of it is this Comparison betwixt a King and Tyrant Whether the People shall live more happily when the supream Power is in one and the Person by the Laws of the Country is known whereby no Room is left for Division and Faction concerning that single Sovereign Or When one Man being more active and crafty than his Fellows who ought to have an equal share in the Authority raises a Faction upon some plausible pretences and under the colour of serving his Confederated Party perswades them to be commanded by him and so exercises the supream Power in an Illegal way which as is compassed by engaging the People in misery under colour of making them more happy so it must be kept up by as bad Arts and an Army must be maintained to make good by force what Law cannot justify In this manner as the question is to be stated betwixt a Lawful King and Tyrant So if it be enquired whether Monarchy or Aristocracy be better it is not whether a bad King be better than a good Commonwealth consisting of the Optimacy but the Comparison ought to be betwixt a good King and a good Aristocracy or betwixt them when both bad First Comparison betwixt a King and a Commonwealth Therefore it is to be considered That a People may easilier have a good King than a good Nobility taking Good in a Political Sence as providing for the Peoples Happiness because the King's Interest is the same with that of the Peoples which is a strong State-security whereas the Commonwealth of Greece
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
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
would put them upon that Dilemma will chuse to suffer if they cannot fly rather than rebel Therefore since it pleased his Majesty at his first Step to the Royal Throne which was like that of the rising Sun dispensing innumerable Blessings to his People to express his Royal Favour to the Church of England The King's Commendation of the Principles of the Church of England as to Monarchy with such an Encomium of its Members in that most refreshing Declaration at his first Council which from so just a Prince carries the Force and Energy of an Act of Parliament as well as of State in it it ought to bow the Hearts of all Men that design not to be Rebels as one Man to him Since which by the repeated solemnity of it to his two Houses of Parliament all suspicion of his Majestie 's ever acting to the contrary so long as the Subjects keep their dutiful Station is totally removed His Majesty also hath laid a solid Foundation for true Piety in the discountenancing and discrediting all forts of Vice and Debauchery by which none can doubt but himself as well as his Subjects will in short time reap happy Benefit according to that so the excellent (b) Diutius durant exempla quam mores Tacitus 4. Histor Historian Examples have a more durable force than Laws I shall conclude this particular with the famous Story of the Zealots in (c) Josephus de Bello Judaico lib. 4. c. 5. lib. 7. Judaea Those being told by Vespasian which Messages Josephus himself carried to them that he would change nothing of their Religion but maintain them therein The Evils by Rebelling upon pretence of Religion and in all their Liberties and Franchises yet under colour that they were bound to sacrifice their Lives in the defence of the Temple would never hearken to Peace upon any condition what ever but living upon Forraging Rapines Free-booty and committing most cruel Butcheries Vespasian found himself obliged to arm against them and use them with all Extremity In fine Those who pretended so much the Preservation of their Religion committed a Thousand sort of Impieties and Cruelties and themselves set the Temple of Jerusalem on Fire and at last brought utter Ruin to their Country I shall make no further Application but that from hence we may learn First That it was agreeable to Principles of Government that Vespasian though a Prince of a different Religion to the Jews should not alter their Civil or Religious Government And Secondly That the utter Extermination of a People and their Religion there was the Consequence of the Zelots Rebellion as to the apparent procuring cause for I enquire not here into the Original cause of that Nations Destruction viz. The crucifying of our Lord and Saviour I come now to consider wherein a Sovereign's care of Religion consists Wherein the Sovereign's Care of Religion consists which would carry me into a dangerous Ocean if I should survey all the Rocks Creeks and Quick-sands to be avoided in this matter At the best I shall find an high rolling Sea as that in the Bay of Biscay if I escape the difficult and dangerous passage betwixt Scylla and Charybdis First therefore I shall consider the Obligation the Pagan Romans thought they had not to make any Innovation in matters of their Religion with some Reflections upon it Secondly Consider the Condition of People under Diversity of Religions Thirdly The Roman Heathens not for change of Religion Speak something of the Diversities of Religion sprung up in the time of the late War And Lastly Something concerning Toleration But I must praemonish the Reader that I intend not to treat of these either as Divine or Statesman but only as a Lay-man that loves Order and Peace in transitu as a Parergon First then as to the Heathens we find that remarkable Advice of (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cassius lib. 52. Mecaenas to Augustus That he ought to worship the Deity in all Methods and at all times himself according to his Countries Laws and cause others to do so and further adds That he should restrain those that would innovate in Divine things not for the cause only of the Gods but because those that bring in new Deities do drive men to make other dangerous Changes and from thence Conspiracies Sedition Conventicles Cabals c. which are things no ways conducible to the benefit of Government In which we may consider Mecaenas to advise like a Statesman considering that Augustus had but newly extricated himself from a great and dangerous War for no less than the Empire Therefore it behoved him to make no Alterations in Matters that might endanger the Settlement of his present Estate Therefore we find That Augustus laid aside the name of Triumvir contented with the Consulship and for defence of the People with the Tribunitian Authority which were old Offices the People were acquainted with and that he attracted the Soldiers good Will to him by Gifts the Peoples by Provision of Food and all with the sweetness of Peace arising by (d) Paulatim insurgere munia Senatus Magistratuum 〈◊〉 in se trabere aullo adversante Tacit. 1. Annal degrees to draw to himself the Imployment and Authority of the Senate the Magistrates and the Laws none opposing him How far this is to be imitated by Princes in the Circumstances of Augustus I leave to others to determine As to the general Sentiment that the Heathen Roman Religion was not to be changed I shall content my self with two Authorities of the great Orator who in one place (e) Majorum instituta tueri sacris caeremoniisque retinendis sapientis est Patrios ritus migrare aut violare ubique gentium nefarium sir Cic. de Divinatione saith That it is the part of a wise Man to defend the Institutions of their Ancestors in retaining sacred Ceremonies and that in all Nations it is reputed wicked to violate and banish our Countries Rites In another place (f) Omnes Religione moventur deos patrios quos a majoribus acceperunt colendos sibi diligenter retinendos arbitrantur Cic. in Verrem he pronounceth it absolutely That all are moved with Religion and judge their Country Gods which they have received from their Ancestors to be worshipped and retained I am sensible that if this were yielded to Christianity would not have been propagated in the World For if it had not been lawful to alter the so long established Idol Worship and Polytheism the Doctrine of Christianity had been shut out But on the other side when I consider how Christianity was propagated by the working of Miracles and by the Force and Energy of Conviction upon the Minds of such as would admit the Explanation and Dilucidation of the Doctrine and the Christians patient sufferings under the Heathen Persecutions and peaceable awaiting till God Almighty disposed the Emperor Constantine's Heart to embrace the saving Doctrine of
the Spaniards there were as many Obelisks or pointed Pillars set about their Graves as they had killed Enemies All which and infinite more Places in (c) The necessity of having a Standing Force is for preventing Rebellion and defending against Foreigners as appears in Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 7. c. 8. him and other Authors produceable sufficiently clear the necessity of a Prince's both having and encouraging Military Force and all are as so many Arguments That it is very necessary and conducible to the Prince's Glory and Safety as well as his Peoples that he be not only valiant and couragious in his own Person but that he understand the Office of a great General There are none more famous in the World than such Princes as have themselves led and headed their own Armies as is most eminently proved in Alexander the Great and Julius Caesar So in our King Richard the First and Edward the First Hence it is that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diâ— l. 13. Caesar was wont to say There are two things which obtain keep and encrease the Princedom viz. Soldiers and Money For as the great (e) Non ignavia magna imperia continâ—ri sed virorum armorumque faciendum certamen Historian observes By Sloth no great Empires are held together but it must be done by Force of Men and Arms It being (f) Sua retinere privatae domus de alienis certare regiâ—m 〈…〉 15. Annal. the part of a Private Family to retain its own but to carry Arms abroad is a Kingly Praise Such a Prince who hath when a Subject hazzarded his Life for his King and Country shown his great skill in ordering and providing for his Army in disciplining it How a Military Prince prevents Rebellious of his Subjects hath been fortunate and successful hath a Genius to military Employment a brisk and vigorous Soul not only when he comes to be Sovereign himself puts a fresh Spirit into his People by raising their Hopes and Confidence that he will encrease the Glory of his Nation but it makes him secure at home from Seditions and Rebellions For he is very fool-hardy or desperately Revengeful that will challenge a single Man who is experimented to have Valour and Skill at his Weapon much more is he who knowing his Prince such an one and who hath the Power of his Kingdom to assist and defend him will offer to molest his peaceable Reign unless he find some advantagious opportunity strangely favourable to his Design or take some Season before such a Prince be well setled in his Throne as despairing ever after to effect any thing and be in that desperate Condition that if he then cannot push forward his Designs he must for ever live inglorious and miserable Such was the Case of the rash ingrateful and aspiring Duke of Monmouth who to the eternal discredit of the name of Protestant so unpolitickly as well as maliciously raised the late Rebellion against his Lawful Soveraign pretending a Legitimacy which his Father that the best of all Men living knew the falshood of disowned and more than once made publick Declaration of it How he prospered in this attempt the World knows and if He and his Advisers had not been besotted they might have easily foreseen Besides this great and happy advantage to a valorous and Military Prince How a couragious Prince secures his Subjects from Foreign Enemies in the securing his own Country in Peace within themselves the Benefit is likewise great in the preventing of any affronts injuries or Indignities to him or his People from any of his Neighbours for none dare (g) Nâ—mâ— provocare au let aut facere in juriam ei Regno aut populo quem intelligit expeditum atque promptum ad vindicandum Vita Alex. provoke or do Injury to a King his Kingdom or People saith Lampridius that knows the Prince prepared forward and ready to vindicate his People This military Genius in a Prince being supperadded to his other Royal Vertues and Qualifications furbisheth all their Arms sets a fresh Gloss and Lustre upon them and such a Prince being generally successful in his Attempts for that commonly gives the first notice of his Courage and Conduct will have every one readily flock to his Standard to (h) Objicient se mucronibus insidiantium se suaque jactabunt quocun que desideraverit Imperantis salus Sen. 1. de Clem. expose themselves betwixt him and the points of Traitors Swords will have them throw themselves and their Fortunes whereever the safety of their King requires it So Cicero notes that Fabius Maximus Marcellus Scipio Marius and other great Generals had the Emperors Office and Armies committed to them not only for their Vertues but also by reason of their fortunateness to whom (i) Cic. pro Manilio Quibus etiam venti tempeslatesque obsecundant the Winds and Tempests have been favourable It greatly (k) Vehementer enim pertinet ad bella administranda quid hosâ—es quid socii de Imperatoribus existiment Idem conducing to the management of War what opinion the Enemies and Allies have of such Generals as the same Orator notes and the like may be said of Warlike Kings What immortal Glory is it to England that it hath had King Richard the First Of King Richard the First who carried his victorious Ensigns to the Holy Land What a Memorial of his Name and of the Prowess of his People hath King Edward the First left to all Posterity by the advancing his conquering Armes into the very High-Lands of Scotland Of King Edward the Third and the Black Prince What renown did King Edward the Third and the Black Prince his Son win in France when they not only won so great Victories but brought the King Prisoner and what no Nation else can boast of had at the same time the King of Scotland also Prisoner It may be easily conceived that these two valiant Princes and the Sons of that great King spirited the whole English Nation and in that Age the Renown of it equalled what now the French ascribe to their great King The Annals swell with the Atchievements of Henry the Fifth who in so few Years Of Henry the Fifth upon the matter subdued all France So that his Infant Son was Crowned King at Paris It is not to be expected that many Ages can produce such Examples but every Reader of History may observe That in every Age some one or two Crowned Heads carry the Trophies from all the rest fill their Countries with Triumphal Arches and raise pyramids of Glory to their own and their Countries high Renown A strange Factiousness in the Reigns of our three last Kings and the dreadful Rebellion Why our three last Kings could not appear so Formidable abroad have deprived them of the opportunity of showing the English Prowess on the publick Theater as it had been before Yet when they were employed they
in the Assyrian Empire Nebuchodonosor is styled King of Kings Daniel c. 2. and after the translation of this Empire to the Persians Artaxerxes Mnemon in his Commission to Ezra for the Restitution of Jerusalem and the Temple thus salutes him Artaxerxes King of Kings to Ezra the Priest And on the Great Cyrus his Tomb this Epitaph was written in Persian Characters if you believe the Authors that have it (r) Eustach ad Dionys Strab. Geog. 15. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Here I Cyrus lie who was King of Kings And the bare Name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King without addition is especially used for the Persian whence the Nation is styled also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Kingly Nation (s) Diodor. bibl 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sesoosis the same with Sesostris in Herodotus King of Egypt attributed to himself the Title of King of Kings in his erected Columns of Victory And (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Earth and Water given as Tokens of Homage Plutarch reports That Tigranes King of Armenia was angry and would not vouchsafe to answer Lucullus because in his Letter he had styled him King only and not King of Kings The Acknowledgment of Regal Supremacy paid by way of Homage from Princes or People under the Subjection of such Kings was the Acceptance upon their Demand of Earth and Water A special Example of which is in (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herâ—dot in Melpom. Darius's Letters to Indathyrsus King of the Scythians where he first invites him to the Field but if he would not then bringing to the Sovereign as Gifts Water and Earth come to a Parley as the Words run So in the Assyrian Empire the King commands (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. Judith Olophernes That he should bid all the Western Nations prepare him Earth and Water By the yielding up of these two Elements they acknowledged a giving up to those Sovereigns their Jurisdiction over them When William the Conqueror landed at (x) Malmesh de Gestis Reg. lib. 3. Hist Norman apud Camd. Hastings in Sussex as he came out of his Ship he fell down and one of his Knights told him Sir you have possession of England and shall be King and observing that he had took up Sand and Earth in his Hand he added And you have taken Livery and Seisin of the Country So when Land is sold in England the way of receiving Possession is by delivering a Clod of the Earth and a Twig of Wood if any be growing on it To denote also the Sovereignty of such Princes kissing of the Feet or embracing their Knees or Adoration was used Kissing the Teet Knees and Hands of Princes (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herodotus saith When the old Persians meet you may know whether they be equal or not for in Salutation they kiss one another but if one be something inferiour they kiss only the Cheeks and if one be far more ignoble he falls down adoring the other The manner of which Adoration is yet observed in the Eastern Empires as may be seen in the Prints of them in Mr. Ogilby's Asia especially in Japan Thence we have Adorari more Persarum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is expressed by Euripides thus personating Phrygius to Orestes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Falling down I adore thee O King after the Persian manner In Alexander's turning the Grecian Liberty into this Servitude Q. Curtius expresseth it by Venerari procumbere humi corpus prosternere and thereof Justin saith the (z) Retentus est a Macedonibus mos salutandi Reges explosa adoratione Jam coepisset Heliogabalus adorari Regum more Persarum Macedonians retained the manner of saluting their Kings exploding the Adoration Lampridius speaking of Alexander Severus saith That he forbad himself to be adored but Heliogabalus began to be adored after the Persian manner As to the Kissing the Learned (a) Tit. Hon. c. 3. Selden saith It was usual in Adoration among the Romans either to kiss the Images of their Gods or adoring them to stand somewhat off before them (b) Cicero in Varr. Act. 5. Lucret. lib. 1. Sape salutantum c. solemnly moving the Right-hand to the Lips and then casting it as if they had cast Kisses and turning the Body on the same Hand which was the right Form of Adoration and it grew by Custom first that the Emperours being next to Deities and by some accounted as Deities had the like done to them in acknowledgment of their Greatness After some of the Roman Emperours would be called Jupiter be supposed carnally to lie with Venus and the Moon and upon their infinite such-like frantick Conceits pretended themselves to be Divine they were not satisfied with Those usual Customs but thought themselves much wronged and their Majesty impaired if they who saluted them (c) Dio Cass Hist 59. presumed to kiss above the Knee We find Examples of Kissing the Hands and Feet in Caligula Therefore (d) Homo natus in hoc ut mores liberâ—â— civitatis Persica servitute mutaret 2. de Benef. c. 5. Seneca speaking of his offering his Feet to kiss says He was a man born to that so as to change the Customs of a Free City into Persian Servitude Maximinus Junior allowed the kissing the Knees Feet and Hands and Diocletian according to Pomponius Laetus published an (e) Vbi omnes sine generis discrimine proâ—â— rati pedes exosâ—ularentur exornans calceamenta auro gemmis margaritis Edict That all without distinction being prostrate should kiss the Feet therefore he adorned his Shoes with Gold Gems and Pearl Yet this was not allowed by all For Tiberius as Suetonius tells us oscula quotidiana prohibuit edicto and the elder (f) Dii prohibeant ut quisquam ingenuorum pedibus meis osculum figat Capitolin Maximin although a Tyrannical and most wicked Prince yet would suffer none to kiss his Feet saying The Gods forbid that any Freeman kiss my Feet And Alexander Severus was only saluted by his Name God save thee Alexander as Lampridius tells us who adds That if any bowed the Head or spoke any thing like a Flatterer if his Quality permitted he was spurned away or if his Dignity allowed not such an Injury to be done him he was laughed at aloud And (g) Lib. 10. Epig. 72. Martial in Trajan's time rejects those base Flatteries that had been used to Domitian thus Ad Parthos procul ite Pileatos Inopes humilesque supplicesque Pictorum sola basiate Regum Princes use now only the kissing of the Hand besides a profound Obeisance to them in stead of these forementioned Adorations and the kissing of the Hand is offered frequently as a Testimony of serviceable Love to other Great Persons according to that of (h) Inest in aliis partibus quaedam Religio sicut dextra osculis aversa appetitur fide
porrigitur The Romans after they were a Commonwealth hated the Name of King Pliny As the Back of the Right-hand with a kind of Religiousness is desired so with an assurance of Faith it is stretched out This Name of King was among the Romans after they setled themselves under the Government of a Commonwealth reputed so contrary to their Liberty as implying in its Office too great an Absoluteness of Power that in solemn memory of its being cast out by Brutus they yearly celebrated on the Seventh of the Kalends of March our Twenty third of February their Feast Regifugium And lest the giddy Multitude might desire again to have a King they prohibited that no Concourse for Merchandise should ever happen upon the Nones of any Month King Servius Tullius his Birth-day they knew was in the Nones but not of what Month therefore they provided it fearing saith (i) Veriti ne quid nunâ—inis collecta universitas ob Regis dâ—siderium novaret Saturnal c. 13. Macrobius lest the Multitude gathered together at such Fairs should innovate any thing by the desire of a King And (k) Regem Romae posthac nec Dii nec homines esse patientur De Divinatione cap. 2. Cicero though he acknowledged that Caesar was revera Rex fully a King in Power yet upon hate that continued of that Title tells us That hereafter neither Gods nor Men would permit any to be King of Rome Therefore to palliate as Mr. (l) Tit. Hon. cap. 2. Augustus denies the Title of King Selden saith some part of his Ambitions Caesar himself being saluted King by the Multitude withal perceiving that it was very distasteful to the State by the Tribunes pulling of the white Fillet from his Laurel answered Caesarem se non Regem esse refusing it utterly and consecrating the Diadem which Anthony would have often put upon his Head to Jupiter Yet the whole People were sensible that his Authority differed only in Name from that of King as appeared by his Sentiment of it who subscribed Julius his Statue with Brutus quia Reges ejecit Consul primo factus est Hic quia Consules ejecit Rex postremo factus est Thus much may suffice to shew Because the Absoluteness of Kings was against their Liberty That the Romans judged a King to have such Absoluteness as in their Free-State was not to be endured when as in the Change to Emperours they underwent more by some of their Arbitrary Rulings than they did under Kings And though the Terms were milder yet the Yoke of them was heavier But such is the Nature of the Multitude that if their Governours keep but the old Name of the Magistracy they readilier yield Obedience to them such power hath Custom This Observation made Cromwel content himself with the Name of Protector under which by his Arts and Army he exercised more Arbitrariness than ever had been by any King of England I come now to the Title of Emperour This at the first only denoted a General or Leader of an Army Title of Emperour first as General So Julius Caesar having made himself Master of the Roman Free-State thought it safer to retain than innovate his Title of Supremacy Therefore having the perpetual Office of (m) Honores nimies recepit ut continuum consulatum perpetuam Dictaturam praefecturamque morum insuper praenomen Imperatoris Sueton. de Jul. Caesare Dictator and Consulship with the place of General or Imperator as the word had Relation to his Military Force he took that also being as willingly given as the rest for a perpetual Title this Title of Imperator being assumed both by Brutus and Cassius as appears in their Coins though they pretended to be the greatest asserters of the Roman Liberty and the like occurrs in the Coins of Antonius Lepidus and the thirty Tyrants and others This Title of Imperator is said to have been a (n) Vita Jul. Cas 〈◊〉 Praenomen by Suetonius but it was often used after it which when it was it denoted either only or chiefly some great performance by Arms in setling or encreasing the Empire but when a Sirname in those elder times it signified only the Emperor's Supremacy in the State so in the Coin of Augustus where the Inscription is IMP. CAES. AVG. IMP. IX TR. P.V. The Fore-name Imperator signifies his Supremacy and the latter signifies he had been General and as such it may be deserved a Triumph nine times The TR. P. V. For Tribunitiae potestatis quintum shews how often he had been Tribune of the People which was every Year renewed therefore in that the number of the Years of their Empire was expressed as (o) Cassius Hist 53. Dio observes So that what Tacitus relates of Tiberius was most true that eadem Magistratuum vocabula he retained the old Names of the Magistrates so that the first Emperors Authority and Soveraignty consisted in the Power of the Consuls Dictator Tribunes of the People and the Title of Prince Title of Prince The Title of Princeps Principatus and Principium were proper Names also for these Emperors and their greatness therefore (p) Augusius cuncta discordiis civilibusfessa nomine Principis sub Imperium accepit Tacitus saith that Augustus took the Empire under the name of Prince all being wearied with civil Discords though Suetonius saith of Caligula that Title was wanting but that he should suddenly take the Diadem and change the show of a Principality to the form of a Kingdom Now it is to be observed as the Title of Emperor was taken from the Military Employment of a General so this of Prince signified the Superiority of them in the Senate For the Title of Princeps Senatus was known familiarly in Rome and so might upon that Ground be used without Envy Concerning the Grecians using 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for Emperor the difference betwixt the Eastern and Western Empire about both their Titles and the more modern use of both I must referr the Inquisitive Reader to the often but never too much to be commended (q) Titles of Honour par 1. c. 2. Mr. Selden and shall only note out of him that divers Civilians especially of Italy and Germany which profess the old Laws of Rome tell us That the Emperor is at this day of Right Lord of the whole World or Earth as their Text also (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 F. ad Leg. Rhod. The Roman Emperours not Lords of all affirms besides divers other flattering Passages in good Authors of the ancient Empire as that of Corippus to the Emperor Justin Deus omnia Regna Sub pedibus debit esse suis And Julius Firmicus (s) Totius orbis terrarum spacium Imperatoris subjacet potestatibus etiam ipsum eorum Deorum numero constitutum esse quem ad sacienda conâ—ervanda omnia Divinitas statuit universalis Mathes lib. 2. c. 33. hath this courtly Expression That the Compass of the whole Globe of
of Majestas Title of Majesty As Your Majesty His Majesty Imperial Majesty The word it self denoting all kind of special Dignity as if we should say in English Greatness as well in private Persons as supream Princes and Deities Ovid (k) Fastorum lib. 5. elegantly describes Majesty to be born of Honour and Reverence and he saith Majesty continued among the Gods until the Rebellion of the Giants against Jupiter when she so daunted them that afterwards she was honoured for it with a place next to Jupiter whose Kingdom she defends by the greatness only of her Presence and unarmed and that she came down also among Men since which both Supream and Subordinate Princes and some also of all Kinds have had their special Dignity from her Presence with them whence Majestas Pueri Matronae Virginis c. and as Valerius Maximus (l) Quasi privata 〈…〉 clarerum virorum sine Tribunalium fasiigio Lib. 3. c. 10. calls it a private kind of Magistracy a Majesty of eminent Men without the Honour of Tribunalship or any other Office But it is not of this kind of Majesty I now treat but as it is applicable to the Sovereign So in Cicero Majestas Populi Romani denotes the Supream Dignity of the State of Rome as (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In legatione in Foed Aetolorum Polybius calls it the Empire and Power of the People of Rome Afterwards this Majesty of the People or of the whole Empire and State was cast upon the Emperors as a Characteristick of Soveraignty and then it was Majestas Imperatorum Whence it grew into frequent use to write (n) Gruteri Inscr p. 246. n. 3. NVMINI MAJESTATIQVE EJVS DEVOTISS or DIC ATISSIMVS as in that Inscription in Tarragona in St. Barbara's Church of Septimius Acindynus to the Emperor Trajan From the use of Majesty thus applied came the name of Crimen Majestatis to denote that offence which was committed against the Dignity of the State of Rome or against the Emperor So (o) Majestatis crimen illud est quod adversus Pop. Rom. vel adversus securitatem ejus committitur P. ad Lâ—g Jul. Majest lib. 5. Vlpian saith It is that which is committed against the People of Rome or their Security (p) Majestatem minuisti quod Tribunum Plebis de Templo deduxisti De Invent. lib. 2. And Cicero calls it a Diminution of Majesty to draw a Tribune of the People out of the Temple And Justinian saith That the (q) Lex Julia Majestatis in eos qui contra Imperatorem vel Rempublicam aliquid moliti sunt suum vigorem extendit Instit Tit. de Publico Judicio Julian Law of Majesty extends its Force against them who attempt any thing against the Emperor or the Commonwealth And for this offence the word Majestas is used singly by (r) Hujus in metum penitus sustulisti contentus magnitudine qua nulli magis caruere quam qui sibi majestatem vindicabant Panegyr Pliny to Trajan That he had wholly taken away the fear of too frequent questiou upon that crime being contented with the greatness of his Power or Office which none more wanted than those that challenged Majesty to themselves as if he had said that his mild Empire and Greatness was better to himself and his People than theirs who had a more absolute Sovereignty This Expression of the Emperors by the abstract Majestas wherewith Numen also was commonly joyned in Inscriptions became it seems the Example by which the ensuing times brought in the frequency of those other Abstracti which designed the Emperors as well in the first as the second and third Person as Perennitas Aeternitas Tranquillitas Serenitas c. which are most obvious in the Rescripts of the old Emperors that remain in the two Codes of Theodosius and Justinian And in the Greek Empire this Attribute of Majesty was denoted by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Emperor had with the Addition of Sacred and sometimes with (s) Vide Codin 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mâ—ursium in Glossar Graâ—o-Barb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serenissima jestas There are great Numbers of other Epithetes that have been given to Soveraign Princes Other Attributes given to Princes as among the Romans Pius Foelix Clemens Tranquillus Sanctissimus Pater Patriae In the later times both in the Empire and Kingdoms Clementissimus Excellentissimus Invictissimus Illustrissimus Serenissimus Gloriosissimus Potentissimus Sacratissimus Celsissimus Religiosissimus and some have had peculiar Attributes The Emperor is stiled Semper Augustus the King of England Fidei Defensor the King of France Christianissimus of Spain Catholicus Most of these Attributes were given to denote the Eminence of their place or the peculiar Vertues such Princes excelled in and under the Greek Empire the Epithetes agreeable to their Language and the Attributes of the Eastern Monarchs are to this Day more luxuriant So we find Emanuel Comnenus in his Letter to Frederic Barbarossa writes thus (t) Albertus Stadensis in Chron. Anno 1179. Manuel in Christo Deo fidelis Imperator Porphyrogennetus Divinitus Coronatus Regnator potens excelsus semper Augustus Moderator Romanorum magnificus Nobilissimo Gloriosissimo Regi Almanorum Imperatori ac dilecto Fratri Imperii nostri salutem So (u) Canis Antiq. â—ect Tom. 5. p. 2. Isaacus Angelus useth this insolent Title as Mr. Selden calls it to the same Barbarossa Isachius a Deo constitutus Imperator Sacratissimus Excellentissimus Potentissimus Sublimis Moderator Romanorum Angelus totius Orbis Haeres Coronae magnae Constantini Dilecto Fratri Imperii sui Maximo Principi Alemaniae c. So the Sirnamed (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Camerar ad aure â—m Andâ—onic Bullam p. 9. Emanuel stiled himself Governed by God Heir of the Crown of Constantine the Great and observing of his Laws The Grand Seignior besides the Enumeration of all his vast Dominions particularly stiles himself By the infinite Grace of the just great and most puissant Creator and by the abundance of the Miracles of the chief of his Prophets Emperor of Victorious Emperors Distributer of the Crowns of the greatest Princes of the Earth c. Lord of Europe Asia and Africa conquered by his victorious Sword and powerful Lance c. and so after the recital of the several Kingdoms he saith of many other Countries Villages and Seigneuries Conquered by his Imperial Power and Justice c. By the Grace of God the resort of the great Princes of the World and the refuge of Honourable Emperors This was from Achmet Son of Mahomet to Hen. IV. of France A late Author (z) Treatise of Absolute Power p. 32 33. who takes all the Advantages to depress Monarchy out of a pretence of declaring against the too great absoluteness of Princes tells us That as the Majesty and real greatness of the Emperors declined and as
WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
answer the Varieties and unthought on plottings of Mans Nature and in Tract of Time Laws at first just or in terrorem become unprofitable and harsh and this moderating of Laws which is called saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Equity is so annexed to the Prince that by no decree of Man it can be pulled from it This Absoluteness I have hitherto mentioned out of such great Authors How far the Kings of England may dispense with their Laws is not practised by the English Sovereign for he challengeth no such Power to make or abrogate Laws without the Concurrence of the two Houes But he hath a sufficient Prerogative by dispensing conniving or putting some Laws more in Execution than at other times so to manage the Execution of the as the Government and consequently the Peoples safety be not prejudiced So though there be a Law for Triennial Parliaments yet when a Prince finds a Potent Faction that may influence the Electors so as the meeting of such a Parliament at such a time may be hazardous to the publick there being no Penalty can be inflicted on a King for the Omission and the Danger being visible that such a Factious Parliament was only wanting to bring to perfection the Design of Traiterous and Seditious Persons It is very agreeable to Reason that a Prince in such a juncture should prefer the publick Peace of his Kingdom and the security of his Crown by the omitting such Summons than to hazard all by convening them There are other Cases may intervene wherein the Reason of State the Salus publica may require the dispensing with or suspension of the Execution of some Laws As in time of open Rebellion the King 's arming of such as he may most surely confide in though they take not such Oaths or be so qualified as the Laws require and as in several other Particulars might be instanced in I shall only add two Authorities of our own Country who were well versed in the matter the one a great Divine and the other as great a Lawyer and Statesman First the learned (i) Vsher's Power of Princes p. 76. Primate saith Such positive Laws being as other works of Men are imperfect and not free from any Discommodities if the strict Observation thereof should be pursued in every particular It is fit the Supreme Governour should not himself only be exempted from Subjection thereunto but also be so far Lord over them that where he seeth cause he may abate or totally remit the penalty incurred by the breach of them dispense with others for not observing of them at all yea generally suspend the Execution of them when by experience he shall find the Inconveniences to be greater than the profit that was expected should redound thereby to the Common-wealth The Second Authority shall be that of the Earl of Clarendon (k) Survey p. 127. who affirms That by our Laws the King hath in many Cases the Power of dispensing with the Execution of the Law especially in granting pardon for the transgressing of them except in those Cases where the Offence is greater to others than the King as in murder of an Husband or Father therefore upon an Appeal by them the Offendor may suffer after the Kings pardon which shows how tender our Laws are of protecting the Lives of Subjects This Prerogative of Kings (l) 3. Rep. Bodin avouches among the Rights of Sovereignty to pardon the Persons the forfeiture of their Goods and to restore the attainted Honours of those condemned by righteous or unrightcous Judgment according to that of St. (m) Q. 115. ex Veteri Novo Testamento Hilary in St. Augustine Imperatori soli licet revocare sententiam reum mortis absolvere ei ignoscere That it belongeth only to the Emperor to revoke the Sentence or Judgment and to absolve and pardon the guilty For as Themistius saith One thing becoms a Judge and another thing a King the one is to observe the Law the other hath power to correct the Laws themselves and to qualifie the severity and harshness of them as being himself a living Law and not confined to the unchangeable and unalterable Letter For that end saith he it seemeth God did send from Heaven the Regal Power into the Earth that Men might have a refuge from that dead and immoveable Law to the living one as he instanceth in Capital Offenders For we have seen saith he Men returned to life from the Gates of Death whom the Law indeed sent thither but the Lord of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 brought back from thence again As to the Power of Equity claimed by the great Civilians the Administration of that is vested in the Chancellor or Lord-Keeper of the Kings appointment who is the Keeper of the Kings Conscience or Dispenser of that reserved Power in the King CHAP. XX. That the Sovereign is not to be resisted or rebelled against upon pretence of ill Government Irreligion or any such matter OUR Republicans of 1641. set themselves with all their skill and cunning The Necessity of this Discourse as well as force to overthrow the Doctrine of Non-resistance and to establish that of its being lawful not only to rise in Arms for the defence of their Liberty Property and Religion the gilded pretences of all Rebellions but to prosecute that blessed King and all his Loyal Subjects in the highest Degree of Cruelty and Revenge that they could devise or their success embolden them to commit Therefore it is a most necessary Duty of all that wish well to themselves as well as the Government to oppose such dangerous Positions and Practices The Authorities I have cited in the two Chapters of Sovereignty are but the gleanings of what may be found in learned Men on this Subject and since I shall have occasion hereafter when I treat of the Subjects duty to handle this matter more particularly I shall be the shorter in this and refer the curious Reader to the elaborate Treatise of Mr. Dudley Digs Of the unlawfulness of Subjects taking up Arms against their Sovereign and to the Glory of his Age for Learning Loyalty and Sanctity the Lord Primate Vsher's Power of the Prince and His Second Part of Obedience to the judicious and learned Sir George Mackenzie his Jus Regium and (a) Arnisaeus Zeiglar de Jure Majestatis c. 1. n. 12. Salmasii Defensio Regia Grotius lib. 1. c. 4. de Jure Belli Dr. More 's Divine Dialogues Dr. Mouliu 's Philanax Anglicus Sam. Petit 's Diatriba c. others that treat of this Subject ex instituto desiring all those who have imbibed or would avoid any of these dangerous Principles that they will seriously consult those Authors out of whom I shall only hint some few of their Reasons and Arguments that may be as Antidotes against the most destructive poison of resisting Sovereign Princes or allowing any Order of Subjects the Liberty upon any Pretence of
Cabedo Pract. Obs par 2. decis 40. would himself For it is essential to Majesty and Soveraignty and cannot be abdicated while he remaineth King nor separated without the diminution or destruction of Majesty How both King and People are obliged to defend the Rights of the Crown will appear in the Laws ascribed to King Edward the Confessor in the 17.35 and 56. As to the Particular How absolutely necessary the Royal Assent is to all Laws in the Act of Recognition to King James the First it is fully expressed thus Which if Your Majesty shall be pleased as an Argument of your Gracious acceptation to adorn with Your Majestie 's Royal Assent without which it can neither be Compleat and Perfect nor remain to all Posterity according to our Desire as a Memorial of your Princely and tender Affection towards us c. Against what I have laid down those who were for co-ordinate Powers in the two Houses object many things Answers to some Objections against the King's sole establishing of Laws some I have answered in the Chapter of the King's Sovereignty and I shall meet with others in the Chapters of Parliaments And shall here only take notice of some omitted or not fully answered there Against the assertion That the Liberties granted by King Henry the Third were by way of Charter they produce the Preamble (r) Coke 2 Instit fol. 525. to the Confirmation of King Edward the First of Magna Charta La Charte des Franchises la Charte de la Forest les queux fuerent faitz per Commen de tout Royalm en le temps le Roy Henry pier soient tenue c. and Charta de Foresta wherein he saith that the Charter of Liberties and the Charter of the Forest made by the Community of all the Realm in the time of King Henry our Father shall be kept c. To which with the Judicious Doctor (s) General Preface to Compleat History p. 41. The ancient Kings sealing of Charters of Liberties reputed Laws Brady may be answered that these were the Petitions and Requests of the Community of the Kingdom and may be said to be made that is digested by them into the form of a Charter So the Barons offered King John's Magna Charta to him ready drawn in a Schedule and forced him to grant it and cause his Seal to be put to it and the whole strength and validity of the Charter lay in his Grant and the Confirmation of it under his Seal This was the only Security they desired and demanded no other and the Tenour of all the Charters were accordingly We grant We confirm We give for us and our Heirs to them and their Heirs c. Which Grants and Concessious were always in these times accepted and acknowledged to be sufficient without the least doubting or scruple There was no other Power or Authority that gave them being but the King's so that it seemed the great Councils or Parliaments of those times owned the Kings Charters under Seal and the Grants made by them to the People to be of good force and effect and that their Petitions to which he gave his assent and caused to be put under his Seal were by them accepted and from time to time acknowledged as firm and valid Laws The same learned (t) Idem p. 67. The Laws planted by Kings Doctor Brady observes that Sir Edward Coke hath a formal way of speaking The Law doth this and The Law doth that This is Law That is by Common Law of England abstracting it from any dependance upon or Creation by the Government as if it had been here before there was any and had grown up with the first Trees Herbs and Grass that grew upon English Ground and had not been of our antient Kings and their Successors planting by assistance and advice of their great Councils in all Ages as it was found expedient either by them or upon Petition and Request of their People which is acknowledged by all the Bishops Earls Barons and People present at the (u) Claus 1 E. 2. m. 10. dorso Coronation of King Edward the Second in these words Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the antient Kings of England your Predecessors true and devout to God and namely the Laws and Customs and Liberties granted to the Clergy and People by the glorious King Edward your Predecessor Another Objection some make against the Absoluteness of the King's Power Second Objection when it is said in antient Statutes The King ordains The King wills that it hath been resolved by many of the Judges (w) Coke 8. Report s 20. b. that if these Statutes be entred in the Parliament Rolls and allowed as acts of Parliament it shall be intended they were by Authority of Parliament With the Judicious Dr. Brady I shall not enquire how such Entry and such Allowance without any Words in the Statutes to that purpose can make them to be by Authority of Parliament But we may he sure those Words The King ordains The King wills being pronounced in Parliament and recorded in the Rolls thereof do clearly prove the King's Authority and Power in making Laws to be far greater than many Men would allow him or have him to enjoy (x) Lib. 3. c. 9. Bracton and the Author of (y) Lib. 1. c. 17. â—leta applying the Passage of the Civil Law Quod Principi placet Legis habet vigorem to the King of England say That Clause ought not to be understood of every thing that is rashly presumed to be his Will but of that which is justly determined upon good Advice and Deliberation by the Counsel of his Magistrates (z) Râ—ge Authoritatem prastante the King giving it Authority and confirming it for a Law and from hence (a) Cum ipse sit Author Juris non debet inde Injuriarum nasci occasio unde Jura nascuntur infer That when he himself is the Author of the Law Injustice ought not to spring from the same Fountain from whence the Law doth spring It is no diminution of the Sovereignty of a Prince in the matter of making Laws or repealing them to have the Assent of the Nobles and such a select Body of Great and Wise Men as the House of Commons are But when as in the Parliament 1641. the Two Houses claim a Co-ordinate Power and would make their Advices be swallowed as Commands it is this that all Loyal Persons should oppose We generally understand that the Persian Monarchy was as Absolute as any yet in it we have a manifest Discovery of the Concurrence of the Nobles in preparing a Decree The Persian manner of making Laws yet they wanted the King's establishing the Decree by his signing it whereby it might not be changed and Grotius thinks they signed it also (b) Dan. cap. 6. v. 7 8
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore deman◠Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
as well as Norway which was the reason why William the Conquerour understanding that the Danish Law was used in that part where the Danes had settled themselves he preferred them before other Laws because his Country of Normandy was sprung from the Danes and Norwegians and it was with much difficulty that he was perswaded against imposing them upon the whole Kingdom saying the Danes and Norwegians were as sworn Brothers with the Normans These Danes entred about the year 790. and were at last overcome by King Alfred and by agreement betwixt him and Guthrun King of the Danes who governed the Kingdom of the East Angles and Northumbrians Guthruns People enjoyed the Danish Laws which differed from the other in nothing so much as the proportion of the Mulcts King Edward the Elder Aethelstan Edmund and Edgar made Laws but from the time of Edgar to Edward the Confessour the Danes having the principal Command the Danish Laws mostly prevailed But Edward the Confessour of these three Laws composed one which saith the Monk of (d) Lib. 1. c. 50. Edward the Confessor 's Laws composed of all Chester are called the Common Laws and to his Days were called the Laws of King Edward By all I have hitherto noted concerning the Laws either made in Germany France Lombardy Burgundy Bavaria or other Countries after they came to have any established Government of their own or in England during the Heptarchy It is apparent whoever was Soveraign imposed the Laws which as to the Saxons in the next Chapter I shall make particularly appear When the Roman Imperial Law began to be disused That the Roman Laws begun to be disused as soon as their Empire declined and was broken is as manifest for these several Nations by the appointment of their Soveraigns had their unwritten Customs and Laws revised and according to the suitableness of them to the Government of their People had them writ into Books and enjoyned them to be observed by their Subjects To make it evident that the Imperial Roman Law was much disused after Justinian's time upon the account of other Soveraignties being established which acknowledged not that dependence upon the Empire as formerly I shall offer something from Mr. (e) Notes upon Fortescue p. 20. Selden who if any other is to be credited in this kind of reading after I have said something of Justinian The Emperour Justinian (f) Proaem de Consirmatione Institutionum Of Justinian 's Laws in the year of our Lord 565 by the help of Tribonian Master and Exquaestor of the Sacred Palace and Exconsul and of Theophilus and Dorotheus Illustrious Men of whose Skill and Knowledge in the Laws and their Fidelity in observing his Commands the Emperour had manifold experience of Although he had commanded them by his Authority and Perswasions to compose those Institutions that the Subjects might not learn the Law from (g) Non ab Antiquis Fabulis discere sed ab Imperiali splendore appetere Breviter expositum quod antea obtinebat quod postea desuetudine inumbratum Imperiali remedio illuminatum est Legimus recognovimus plenissimum nostrarum constitutionum robur eis accommodavimus Ancient Fables but from the Imperial Splendor as he calls it desire them and after fifty Books of Digests or Pandects and four Books of Institutions were made in which were expounded whatever before-time was used and what by disuse was obscured by the Imperial Remedy was Illuminated and he had accomodated to them his fullest Authority and had appointed them to be read and taught at Rome Berytus and Constantinople and no where else Yet the body of the Civil Law was so neglected that till Lothar the Second about the year 1125. took Amalsi and there found an old Copy of the Pandects or Digests it was in a manner wholly disused Under that Lothar the Civil Law began to be profest at Bologna and one Irner or Werner made the first Glosses upon it about the beginning of Frederick Barbarossas's time in Anno 1150. and Bologna was by Lothar constituted to be Legum Juris Schola una sola (h) Sigon de Regno Italiae lib. 11. 7. This Book Lothar gave to the Pisans by reason whereof saith Mr. Selden it is called Litera Pisana and from thence it is now removed to Florence where in the Dukes Palace it is never brought forth but with Torch-light and other Reverence By this account we may note That even before Justinian's time some Laws had been rather by old Traditions which he calls old Fables than by certain Authority received others were by long disuse forgot and after they were thus established by Imperial Authority yet the succeeding Barbarity of the Ages and the new Kingdoms erected caused other Laws to obtain Force the first of which we find very rude All the first Laws we read of in any Nation seem either so comparatively to the refinedness of the Laws in these Ages or else the Digesters and Authorizers of them complain how obscure rude or indigested those were out of which they extracted theirs The great Subversion the Saxons made by their Conquest The Saxons made so great and universal a Subversion in the State that scarce any City Dwelling River Hill or Mountain retained its former Roman or British name so that we have less reason to expect any satisfactory account either of British History Polity or Laws when we only know where they had Camps Stations or Cities Palaces or Fortifications or Temples by the Coyns Brick tessellated Pavements Glass Earthen or Jett Fragments of Cups and other Houshold-stuff or Urns and Sacrificing Dishes which by chance have been found in the Rubbish of many Towns that have been certainly fired and totally demolished which sufficiently disâ—â—ver the noble Structures and rich Furniture the Romens and Britans had before the Saxon Invasions Besides which we may consider not only the continual Wars and Depredations the Saxons made one upon another but that the Daves like a fatal Hurricane or Whirlwind tore up Root and Branch every where overturning ransacking burning and destroying all that they could not peaceably possess Having thus far treated of the State of the Britans and something of the Laws in general A short Glossary of the Names or Titles of the Constituent Parts of Great Councils as a Praeliminary to the better understanding who are meant by the Persons who we find do constitute the great Councils I shall out of Sir Henry Spelman Somner and Doctor Brady give a very short Glossary referring the curious Reader to the Books themselves The most common Words in the Saxon Laws that are used besides the Bishops The Witan or Wites Einhard divides the Germans into four sorts of Degrees the Noble Free-men those made free and Servants his words are Quatuor differentiis gens illa consistiâ— Nobilium sâ—iliâ—et Liberorum Libertorum atque Servorum Adam Brem Hâ—â—t Eccles c. 5. to express the Persons
properly as Somner renders it with the Advice Counsel Instruction or Exhortation as our modern word Lore imports of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with all my Aldermen i. e. Princes Dukes Earls Viceroys Military Officers Senators or Ministers of State as the word then signified those old Wites i. e. principal or chief Noble Men Chieftains Governours or Wisemen of my Kingdom do command and likewise with mycelre somnug Godes Theowena The great Assembly Congregation or Synagogue of Gods Servants i.e. the Clergy (f) Waes 〈◊〉 thaere hae le 〈…〉 be thâ—m stâ—â—hâ—le ures rices meditating or studying the Health of our Souls and upon the Estate or establishing of our Kingdom That ryht AE (g) Not Aew Nuptiâ—e 〈…〉 observes and appears in the 〈…〉 Gefasâ—inedâ— and ryhte cynedomas thurh ure Folc Gefaestenode getrymmed waeron That right Laws and right or just Judgment or Dooms of the King or Office and Dignity of Magistrates and Somner be fastned or established and trimmed perfected or accomplished That no Alderman or under our Jurisdiction or as probably the Compound word may be rendred any Prince under us Theoden signifying a Lord Prince or Ruler or as in the Saxon Chronology a King after them shall turn from break corrupt or change Awendan these ure domas these our Decrees Sentences or Ordinances Then in the First Chapter it follows We beodaeth that ealles Folces AE domas thus synd gehealden We bid or command that all our People shall after hold fast or observe these Laws and Dooms From this Preface the candid Reader may observe First Observations on this Preface That Kings are the gift of God and that Godes Gyffe signifies the same with Dei Gratia they are not the Creature of the People Secondly That Princes for the better Government of their People in the setling of Laws in Church and State consult deliberate and advise with their Bishops Noblemen and eminently Wise men of their Kingdoms whom for their Wisdom they honour with public Imployments in their Dominions Thirdly That after such Consultation Deliberation and Advice the Sovereign establishethâ— and instituteth the Laws And Lastly That such Laws are not to be broken or infringed by the Judges or supremest Officers under the King much less by the Subjects The next (h) Spelman Câ—ncil vol. 1. p. 313. Other Great Councils in the Saxon times of Offa. Council I find is that of Colchyth in the Kingdom of Mercia Anno 793. wherein are said to be Nine Kings present viz. Offa and Egferd his Son and seven more numbred by Sir Henry Spelman Fifteen Bishops and Twenty Dukes and so in another at (i) Id. p. 314. Verulam it is said to be under Offa who called together his Bishops and Optimates but these are only about Religious matters So (k) Id. p. 3â—0 Ad Aâ—â—um 8â—â— Kenulph Kenulph King of Mercia writing to Pope Leo the III. begins Kenulphus Gratia Dei Rex Merciorum cum Episcopis Ducibus omni sub nostra ditione dignitatis gradu So at the Synod at (l) Idem fâ—â— 328. Colichyth 6 Kal. Aug. Ann. Dom. 8â—6 Wulfred the Archbishop being Praesident it is expressed that Caenulf the King of the Mercians was present cum suis Principibus Ducibus Optimatibus So we find a Synodal Council at Clovesho (m) Iâ—em fol. â—32 〈…〉 rum praesidente Beornâ—lpho Rege Merciorum and Wulfrid the Archbishop the other Bishops Abbats and the Nobility of all Dignities treating concerning the profit of Ecclesiastical and Secular Persons and the stability of the Kingdom That which I shall note from these is this That in these Synodal Councils sometimes it is said the King praesided other times the Archbishop but mostly all the Persons that constitute such Councils are the King the Archbishops Bishops Abbats Priors and the Optimates The next Council I find is called (n) Idem pag. 336. Anno 833. Withlasius Concilium Pananglicum held at London 26 May Anno 833. wherein Withlasius King of the Mercians gives several immunities to the Abby of Croyland and more than once he saith volo praecipio and this he saith he doth in the (o) In praesentia Dominorum meorum Egberti Regis West-Saxoniae Aethelwulphi filii ejus coram Pontificibus Proceribus presence of his Lords Egbert King of the West Saxons and Aethelwulph his Son and before the Bishops and the greater Noblemen of all England in the City of (p) Majoribus totius Angliae in Civitate Londonia ubi omnes congregati sumus pro consilio capiendo contra Danicos Piratas litora Angliae assidus infestaâ—tes London where they were all gathered to take Counsel against the Danish Pirates daily infesting the Coast of England Therefore Sir Henry Spelman judgeth this Council properly to be called for secular Affairs and to be such as we now call our Parliaments The Witnesses to it are the said Withlase the Archbishop of Canterbury Celnoth and Eadbald Archbishop of York and after nine more Bishops and three Abbats Egbert and his Son Adelwulph sign and after them Wulhard Athelm and Herenbrith Dukes Swithin the Kings Presbyter and Bosa his Secretary But I shall leave these and come to more direct secular great Councils The Laws of King Alfred Regnare coepit 871. desiit 900. as that of King Alfred who in the first part of his Laws recites the Commandments and Laws by Gods appointment delivered by Moses to the Children of Israel to be observed and some of the New Testament and from that of our Saviour quod vobis fieri non velitis id aliis non faciatis concludes that Jâ—Plgment of Right ought to be given to every one and that on (q) On thissum anum Dome mon maege gethencean that he aeghwelâ—re on riht gedemeth LL. Alured p. 21. this one Sentence That Man must bethink him much that judgeth Right to every one and he adds That after the propagating of the Gospel in England as well as in other places were gathered for making of Laws both for Church and State it is to be supposed he means Holy (r) Haligra Bisceopa eac othera gethungenra Witena Ibid. Bishops and other famous wise Men or Wites Then in the Conclusion of the Laws about Religion and Prefatory to the secular Laws he saith I Alfred King have gathered (s) Thaes togaeder gegaderod awritan het these Sanctions together and caused them to be written many of them being observed by his Ancestors Those that he liked (t) Tha the me ne licodon Ic awearp mid minra witena getheat on othre wifan behead to heoldanne Ib. p. 22. not with the Council of his Wites he rejected and those he liked he bid or commanded to be holden and concludes Ic tha Aelfred West-Seaxna Cyning eallum minum Witun thaes geeowde hi tha cwaethon that him that licode eallum to healdenne which thus I
render I Aelfred King of the West-Saxons showed these to all my Wites i.e. Nobility or wise Men and they said they liked them to be holden In this we may observe That the King speaks in the single Person Observations on these Laws that he collected chose and rejected and as in the same place he adds since it would be rashness to appoint all his own Laws it being uncertain what credit those might find with Posterity which he liked Therefore whatever in the Laws of Ines his Maeges i.e. Kinsman or of Offa King of the Mercians or of Aethelbyrhtes who was the (u) The aerest fulwilâ—â— underfeng on Angel cynne Ibid. first King of the English that was baptised Those that he (w) Tha the me rihtost thuhton Ic tha her on gegaderod thought righteous he those here gathered and the other he rejected passed by or pretermitted forlaete It may be also noted That he calls the Noblemen whose Advice and Assent he used his Wites minum Witum The next material Illustration of the Constituent Parts of the Legislative Power is found in the (x) Idem p. 36. League betwixt Alfrid and Guthrun King of the Danes which though not properly a great Council yet at least much resembled it since it saith This is the League of Peace which Aelfred and Guthrun Kings and all the English Wites and also those which inhabited East England have declared or (y) Geâ—weden habbath mid Athum gefaestnod p. 36. established and with Oath fastned or confirmed For hi sylfe for heora gingran for themselves and for their Off-spring ge for geborene ge for ungeborene born and unborn that care saith he for Gods Mercy or ours The Godes miltse recce oth-the ure In this it is to be noted Observations on this League That Alfred having so beat the Danes that they gave him Hostages either to go out of the Kingdom (z) Jo. Piâ—us qui vixit temp H. 1. or turn Christian This Guthrun otherwise Gurmund with Thirty of his Nobles and almost all of his People were baptized and Alfred received him at the Font as his Son and called him Ethelstan Also the Subjects of Guthrun are called the East-English Nation and the Nobility are called the Wites of the English King Angel cynnes witan And Lastly that the Oath or firm Contract was Obligatory to the present Age and to Posterity if they expected the Mercy or Compassion of God or the King by which we may judge what value they had then for an Oath so that this might be in the nature of a great Council of the King and the Wites convened for the surer Stability of this Peace to take the Oath In the Laws of King Edward the Elder The Laws of Edward the Elder Regn. coepit 900. desiit 924. after the Charge given to the Judges the first Law begins Ic wille I will and so in others in the fourth it is thus expressed That Eadweard the King with his Wites (a) Myd his witan tha hi Eaxanceastre waron Id. p. 39. that were at Exeter strictly enquiring by what means it might be better provided for Peace and Tranquillity which he perceived was less studiously preserved than it ought to be or it should which he had before commanded That no Man (b) That he aer beboden haefde That nan mon othrum rihtes ne wyrne as Lambard translates it ne quent injuria affiâ—iant deny stop or hinder others Rights In the Second and Third Chapter it is eac we cwaedon also we declare pronounce or sentence and in the Seventh Eac ic wille and I will In which Laws we have none mentioned with the King but his Wites and his commanding willing or pronouncing in the Imperative Mood is observeable The next Laws I find are those of King Athelstan The Laws of King Athelstan Regn. coepit 922. desiit 940. Ibid. p. 45. which begin thus Ic Aethelstane cyning mid getheahte Wulshelmes mines Hihbisceopes othra mina bisceopa bebeode eallum minum Gereafum thurh ealle mine rice I Athelstan King with the advice of Wulfelm my High-Bishop and other my Bishops command or bid all my Rieves i. e. Praefects of what degrees soever to pay Tithes c. And this he commands (c) Et that â—â—e gâ—do eaâ— tha Bisâ—eop is â—ecra gewhylera eac mine Ealdormanna Gereafa Ibid. p. 45. his Bishops his Aldermen and Praepositi who were the Judges in the County-Courts to do the same Although in this Preface there be no mention that he used any advice but of the Bishops yet the Conclusion of Twenty six Chapters of Laws is in these words Ealle this waer gesetted on tham miclan Synoth aet Greatanleage on tham waer se Aercebisceop Wulfhelme mid eallum thaem Aethelum mannum Wiotan de Ethelstan Cyning gegadrian Which I render thus into English All these were setled or done in the great Synod or Council at Greatanlea in which was the Archbishop Wulfhelm with all the Noblemen Somner Verb. Ethelum mannum must properly signify those of the highest Quality such as were Princes of the Blood and Dukes because it is distinct from VViotan or the Wites by which usually Earls and those of lower Nobility and great Officers were understood which Athelstan the King gathered In these Laws We cwaedon is used which I suppose is something more than Somner understands by his Cuide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the Twenty sixth Chapter wherein it is expressed (d) Gif minra Gerefena gehwylce this don nylle c. Gylde min oferhyrnysse Ic finde otherne we wille se Bisceope amanige tha offer oferhyrnyss aet tham Gerefan the on his folgothe sy P. 53. That if any of his Graeves do not perform these Commands or be more remiss in the Execution of those he hath enjoined he shall be punished for his excess of Contumacy and the Bishop shall punish the Contumacy of the Graeve or Praepositus and his Sequel the Punishment for the first fault shall be five Pounds and the other fault his were that is the value of his Head and the third the loss of all his Goods and the King's Friendship ura ealra Freondscipes King Edmund was the next of our Kings King Edward's Laws p. 57. Regn. coepit 940. desiit 948. whose Laws are transmitted to us and they begin thus Eadmund cyning gesommnade mycelne synoth to Lundenbyrig on tha Halgan Easterlicon tid Edmund the King assembled a great Synod or Council to London on the Holy Eastertide and the persons summoned are stiled aegther ge Godcundra hada ge worulcundra both Gods-kind and World-kind i. e. Clergy and Laicks After Six Chapters of Laws the King signifies to all old and young That he had (e) That Ic â—meade mid minra Witena getheaht gegodra hada gelaewedra Id. p. 58. considered with his Wites Consultation being
had with Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon these we pronounce or appoint and sometimes the single person is used and in other places us betweonan heoldan it is holden betwixt us Here we find the Great Council summoned by the King and the constituent parts of it to be the Clergy and Laity and that the Laity were only the Princes Dukes Earls great Officers Military Commanders the Kings Ministers Graeves Praepositi Thanes sometimes denoted by the general names of Wites translated Sapientes Magnates Optimates c. as is every where beyond all possible doubt cleared by the most Judicious Dr. Brady in his Answer to Mr. Petyt to whose great collection for the proof of this point before I proceed further I shall only in transitu instance in a few The Title of the Council of Berghamsted (f) Spelman Concil vol. 1. fol. 194. Anno 697. Withrad 5 of Withred King of Kent is This Synd Wightraedes domas Cantuara Cyninges Saxon Great Councils These are the Judgments of Withred King of Kent and the persons mentioned particularly are the King that convened them and Birthwald Bretone Heahbisceop High or Archbishop of Britain Gibmund Bishop of Rochester and the rest of the Ecclesiastick (g) Aelc had ciricean thaere maegthe acmodlice Order of that Nation mid thy Hersuman Folcy with the Military Persons such as in after times were called Here-Thegni in King Ina's Laws and Heretoches in the Auctuary (h) Lamb. tit Heretoch fol. 147. to the 35 Laws of King Edward the Confessor which are there interpreted Barones Nobiles Insignes Sapientes Ductores Excercitus So in the Council at Clovesho 3. Cal. Nov. Anno Dom. 824. under (i) Spelm. Conc. vol. 1. fol. 333. Beornwulph Beornwulph King of the Mercians besides the Archbishop VVulfred and several Bishops and Abbats are enumerated only Beornoth Eadberht Sigered Egberht Eadwulf Alheard Mucel Vhtred and Ludica under the stile of Duces Bynna Frater Regis Aldred Thelonius So in the Great Council at London (k) Idem fol. 336. Egbert 26 May Anno 833. the Title is Presidentibus Egberto Rege West-Saxoniae Withlasio Rege Merciorum utroque Archiepiscopo caeterisque Angliae Episcopis Magnatibus and besides the Bishops and Abbats that subscribe we find these Adelwulphus filius Regis West-Saxoniae Wulhardus Dux Athelmus Dux Herenbrithus Dux So in the Council at Kingsburie Anno 851. Bertulph Idem fol. 344. under Bertulph King of the Mercians it is said to be praesentibus Ceolnotho Dorobernensi Archiepiscopo caeterisque Regni Merciae Episcopis Magnatibus and the Subscribers are besides the Bishops and Abbats Ernulphus Dux Osrithus Dux Serlo Comes Elbertus Comes Huda Comes Oflat Pincerna Regis I have upon this occasion instanced in these few of the Ancientest to clear who the Persons were according to their Orders Ranks and Degrees that constituted these Great Councils and shall now proceed to other Saxon Councils succeeding Eldred King of all England gave the Monastery (l) Ingulphi Hist fol. 477. King Eldred's Great Council of Croyland to Abbat Turketul and his Monks by his Charter dated in Festo Nativitatis B. M. Virginis Anno Dom. 948. cum universi Magnates Regni per Regium edictum summoniti when all the great Men of the Kingdom were summoned by the Kings command and then more particularly he divides them into the two Orders of Ecclesiasticks and Laicks thus Tam Archiepescopi Episcopi Abbates quam caeteri totius Regni Proceres Optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni Some may object That Ingulphus giving this account may rather express the Members and the occasion of it to treat of the Publick Affairs of the whole Kingdom according to the usage of the Age he lived in than of the Age the Great Council was held in which is well to be observed in many cases But in the Laws of King Edgar I shall shew it was then used in such manner to give account of the great Councils as both his Laws and those I have hitherto mentioned of the oldest Date manifest The Preface to King Edgar's Laws is thus This is seo geraednysse the Eadgar Cyng mid his Witena getheahte geraed King Edgar's Laws Lamb. Conc. fol. 62. Regn. coepit 959. desiit 975. This is the Constitution Act or Decree which King Edgar with his Wisemen or Great-men hath made ready trimmed or enacted Then follow the three great Ends for which such Councils are called viz. God to lofe to the Love Glory or Praise of God in appointing Religious Laws him Sylfum to Cynescipe rendred by Lambard ad Regiae Majestatis ornamentum or according to the significancy of the Words himself to make Kingly or his own Kingship or Soveraignty to manifest and thirdly eallum his leodscip to thearf all his People or Nation to profit or according to Lambard ad totius Reipublicae utilitatem The same King Edgar (m) Spelmanâ— Concil Tom. 1. fol. 4â—5 in his Charter to Glastonbury concludes it thus Hanc privilegii paginam Rex Edgarus XII Regni sui Sacro Scripto apud Londoniam communi Concilio Optimatum suorum confirmavit So that it appears this was in the presence of a great Council and the Witnesses named are Elfgina Regis mater Edward Clito filius Kinedius Rex Albaniae Mareusius Archiparata Admiral Then follow both the Archbishops and several Bishops and Abbats after whom the secular Optimates viz. Elpher Oslac Ethelwine by the Title of Duces Oswold Eufward Ethelsic Ellshie by the Title of Ministri which were Officers under the King as Thegns praepositi In the account given of a Council held at (n) Idem 490. Winchester in this Kings Reign those present at it are reckoned thus Praesentibus Edgaro Rege cum Conjuge Dunstano Archiepiscopo Elfero Principe Merciorum Ethelwino Duce Orientalium Anglorum and the same persons called Duces in the foregoing Charter Elfwoldo suo Germano Brithnotho Comiti cum Nobilitate totius Regni So that none but the Nobility were present The Witnesses to a Charter of the same King to the Monastery of Hyde in Winchester are the King Archbishop Dunstan Eadmund Clito legitimus praefati Regis filius Edward eodem Rege Clito procreatus Aelftheyth Regina Eadgita Regis avia the present Queen hath the precedence of the Queen Dowager Then follow several Bishops and Abbats after whom the Lay-Peers viz. Odgar Athelstan Athelwin Dukes Aethelweard Aelfweard and Walston Ministri It is to be noted That most do make the Laws of King Edward the Confesson to be principally a revival of King Edgar's Laws mixing such as Canutus had adjoyned to them The Preamble to the Laws of King Ethelred runs thus The Laws of Ethelred fol. 88. Regn. coepit A. 979. desiit 1016. This is tha geraednyss the Ethelred Cyning his Witan geraeddon eallum Folc to fritherbote These are the Constitutions King
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
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
acquired a Soccage Tenure and Fee-simple Estate Therefore the foresaid (q) Praefat. Reger Twysden fol. 155. The English possess their Lands by â—avour not otherwise Hereditarily So Mut. Paris saith Commilitonibus terras Anglorum possessiones affluentiori manu contulit illud parvum quod remansâ—rat sub jugo posuit perpetuae servitutis Gervase of Tilbury concludes this Observation thus Sic igitur quisquis de gente subacta fundos vel aliquid hujusmodi possidet non quod ratione successionis debere sibi videatur adeptus est sed quod solummodo meritis suis exigentibus vel aliqua pactione interveniente obtinuit viz. So every one of the conquered Nation possest their Lands or any thing else not that he should seem to get it by way of Succession but by his deserts or by some Compact or Covenant made with his Lord as it must be understood The most industrious Doctor Brady having on purpose writ so much of this Argument in his Answer to the Argumentum Anti-Normanicum and out of so many Historians confirmed it in the Answer to the Appendix Brady p. 313.314 I must refer the Reader that desires satisfaction to his Book being loth to crowd those matters which are not directly to my purpose Only I cannot but note that the reason why we so often find the same Lands that have been granted by a Father for him and his Heirs required and had a Confirmation by the Son was because the Tenure was so fickle for want of Homage or Omission of Service whereby they might be forfeited I now proceed to the great Councils that I have found in the Reign of William the Conquerour and shall begin with that wherein the Laws I have spoken before of out of Hoveden were made which are agreed by all to be in the Fourth year of his Reign In general we find Gervase of Tilbury telling us The Conqueror makes written Laws That when the famous Subduer of England King William had subjected to his Empire the utmost parts of the Island and by terrible examples had brought to perfect obedience the Minds of Rebels that they might not have liberty to fall into the same errors for the future he (r) Decrevit subjectum sibi populum Juri scripto legibusque sabjicere Quasdam reprobavit quasdam autem approbans Transmariâ—â—s Neustriae leges quae ad Regni pâ—â—â—m tuendam efficâ—teissionae videbantur adjecit Gerv. Tilb. lib. 1. c. 29. resolved to govern the People subjected to him by written Right and Law therefore the English Law being propounded according to their threefold distinction that is the Mercian Law Dane Law and West-Saxon Law he rejected some and approved others and added such Transmarine Norman Laws as seemed most efficacious to defend the Peace of the Kingdom In this account we may observe That the King solely is said to reject and approve and to add such of the Norman Laws as he thought fit for securing the Peace of the Kingdom and the Ingenious Dr. Brady thinks the 52 55 56 58 59 62 63 64. are those Norman Laws intimated Concerning the Oath which Frederick Abbat of St. Albans administred to the King on the Holy Gospel and the Reliques of the Church of St. Albans whereby he swore That for the good of Peace he would observe the good and approved ancient Laws of the Kingdom which the pious Kings of England and especially King Edward had inviolably observed I must refer the Reader to (s) Fol. 48. num 20 30 40. Matthew Paris to understand the occasion of it and Dr. (t) Argum. Antinorm p. 261. Brady's Exposition or Commentary upon it and how little he observed it What the Laws were that King William the First confirmed Authors agree not about as may be seen by comparing (u) Fol. 343. Hoveden (w) Fol. 138 149 Knighton Collect. 2354. N. 61. Lambard of Wheelocks Edition and Spelman in the First Tome of his Councils Fol. 624. Selden (x) In Eadmerum fol. 172. num 20. in his Notes upon Eadmerus writes very suspiciously of all the Laws that are attributed to King Edward except the Crowland Copy judging neither Hoveden Knighton or the Author of the Lichfield Chronicle well versed in Law matters and who writ long after Ingulphus of whom he gives this Character Qui in hac re testium non tam facile Princeps merito dicendus est quam solus forsan cui ut par fit credamus The Title of the Laws properly ascribed to William the Conquerour The Title of the Conqueror's Laws are in the Latin thus (y) Ces sont le Leis les Custumes que le Reis William grantut tut le peuple de Engleterre â—pres le Conquest de la Terre Ice les meismes que le Reis Edward sun Câ—sin tent devant luy LL. W. fol. 159. Hae sunt leges consuetudines quas Will. Rex concessit universo Populo Angliae post subactam terram Eaedem sunt quas Edwardus Rex cognatus ejus observavit ante eum In English thus These are the Laws and Customs (z) LL. W. 1. p. 170. which William the King granted to all his People of England after the subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expresly said to be the Kings Grant and the Supplemental Laws after the 50th which were found in the Croyland Copy being writ in the Red Book of (z) LL. W. 1. p. 170. the Exchequer are by way of Charter or Grant thus Will. Rex Anglorum c. omnibus hominibus suis Francis Anglis salutem and all along the Authoritative parts expressed by statuimus volumus interdicimus prohibemus praecipimus decretum est The Terms used by the Conqueror in Law-giving The expressions Authors use concerning his Laws whereby the absolute Soveraignty of the Conquerour in the point of Law-giving is manifested are to be found in all those who have writ of his Life I shall content my self with a few Ordericus (a) Fol. 853. Vitalis saith eamque i. e. England Gulielmus Rex suis Legibus commode subegit that he subdued or rather subjected England profitably to his Laws Eadmer (b) Hist Nov. fol. 6. num 10 20 30. Vsus atque leges quas patres sui ipse in Normannia solehant in Anglia scribâ—re volens Cuncta divina simul humana ejus nutum expectabant Edit Gal. de Moulins saith That King William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy c. all Divine and Humane Things he ordered at his pleasure The Chronology of Rouen saith Leges quas in hunc diem Angli observant idiomate Normanico promulgavit The Laws which at this day the English observe he published in the Norman Language Mr. Camden saith (c) Britan. fol. 109. That
William the Conquerour as a token of his Victory laid aside the greatest part of the English Laws and brought in the customs of Normandy and commanded Pleadings to be in French Jo. Brompton Abbat of Jorval gives us an account of the proper Laws of William the Conquerour Brompton's Account of the proper Laws of the Conqueror which he recites under four Heads and they are only concerning Pleas de examine Forensi and Mr. Selden gives this Character of him that he was Diligentissimus rerum nostrarum maxime autem Legum vetustiorum Indagator These are by way of Mandate thus W. Dei gratia Rex Anglorum omnibus ad quos scriptum hoc perveniat salutem Mando Praecipio per totam Anglicam Nationem custodiri As to the constituent Parts of the Great Councils in the Conquerour's time in many of them we have many Bishops names The Members of the Great Councils in the Conqueror's time and no others not so much as the Principes Primates or Magnates in general Anno 1071. 5 W. 1. the Plaint of (d) Rad. de Diceto col 483. num 30. Concil tom 2. fol. 4. Wulstan Bishop of VVorcester is said to be ended in Concilio celebrato in loco qui vocatur Pedreda coram Rege Doroberniae Archiepiscopo Primatibus totius Regni before the King the Archbishop of Canterbury and the Nobility or Prime Persons of the whole Kingdom The Election of (e) Gervas Dorobern col 1653. lin 5. Lanfranc Archbishop of Canterbury about this time or the year before is said to be thus the Seniors of the said Church electing him cum Episcopis ac Principibus Clero Populo Angliae in Curia Regis in Assumptione Sanctae Mariae Here the Episcopi Principes Bishops and Princes the Cleri Populus the Clergy and People or Laity were the same persons and only expressive of one another In the Charter (f) MS. in Bibl. Cotton sub essigie Vespas A. 19. e Chron. Rad. de Diceto Spelm. Concil Tom. 2. fol. 14. of William the Conqueror Anno 1077. 11 Regni after the Names of several Archbishops Bishops Earls and other Seniors Robert de Oyley Hamo dapifer signed it many illustrious Persons and Princes of divers Orders saith the Author being omitted Then is added His etiam illo tempore a Regia potestate è diversis Provinciis Vrbibus to this Universal Synod at Westminster were called In this the (g) Fol. 651. lin 22. Principes diversi Ordinis were the great dignified Clergy and the Temporal Nobility which is explained by Florence of Worcester speaking of such a like Convention 3 H. 1. Rex fuit apud Westmonasterium eo omnes Principes Regni Ecclesiastici secularis Ordinis and (h) Fol. 67. B. 20. Anno 1102. 3 H. 1. Eadmer of this very great Council 3 H. 1. says Primates Regni utriusque Ordinis huic conventui affuerunt that is The Princes or great Men of the Clergy and Laity which were no other but the Archbishops Bishops Abbats and Priors of the one Order and the Dukes Earls Barons and greater Tenents in Capite of the other and for the expression è diversis Provinciis Vrbibus (i) Fol. 302. Doctor Brady hath sufficiently explained it in his Answer to the Argumentum Anti-Normanicum In a Charter of this King for changing the (k) Monast vol. 1. fol. 44. Anno 1084. 18 W. Conqu Canons of Duresm into Monks it is said Haec Charta confirmata est apud Westmonasterium in Concilio meo Anno Regni 18. praesentibus omnibus Episcopis Baronibus meis In the Charter of the same (l) Spelm. Concil tom 2. fol. 14. e MS. penes Dec. Capit. B. Pauli Lond. A. fol. 1 2. King about separating of Ecclesiastic Pleas from Civil it is thus expressed William by the Grace of God King of England to R. Bainard G. de Magnavilla and P. de Valoines and all his Fideles of Essex Hereford-shire and Middlesex Know they and all other his Fideles which remain in England that he hath (m) Leges quae non bene c. Communt Concilio Concilio Arâ—â—iepisct porum Epi coporum Abbatum omnium Principum Râ—gni mei emendand is judiâ—avi propterea mando Regia Auâ—loritate â—racipio c. thought fit with his Common Council and the Council of Archbishops Bishops and Abbats and of all the Princes of his Kingdom to amend the Episcopal Laws which were neither well nor according to the command of the Holy Canons before his time observed in his Kingdom Therefore he saith he commands and by his Royal Authority enjoyns that no Bishop or Arch-deacon hold their Pleas any longer in the Hundred From all which we may observe Remarks upon what before is laid down First That the Conqueror introduced the Feudal Laws of the Normans and according to them disposed of the Lands of the conquered Saxons to be held of his Norman Followers and that he brought in several others of the Laws and Customs of his Country Secondly That he difficultly granted to his People the Laws of King Edward and those he amended at his pleasure and all that he either confirmed or established he did by his Royal Prerogative using the single Person in the Sanction of them and the Imperative in the commanding or forbiding and those Laws which properly may be called his own were by way of Charter or Mandate and in the Councils purely Ecclesiastical the King summoned them as is apparent in (n) Annal. Binaiae tom 3. part 2. fol. 249. Hoveden where he saith eodem Anno i. e. 10703 Regni Concilium magnum in Octavis Paschae Wintoniae celebratum est jubente praesente Rege W. c. of which more below The great Selden notes as the Members of the Great Council in the time of the Norman Kings for the Barons such as had 13 Knights Fees and a third part His words are Interfuere Parliamentis sub Normannorum tempora quotquot 13 Feudis Militaribus 3 unius parte investiti Barones ab amplis praediis ita dicti Jan. Ang. p. 139. Thirdly There are no Members of these great Councils mentioned but the Archbishops Bishops and Abbats for the Clergy and the Optimates and Principes for the Laity Fourthly That though the sole Power of enacting Laws was in himself yet he used the Advice of his Common Council of his Kingdom as is expressed in the 55th Law thus Prout statutum est eis illis a nobis datum concessum jure haereditario in perpetuum per Commune Concilium totius Regni nostri praedicti which Commune Concilium consisted of the Bishops Abbats Earls Barons and principal Tenents in Capite as is every where clear no Commons having Vote or otherwise represented Lastly (o) Hist Novel p. 6. num 30. Non sinebat quicquam statuere ant prohibere nisi quae suae voluntati accommoda
diversorum negotiorum causae in medium duci ex more coeperunt Id. p. 37. num 40. Ann. 1096. vel 1097. Therefore the Festival-days being passed the causes of divers affairs according to custom began to be transacted saith my Author among which that that of Anselm's was one But to draw to a Conclusion of this King's Reign my Author clears who were the Members of the Great Councils and that they were convened at the King's Pleasure in the relating that in the following (k) Mense Augusto cum de statu Regni acturus Rex Episcopos Abbates quosque Regni Proceres in unum praecepti sui sanctione egisset c. Id. p. 38. num 10. Month of August when the King being to transact things concerning the State of the Kingdom by his Summons had convened the Bishops Abbats and all the Noblemen of his Kingdom The affairs for which they were assembled being dispatched and every one prepared to return home Anselm moves again his Petition and in October when the Convention was dissolved he applied himself again to the King at Winchester Here we may observe that it was the King The King solely summons the Great Councils and dismisseth them who being to transact things about the State of the Kingdom by the Authority of his Precept or Summons called together the Members of the Great Council who are expresly mentioned to be the Bishops Abbats and all the Noblemen of the Kingdom Since therefore we find no other kinds of Great Councils in any Authors that write of this King we may conclude the Commons were no ways represented in any of them Most Authors mention this King with no good Character One old Writer saith Omnis jam legum silâ—it Justitia causisque sub justitio positis sola in Principibus imperabat pecunia Florent Wigorn. That all Justice of Laws was in his time hushed in silence and Causes being put in a Vacation without hearing Money alone bore sway among the great ones Polydore Virgil will have the right or duty of First-fruits called Annats which our Kings claimed for vacant Abbies and Bishopricks to have had their Original from King William Rufus However that be it is certainly true that at his Death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries besides being without Prelates and Abbats payed in their Revenues to the Exchequer We may judge likewise of his burthensome Exactions Matt. Paris fol. 74. Edit penult by what we find in his Brother King Henry the First 's Charter Wherein he saith because the Kingdom was oppressed with unjust Exactions he makes the Holy Church free and all evil Customs wherewith the Kingdom of England was unjustly oppressed he doth henceforth take away and they are all in a manner mitigations of the Severity of the feudal Tenor as any one may see in Matthew Paris Mr. Selden and Dr. Brady and is plain by the very first concerning the Laity That if any one of my Barons Counts or others that hold of me shall dye his Heirs shall not redeem his Lands as he was wont to do in the time of my Father c. And in another Praecipio ut homines mei similiter se contineant erga silios silias uxores hominum suorum That according to the relaxation he had made to his Homagers they should regulate themselves towards the Sons Daughters and Wives of their Homagers Of the Great Councils in King Henry the First 's time COncerning the Great Councils in King Henry the First 's time as also till Edward the First 's time I must refer the inquisitive Reader to Dr. Brady's answer to Mr. Petyt in the respective Kings Reigns and to his Appendix in which he hath amassed out of Eadmerus Simeon Dunelmensis Florentius Wigornensis Hoveden Gervasius Dorobernensis Matt. Paris Malmsbury and other Authentick Writers the Emphatical Expressions by which the constituent Parts of the Great Councils are fully proved to be only the Bishops Abbats and Priors for the Clergy or the great Nobility or prime Tenents in Capite such as the King pleased to summon under the names of Magnates Comites Proceres Principes Optimates Barones or Sapientiores Regni expresly used for Barones Where the Populus is used by way of Antithesis as contradistinct from the Clerus and where Regni Communitas or Ingenuitas is used the same Doctor Brady by pregnant Proof puts it beyond dispute that none of the Commons as now we understand them could be meant as Representatives So that though I had collected a considerable number of such Proofs e're I saw the Learned Doctor 's Book I shall now wave them all and only add in every King's Reign some few that he hath omitted or wherein something remarkable relating to the King's Soveraignty or the manner of constituting Laws is found by him noted or as I have met with them in my Reading In the third of Henry the First in the Feast of St. (a) Omnes Principâ—s Regni sui Ecclesiastici Secularis Ordinis Flor. Wigorn. Anno 1102. 3 H. 1. Michael saith the Monk of Worcester the King was at London and with him all the Princes of his Kingdom of the Ecclesiastick and Secular Order and of the same Council Malmsbury saith The King bidding (b) Ipso Rege annuente communi consensu Episcoporum Abbatum Principum totius Regni adunatum est Conciltum De Gest Pontif. Anno 1102. or willing with the common Consent of the Bishops and Abbats and Princes of the whole Kingdom the Council was united and this being mostly about Ecclesiastick affairs it is added that in this Council the Optimates Regni at the Petition of Anselm were present and gives the reason For that whatever might be decreed by Authority of the Council might be maintained firmly by the mutual care of both orders Whereby we may note the Obligation upon Subjects of both Orders to observe the Laws once enacted by the King and Council Anno 1107. 7 H. 1. Matth. Paris saith (c) Factus est conventus Episcoporum Abbatum pariter Magnatum ad Ann. c. there was a convention of the Bishops and Abbats as likewise of the Magnates i. e. Noblemen at London in the King's Palace Archbishop Anselm being President To which the King assented and speaking of what was established he saith Rex statuit To him Hoveden agrees only what the one calls Magnates the other calls Proceres The Manuscript of Croyland (d) Tum Episcoporum Abbatum totius Cleri Angliae by which must be understood the great dignified Clergy Sub Wifrido Abbate p. 104. saith The same Year the King giving manifold thanks to God for the Victory he had given him over his Brother Robert and other Adversaries appointed a famous Council at London as well of the Bishops and Abbats of the whole Clergy of England as of the Earls Barons Optimatum Procerum totius Regni In this Council
times appointed through England and by his writing and Seal confirmed to Bishops and Abbats Charters of Priviledges whose Charter runs thus Hen. c. Baronibus fidelibus suis Francis Anglis salutem Sciatis me ad Honorem Dei Sanctae Ecclesiae pro communi emendatione Regni mei concessisse reddidisse praesenti Charta mea confirmasse c. and so confirms the Charter of King Henry the First his Grand-father As to the Council of Clarendon about (b) Answer to Petyt fol. 31. ult Edit See Selden's Correction of Matt. Paris in his Epinomis Thomas Becket Archbishop of Canterbury after he had once promised and his after refusing to set to his Seal in Confirmation of the Ancient Laws I must refer the Reader to what Doctor Brady hath collected and shall only touch upon that of (c) Matt. Paris fol. 84. num 20. ult Edit Clarendon Anno 1164. 10 Hen. 2. where those present by the King's Mandate were the Archbishops Bishops Abbats Priors Earls Barons and Noblemen of the Kingdom and there was a Recognition of parts of the Customs and Liberties of King Henry the King's Grandfather and of other Kings which were comprised in sixteen Chapters Concerning the Laws of this King see Selden's Epinomis These Matthew Paris calls wicked Customs and Liberties because they subjected the Clergy-men more to the Crown than he and others would have had them yet he saith the Archbishops Bishops Abbats Priors Clergy with the Earls Barons and Nobility swore to them all Proceres and promised firmly in the word of Truth to hold and observe them to the King and his Heirs in good Faith and without Evil and then adds decrevit etiam Rex by which it appears that the Members of the Great Council did not only assent but did bind themselves by Oath and solemn Promise obligatory to themselves and their Posterity to keep and observe them and upon the whole it is the King that decrees appoints and constitutes In all the great Councils of this King it is manifest that the Members were only such as in former Kings Reigns only in that of the 22 H. 2. (d) Ben. Abb. p. 77. Anno Dom. 1176. it is said Rex congregatis in urbe Londoniarum Archipraesulibus Episcopis Comitibus Sapientioribus Regni sui where Sapientiores are instead of Barones and for the Kings Summons it is always said Rex convocat congregavit praecepit convenire or mandavit as is most expresly said in that great Council Anno 1177. 23 H. 2. (e) Ben. Abbas p. 86. That the King sent Messengers through the whole Isle of England and commanded the Archbishops Bishops Earls and Barons of all England that they should be with him at London the next Sunday after the beginning of Lent Of the Great Councils in King Richard the First 's time THere are few great Councils met withal in his short Reign he being so great a part of it out of the Kingdom The first I find is in (a) Fol. 129. num 16 Matthew Paris Anno 1189. 1 Reg. That in the day following the Exaltation of the Holy Cross at Pipewel Archiepiscoporum Episcoporum aliorum Magnatum suorum fretus Concilio He supplied the Vacances of several Bishops Sees The Second I find is (b) Hoved. fol. 376. a. num 30. when he and the King of France agreed to go to the Holy Land where it is said that his Earls and Barons who took the Crusado in the General Council at London swore c. of which it is that (c) Fol. 155. num 50. Matthew Paris saith That the King of England convocatis Episcopis Regni Proceribus received the Oath from the Messengers of the King of France In the Fifth of King Richard (d) Hoved. fol 418. b. num 20. we have a full Example of the holding a Great Council by Commission for during the Imprisonment of King Richard Adam de Sancto Edmundo Clerk was sent from Earl John the Kings Brother to his Friends in England to defend his Castles against the King and dined with Hubert Archbishop of Canterbury boasting much of the French Kings assisting Earl John After Dinner the Mayor of London seized on him in his Lodgings and upon all his Breves and Mandates who delivered them to the Archbishop This occasioned the Archbishop being the Kings Commissioner to convene a great Council the next day A Great Council called on a Days warning but surely Summons had issued out before or else it is a great Instance that the great Councils might be called of such of the Clergy and Nobility as were nearest at Hand for my Author expresly saith (e) Qui iâ— crastino convocatis coram co Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenuras statim per commune concilium Regni desinitum est quod Comes Johannes dissaisiretur Idem That the Archbishop the next day called before him the Bishops Earls and Barons of the Kingdom and showed to them the Letters of Earl John and the Tenor of them and adds that instantly by the Common Council of the Kingdom it was defined that Earl John should be disseised This Adam saith Hoveden came into England not long before King Richard's release from his Imprisonment The next great (f) Idem 419. â— 30. A Great Council of four Days Council I find was upon the Thirtieth of March summoned to meet the King at Nottingham and at this were present Alienor the Kings Mother Hubert Archbishop of Canterbury Geoffery Archbishop of York and seven Bishops more Earl David brother to the King of Scots Hamelin Earl Warren Ralph Earl of Chester William Earl Ferrers William Earl of Salisbury and Roger Bigot and names no more but saith the same day the King disseized (g) Rex dissaisivit Gerardum de Canvil de Comitatu Linc. Hug. Bardolf de Castro Comitat. Ebor. Gerard de Canvil and others It appears that this Council sat but four days on the second day the King required Judgment against Earl John his Brother on the third day the King (h) Rex constituit sibi dari c. deinde praecepit exigit Concerning the Form of Proceeding in the Pleas of the Crown the Assize of the Forest wherein the Laws made in this King's time are set down see Selden's Epinomis appointed to be given him 2 s. of every Carucate of Land through England and that every one should perform the third part of Military Service according to their respective Knights Fees to pass over Sea with him into Normandy and then exacted of the Cestertian Monks all their Wool of that year for which they compounded and the fourth and last day Complaints were heard against the Archbishop of York and further Prosecution of Gerard de Canvil Hoveden gives an account of the King's Progress till the 11th of the same Month to which time the
great Council was adjourned to meet at Northampton where the King of Scots made his demands of the Counties of Northumberland Cumberland Westmorland and Lancashire Id. Hoved. and my Author saith That the King having taken advice with the Bishops Earls and Barons no orders of Men more are mentioned he gave answer to the King of Scots but it seems he had no mind to part with those Frontier Counties but by Charter in the presence of his Mother Alienor the Archbishop and other Bishops and many others as well Clerks as Laics of either Kingdom he granted the King and his Heirs certain Allowances Safe-Conduct c. when he should come to the King's Court upon Summons The most remarkable things in these Councils to be considered Remarks upon these Great Councils are the quick dispatch of Business in them the small Numbers they consisted of and that there appears no Footstep of any Commoners by Representation and by the Words Rex praecepit constituit c. it shows that the King had solely the Authoritative Power of passing the Consultations into binding Laws even where Mony was to be levied of the Subject and disseisure was to be made which was then practised but by an happy ease to the Subject is since by King Edward the First abrogated for which as we ought all to be thankful so to make use of this great Liberty that we may not abuse it to the damage of the Crown that bestowed the Largess and not so much boast our selves that we are freemen as to remember gratefully whence our Freedom came Of the Great Councils in King John's time THE first great Council that I have met with in King John's time is that held at Oxford (a) Matt. Paris fol. 176. num 30. ult edit Anno Dom. 1204. 6 Regni the Morrow after the Circumcision where as Matthew Paris saith convenerunt ad colloquium Rex Magnates and there were granted to the King two Marks and an half out of every Knights Fee Yet though all the Members are included under the name of Magnates yet my Author (b) Nec etiam Episcopi et Abbates sive Ecclesiasticae personae sine promissione recesserunt Idem saith that neither the Bishops Abbats or Ecclesiastic Persons passed away without a promise of supply I suppose So that I conceive the Clergy undertook for their Order to contribute something apart as it hath been since in use for the Convocation to give a distinct Tax imposed by themselves on the Clergy some evident Footsteps of which usage we find in that Council of (c) Hoveden fol. 282. b. num 10. Praecepit Rex Archiepiscopis Episcopis ut Siâ—illa sua apponeâ—enâ— cum cateri proni essent ad id saeciendum Archiepise Cant. juravit quod nunquam scripto illi apponeret nec leges consirmaret Clarendon wherein Thomas Becket Archbishop of Canterbury was required by the King that he and the Bishops should set to their Seals in Confirmation of the antient Laws the King enjoined to be observed which when the Bishops were willing to do the Archbishop swore he would never do The Members of the Great Council and the absoluteness of King John in imposing Taxes is fully discovered in what Matthew (d) Fol. 180. num 30. Paris writes that Anno 1207. 9 Regni the King kept his Christmass at Winchester the Magnates Regni being present and on the Purification of the Virgin Mary he took through England the Thirteenth of Moveables The King imposeth Taxes and other things both of the Laics and Ecclesiastics all murmuring (e) Cunctis murmurantibus sed contradicere non audentibus A Great Council held in the King's absence but none daring to contradict him Anno 1213. 15 Joh. the King intending an expedition into Normandy left Geofrey Fitz-Peter and the Bishop of Winchester Commissioners in his absence who at St. Albans held a Council with the Archbishop the Bishops and the Magnates Regni where on the part of the King it was firmly (f) Mat. Paris fol. 201. num 30. Ex parte Regis firmiter est praeceptum sicut vitam membra sua diligunt ne a quoquam aliquid violenter extorqueant vel aliâ—ui injuriam irrogare praesumant enjoyned that the Laws of King Henry his Grandfather should be kept by all in his Kingdom and all evil Laws should be totally disannulled and all Sheriffs Foresters and other Ministers of the King under the severest Penalties of Life and Limb should not violently extort any thing from any Person or presume to offer Injury to any In which we may observe the Conventions of great Councils in the Kings absence and that the Laws have force only by the King's Authority as appears by the expressions ex parte Regis firmiter est praeceptum In the same Year the Eighth of the Calends of September Stephen A Convention or Conspiracy against the King Archbishop of Canterbury with the Bishops Abbats Priors Deans and Barons of the Kingdom met at London at St. Pauls in a Conspiracy against King John and as (g) Fol. 201. num 50 60. Matthew Paris saith the Fame was that the Archbishop calling to himself a Club of the Nobles told them secretly that they had heard how he had absolved the King and compelled him to swear that he should destroy evil Laws and should recal the good Laws viz those of King Edward and make them to be observed in his Kingdom and that now there was found a Charter of King Henry the First by which if they would they might recal to the Pristine State their long-lost Liberties which Charter he produced and it was that made to Hugh de Bocland his Justiciary and so they made a Confederacy among themselves and broke up their Assembly We may note Observations on the foregoing Councils that this Convention at London was a Conspiracy yet it had the Face of a great Council as to the constituent Parts of it and no Representatives of the People and they grounded their Confederacy upon the regaining their lost Liberties and had recourse to King Edward's Laws and their Confirmation by King Henry the First So that even such Rebels owned Kings the Fountains Authors and Establishers of their Liberties as well knowing they were born Subjects and whatever was remitted of the absolute Power of Princes was by their own Grants though they might be induced to those Concessions from several causes but whenever threats force or other necessities for supplies or such like extorted these they were very ill kept Anno 1215. 17 Joh. the Barons pressing the King to confirm the Charter of Priviledges the Archbishop with his Associates read over each Chapter But the King understanding the Tenor of them with indignation and scorn said (h) Quare cum istis iniquis exactionibus Barones non postulant Regnum Nunquam tales illis concederet libertates unde ipse efficeretur servus Matt. Paris fol. 213. num
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
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
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâ—em locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and the State and defence of our Kingdom of England and the English Church we have ordained a certain Parliament of ours to be held at our City of c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. you cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors and the names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the parties so elected be present or absent and shall make them to come at the said day and place To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ— so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify without delay to us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our self at Westminster SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâ—w the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
the personal Will and Power of the Sovereign himself standing in his highest Estate Royal. Therefore whoever reads the Authors that writ in defence of the Parliament must consider this Fallacy they frequently used that he do not apply the Authoritative Act of the King with the Consent of the two Houses to the Houses without the King From the Co-operation of the two Houses in preparing Laws (b) Freeholder's Grand Inquest p. 34. the late 〈◊〉 since King Charles the First 's time of the words The King is not one of the Three Estates Be it endâ—ed by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners and the unwariness of some of the Penners of the King's Answers to some of the Papers of the two Houses wherein they stiled the King the third Estate the Commonwealths-Men have taken the advantage to reckon the King but as a third Legislator Therefore I think it necessary to remove this Rub e're I proceed further Although the Author of the Imposture The Modus makes the Parliament to consist of six Parts called the modus tenendi Parliamentum makes six degrees of constituent Members of the Parliament viz. The King first then Secondly the Archbishops Bishops Abbats Priors and other Clerks who held Baronies Thirdly the Proctors of the Clergy Fourthly the Earls Barons and other great Men who held to the value of a County or Barony Fifthly the Knights of Shires Sixthly the Citizens and Burgesses to which he might have added the Barons of the Cinque-Ports yet he saith the King is the Head Beginning and End of the Parliament and so hath no (c) Ita non habet Parem in suo gradu Peer in his degree Yet it plainly appears that these we now call the two Houses were by reason of their distinct Orders most frequently divided into three For in (d) As queux Prelats ou la Clargie par eux mesmes les Countes Barons par eux mesmes Chevalers Gentz de Countez Gentz de la Commune par eux mesmes entreteront Prynne Animadv p. 10. 6 E. 3. at his Parliament at York the Record saith That on the Friday before the Feast of St. Michael the Prelates or the Clergy by themselves the Earls and Barons by themselves the Knights of the Counties and the Commons by themselves treated c. Othertimes we find the Prelates Earls Barons and great Men and the Knights Citizens and Burgesses to have separate Consultations by themselves and to give their several answers to Articles and business propounded to them in Parliament as Mr. Prynne out of the Abridgment of the Records of the Tower hath given us above twenty instances At the making of the Statute of Praemunire 16 R. 2. the Commons pray The Lords Spiritual Lords Temporal and Commons make the Three Estates That the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter and the Lords Spiritual answered by themselves and the Lords Temporal by themselves and the King was Petitioned to make this Examination So in 40 E. 3. the King asking the Houses Whether King John could have subjected the Realm as he did the Prelates by themselves and the Dukes Earls and Barons by themselves gave their Answer Besides we find as at large I have before instanced in the last Chapter the Writs of Summons of the Bishops and Clergy were only in side dilectione and the Barons generally (e) Stat. 18. â— 6. c. 1. in fide homagio or Ligeancia and the Clergy granted their Subsidies apart and distinct from the Nobles Besides that the Bishops are to be esteemed the Third Estate is clear by Act of Parliament for it being questioned (f) 8 Eliz. c. 1. whether the making Bishops had been duly and orderly done according to Law the Statute saith That the questioning of it is much tending to the slander of all the Clergy being 〈◊〉 of the greatest States of the Realm So Sir (g) P. 36. Thomas Smith as in the last Chapter I have noted distinguisheth the two Houses into three Estates and Sir Edward (h) 4. Instr p. 1. Coke saith expresly That the High Court of Parliament consisteth of the Kings Majesty sitting in his Royal Politick Capacity and the three States of the Realm viz. the Lords Spiritual Lords Temporal and Commons the like the learned (i) Interpreter tit Parliament Cowel affirms Sir Henry Spelman (k) Solenne collequium omnium Ordinum Regni Authoritate solius Regis ad consulendum statuendumque de negotiis Regni indictum Gloss p. 449. calls it a Colloquy of all the Orders of the Kingdom convened by the sole Authority of the King to consult and appoint in the Affairs of the Kingdom This was also known to Foreigners uninteressed Persons for the Lord Argenton speaking how Subsidies were granted in England saith * Lib. 5. p. 253. Convocatis primis Ordinibus Clericis Laicis assentiente Populo And Bodin ‖ De Repul lib. 6. whenever he speaks of the Constitution of our Parliament calls it the King and the three Estates of the Realm But to put all out of doubt in King Charles the Second's Reign it is determined in the Act for the Form of Prayers for the Fifth of November For the Preservation of the King and the Three Estates Now the reason why in King Charles the First 's answer Why in some of King Charles the First 's Writings the King was called the Third Estate we meet with the expressions of making the King the third Estate was because at that time the Bishops being voted out of the House of Lords and the two Houses setting themselves in all the points of Controversie in opposition to the King the notion of a Triumvirate was more intelligible as it may be thought to the People and those who were so bitter Enemies to the King and had such a Rebellious force would have still increased the Peoples aversion if the King had asserted his Royal Prerogative otherwise Whether this were the true reason or the oversight of the Penners of his Majesties Answers I will not undertake to determine but I am induced to believe the first because I find the King and those that writ in defence of his Cause using frequently this way of Argument In every State there are three Parts saith (l) Review of Observations one the King ordered to write for him capable of just or unjust Soveraignty viz. the Prince Nobles and People Now through the Piety of our Lawgiving Princes a just and regular course of Government being obtained the stability of which being found to be more concerned in the Power of making Laws than in any other Power belonging to the Soveraign for preventing of Innovations that might subvert that setled regularity the frame and state of Government was in such a sort established as that the
Prince should be limited from using the legislative Power without concurrent assent of the Peers and Commons By which means the constitution of our Parliaments is so equal and geometrical and all parts so equally contribute their Offices that no part can have an extream predominance over other Therefore to prevent any evil that might come by the admission of two such Bodies to a participation of Power in this particular of making Laws if they should combine against the Soveraign the Law gives them an equal Power to assent or dissent The Ballancing of the Powers in Parliament so that opposing the single Power of every one of them to the Votes of every other two there might be so secure a balancing of the Power of one against the other that no practice of any two of them should do any prejudice and diminution to the third without the third Party it self did give consent unto it otherwise the King and Peers might oppress the Commons the King and Commons oppress the Peers or the Peers and Commons oppose the King and the Peers being easily oppressed by the Commons as we saw in our late calamitous Times an Appian Decemvirate or the 30 or 300 Tyrants might get the Power into their own hands In another place he saith Though properly Laws be the Acts of the King in Parliament yet are they also truly the Acts of the whole Parliament because every of the Estates contribute their Power according to the diversity of their Office and Interest and so as from a sacred Tripos the civil Oracles of the Law are delivered It is therefore to be considered saith a Judicious (m) King's Supremacy asserted c. 9. p. 96. where the Reader may find a full Answer to the Deductions they make from the King's way of arguing Author in answer to some other passages of his Majesty that the Parliamentarians wrested That if his Majesty out of a desire to save the effusion of Blood used such gracious Expressions as were most likely to prevail with the People and consolidate their Minds they ought not in Equity to prejudice the Rights of the Crown although he had abdicated therein some parts of his Authority and granted things destructive to his own Prerogative From his Majesties saying That the Power legally placed in both Houses is more than sufficient to prevent and restrain the Power of Tyranny they infer This cannot be made good without a Power of Resistance for that Tyranny cannot otherwise be restrained Which is easily answered For it cannot be understood that the King means by this a forceable resistance or restraint (n) Id possit quisquam quod jure possit but a legal one so far as Humane Prudence can by lawful and just ways provide The Power they have by Law being to inflict punishments on evil Instruments whereby others may be afraid to take upon them such Imployments and they may refuse to give the King Subsidies and other necessary Assistance if he refuseth to moderate excesses which are Powers more efficacious than resistance the success of the one being more probable and likely than the other However The not asserting of King Charles the First 's Prerogative disadvantagious in my poor opinion it had been more honourable and probably more efficacious to have spent less time in this kind of defending the Kings Interest by the Pen and have imployed it in asserting the true Prerogative of the King and his undoubted Rights to have let the People as well as the Houses know what he would reform and out of Princely Clemency grant for his Peoples ease and at their earnest Petition but neither to have depreciated or descended so much below the Majesty and Dignity of his place to enter into Reply and Duply Altercation and Apologies with his Subjects But that King composed all of Mercy Justice and Tenderness to his Subjects judging others by his own Royal Standard of Integrity let the Houses seize his Ships Magazines and left them the City of London's Purse while he retired to the North and plied the Houses with Declarations and Messages to have reduced them to their Duties and though his condescensions were great and the way of Argument such as before I have instanced in yet I cannot find except in that particular of making himself one of the three Estates that he yielded any part of his Royal Prerogative till he was made Prisoner that in his restraint he condescended to a temporary divesting himself of the Militia and other things which all sorts of Subjects except the very chief of those in Rebellion against him found infinitely more tending to the enslaving and utter ruine of the People than ever they could have been if the King had managed all by his absolute Will and the direction of those they accounted his worst Instruments I having in several places cleared the Kings Soveraignty shall only on this Head endeavour to answer the principal of those popular Reasons the Writers for the Parliament used not grounded upon any Law or Constitution of the Government but only upon the false supposition That the Wisdom of the two Houses was to be valued above the Wisdom of the King and Council in proposing matters for the Royal Assent which were conducible to the Liberty of the Subject which they pretended was their whole design and that they would establish the Kings Throne in more Glory and Splendor than had ever been in any Ages The first and principal Topick they used was The Monarchy of England not mixed That the Monarchy of England was in its Constitution allayed and the Power of the two Houses in making Laws had such a Copartnership and radical mixture that they had something more than a Consultive and Assenting part and that the King was oblig'd in the duty of his Office and by his Coronation Oath to grant what they desired Mr. Sherringham (o) King's Supremacy asserted p. 74. hath culled out the prime Arguments of the Author of the Treatise of Monarchy The fuller Answerer and others upon this Head and so fully answer'd them that I must refer the Reader to him for satisfaction and shall only select some of the chiefest of these Arguments more for the orderly continuance of this Discourse than for any need of repeating them First They say That King Charles the First owned the Law (p) Declaration from Nâ—wmarket 9 March 1641. to be the Measure of his Power and if so it is limited But this concludes no more than that his Power is of such a size and bigness as the Law hath ordained and if the Law give the King absolute full and entire Power and limits him only in the exercise of it this is a restraint and limitation according to such Laws as the Soveraign hath established in that particular alone and is the happiness of the English Subject that Kings act not Arbitrarily but this gives no Power to the two Houses to be any checks upon
ought to be made to him from all I shall not with Mr. Prynne in his Epistle Dedicatory to his third Tome of Chronological Vindication meddle with the dispute how the Canonists argue from the Popes Crowning of Emperors and Kings that they acquire a Spiritual and Temporal Monarchy over them as their Sovereign Lords For that however some may hold the Doctrine yet it is exploded by most As to the Crowning and Anointing of some British and Saxon Kings I must refer the Reader to Mr. Selden (k) Tit. Hon. part 1. c. 8. fol. 149. and Mr. Prynne in the forecited Epistle The first of our Kings that is recorded in History to have taken an Oath at his Coronation was Canâ—tus of whom Sim. (l) De Gestis Regum Agg. col 173. Wigorn. Chro. 384. Dunelmensis and others give this account That after the death of Aethelred the Bishops Abbats Dukes and the Nobles of England and the most part of the men of the Kingdom as well of the Clergy as Laity met together with one consent at Southampton and chose Canutus for their King and swore Fealty to him to whom he also swore Quibus ille juravit quod secundum Deum secundum seculum fidelis esse vellet eis Dominus King Canutus his Oath that according to God and the World that is the Laws of God and the Kingdom he would be a faithful Lord unto them Mr. Prynne here noâ—es that Usurpers more frequently used to take such Oaths than lawful hereditary Kings So when the Citizens of London and some few Noblemen with unanimous consent chose (m) Clitonem Eadmundum unanimo consensu in Regâ—m levavere Matt. Westm p. 410. 411. Edmond called Ironside the eldest Son of Aethelred who was right Heir there is no mention of an Oath So when Harold reputed Son of Cnute was Crowned there is no Oath recorded nor of any taken by Hardicnute right Heir of Cnute So Anno 1041. (n) Flor. Wigorn. Chro. p. 404. Edward the Confessor 's Oath Edward the Confessor annuente Cleno Populo Londoniis in Regem eligitur and was Crowned Anointed and Consecrated yet not any of our Historians besides William of Malmsbury de gestis Regum Lib. 2. c. 13. p. 80. speaks of an Oath who saith that he being sent for by the Nobles upon terms proposed to him by Earl Godwyn there was (o) Nihil erat quod Edwardus pro necessilate temporis non polliceretur Ita utrinque fide datae quicquid petebatur sacramento sirmavit nothing that King Edward did not promise by reason of the necessity of the time so that Faith was given by either Party and what was desired he confirmed by Oath but this was in their private Consultation Yet Archbishop (p) In Regem Angliae sublimatus prius juravit se Leges Canuti inviolabiliter servaturum Spelm. Conc. tom 2. p. 342. Stratford in his Epistle to King Edward the First saith that St. Edward being raised to be King of England first Swore inviolably to keep the Laws of Canutus We find no Coronation Oath of Harold mentioned Matt. Westm Flor. Hist p. 433 saith that extorta fide a Majoribus Capiti proprio imposuit Diadema that having exacted Fealty of the great Men he put the Crown on his own Head and after when Crowned by Archbishop Alfred William the Conqueror 's Oath he took no Coronation Oath but as my Author saith Leges aequas coepit condere (r) Elo. Wigorn. Chro. p. 412. Hoveden part Annal. prior p. 450. Stubs Acta Pontif. col 1702. Coram Clero Populo jurando promittere se velle sanctas Ecclesias Rectores earum defendere necnon cunctum populum sibi subjectum justa Regali providentia regere rectam Legem statuere tenere Rapinas injustaque judicia penitus amovere interdicere Sim. Dunelm col 195. num 43. As to King q William the Conqueror Aldred Archbishop of York Crowned him and imposed on him an Oath The words of the Authors are Ipsa nativitatis die ab Aldredo Ebor. Archiepiscopo apud Westmon in Regem totius Angliae sublimiter Coronâ—um inunxit consecravit honorifice Having before as 〈◊〉 Archbishop required from him before the Altar of St. Peter the Apostle before the Clergy and People by Oath promised That he would defend Holy Church and the Governours of it which Clause occurs not before and likewise govern all the People subjected to him with a Just and Regal Providence and appoint and hold right Law and wholly remove and interdict all Rapines and unjust Judgments The Oath which he took to observe St. Edward's Laws was afterwards Anno 1072. when he entring into a Parly with the English Nobility who intended to have set up Edgar Atheling because King William had violated their ancient Laws and introduced new ones he by the Advice of Archbishop (r) Man Paris vita Fritherici Abbatis 13. St. Albani p. 30. Lanfrank Swore that bonas antiquas Leges Regni sc Leges quas Sancti pii Angliae Reges maxime Rex Edwardus statuit inviolabiliter observare Only William of Malmsbury (s) Modeste erga subjectos ageret aequo jurâ— Anglos quo Francos tractaret De Gestis Pontif. lib. 3. fol. 154. saith that Aldred the Archbishop would not consecrate him before he had exacted from him before all the People this Oath That he would modestly deport himself towards all his Subjects and with an equal Law treat the English as he did the French William Rufus promised to Lanfranck (t) Justitiam aequitatem misericordiam se per totum Regnum si Rex foret in omni negotio servaturum pace libertatem securitatem Ecclesiae contra omnes defensurum Eadmerus Hist Novel lib. 1. p. 13 14. If he were King King William Rufus's Oath in all his Affairs through all his Kingdom to preserve Justice Equity and Mercy and to defend the Liberty and Security of the Church in Peace against all H. Huntingdon Lib. 7. fol. 213. b. and Hoveden Anno 1088. fol. 264. b. say That when he needed the help of the English he promised them such desirable Laws or better than they would chuse But Malmsbury and others say he kept them not for Usurpers such as he was rarely observe the Laws or their Promises further than they serve their own Interest Therefore Mr. Prynne notes that the Promise Eadmerus and (u) Col. 214. Simeom Dunelm mention was before he was King and the other Promise was when most of the Norman Nobility except the Archbishop Lanfranck designed to make Robert his Brother King and then he called them together and then told them If they would be Faithful to him (w) R. Hoveden part 1. Annal. p. 264. b. num 20. Meliorem Legem quam vellent eligere eis concederet omne injustum Scottum interdixit (x) Lib. 7. fol. 213. b. Huntingdon saith the promised
them exoptabiles leges and that they should have their Woods and Hunting free It is recorded of Henry the First King Henry the First 's Oath that having gathered to London the Clergy of England and all the People he promised them an amendment of the Laws with which they were oppressed in the time of his Father and his Brother lately deceased that he might obtain their (y) Vt animos corum in sui promotionem accenderet good Wills to his Promotion and that they might receive him for their King and Father to which the Clergy and all the Nobility answered * Si animo volenti ipsis vellet concedere charta sua communire illas libertates antiquas consuetudines quae floruerunt in Regno tempore Sancti Regis Edwardi Mat. Paris 250. n. 53. Hist Novel lob 3. p. 55. That if with a willing Mind he would grant them and with his Charter confirm all the Liberties and ancient Customs which flâ—rished in the Kingdom in the time of the Holy King Edward they would consent to him and unanimously consecrate him King and he freely yielding to his and affirming by his Oath that he would do it he was consecrated King the Clergy and People favouring it Eadmerus saith That in ipso consecrationis die bonas Sanctas omni Populo Leges se servaturum omnes oppressiones iniquitates quae sub fratre suo emerserunt in omni sua dominatione tam Dei Lege quam in secularibus negotiis prohibiturum subversurum sposponderat haec omnia Jurisjurandi Interjectione formula per totum Regnum divulgata ire praeceperat and when he was Crowned he granted the Laws recited by (z) Diademate insiâ—nitas has libertates subscriptas in Regno ad exaltationem Sanctae Ecclesiae pacem Populo tenendam concelsit Mat. Paris Hist p. 46. num 40. ult Edit Matthew Paris to be held in his Kingdom for the exalting of the Holy Church and Peace of his People which Laws being at large recited by Matt. Paris may be perused by the Inquisitive wherein he will find how far the old Laws were confirmed and what a Foundation there was laid for Magna Charta Concerning King Stephen (a) Histor. Novel p. 101. b. num 40. Vide Mat. Paris p. 62. num 35. Malmsbury saith King Stephen's Oath That Henry his Brother Bishop of Winchester was a great help to his obtaining the Crown having great hopes that he would follow his Grandfather King William's Steps in the Government of his Kingdom especially in matters of Ecclesiastical Discipline therefore he saith William Archbishop of Canterbury 〈◊〉 exacted a solemn Oath from him of granting and preserving the Liberty of the Church the Oath it self is long and the Immunities to the Church many those to the Laity are conceived in these words Omnes Exactiones Mescheningas Injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo Bonas Leges Antiquas justas Consuetudines in Murdris Placitis aliis Causis observabo observari praecipio constituo Malmsbury saith That the King swore according to the tenor of the Writing he there produceth Dated at Oxford Anno Dom. 1136. 1 Regni I find no mention of an Oath taken by K. H. 2. at his Coronation but (b) Chron. col 1043. num 67. Brompton saith that he confirmed the Charter of his Grandfather King Henry the First King Henry the Second's Oath and that he was sollicitous ut Lex quae extincta videbatur paulatim exsurgeret and Matt. Paris (c) Hist 1080 1081. saith That Anno 1172. he swore before the Cardinals that he would abrogate all the evil Customs introduced in his time against the Church We find that Pope Alexander (d) Gul. Newbrigensis lib. 4. c. 25. Gerv. Dorob Chron. col 1413. Matt. Paris p. 117. the Third Excommunicated several Bishops and suspended the Archbishop of York for his rash Presumption in the Coronation of a new King in contempt of the Archbishop of Canterbury to whose Office of ancient Right it was known to belong and for that in the Coronation according to Custom there was no sworn Caution offered or exacted by them for the keeping of the Liberties of the Church but afterwards (e) Vt Regni consuetudines antiquas sub quibus dignitas pericliâ—bitur Ecclesiae illibatae debeant omni tempore observari Hoveden Annal. pars poster p. 518 519. it is said to be confirmed by Oath that the ancient Customs of the Kingdom from which the dignity of the Church was in danger should inviolably be kept in all time to come The Solemnities of King Richard the First 's Coronation are fully described by the Abbat of Jorval (f) Rectam Justitiam exercebit in populo sibi commisso leges malas consuetudines perversas si aliqua sint in Regno suo delebit bonas custodies Brompton col 1158. num 60. and as to his Oath King Richard the First 's Oath he saith that he swore and vowed the Holy Evangelists and the Reliques of many Saints being set before him that he would bear Peace Honour and Reverence all his Life to God and the Holy Church and its Ministers and then he swore that he would exercise right Justice to the People committed to him and after he swore that he would blot out or abolish evil Laws and perverse Customs if any were in his Kingdom and he would keep good Laws I find that King John took an Oath as Duke of Normandy King John's Oaths that he would defend Holy Church and its Dignities in good Faith without evil Intention and would honour all the Ordained and that he would destroy all evil Laws if any were and substitute good ones the words (g) Matt. Paris fol. 165. ult Edit num 27. are quod ipse Sanctam Ecclesiam ejus dignitates bona fide sine malo Ingenio defenderet ordinatos honoraret quod Leges iniquas si quae essent destrueret bonas surrogaret At his Coronation (h) Quod sanctam Ecclesiam ejus ordinatos diligeret eam ab incursione malignantium indemnem conservaret quod perversis legibus destructis bonas substitueret rectam Justitiam in Regno Augliae exerceret Idem p. 166. num 4. Promisit se per anxilium Dei bona side ea quae juraverat servaturum he took another Oath that he would love Holy Church and the ordained of it and would preserve it indempnified from the Incursions of the Malignant and that the perverse Laws being destroyed he would substiâ— good ones and would exercise right Justice in England Besides these Matth. Paris p. 189. of the Old Edition saith That he was sworn by the said Archbishop ex parte Dei districte prohibitus ne honorem hunc accipere praesumeret nisi in mente habeat opere quod juraverat
adimplere that is On the part of God by the Archbishop he was strictly forbid that he presume not to take this Honour unless he had a resolution to fulfil in work what he had sworn To which the King promised That by the help of God he would in good faith observe what he had sworn In the Fifteenth of his Reign he was forced by the Barons to take another Oath (i) Mat. Paris Hist p. 229 230. Quod sanctam Ecclesiam ejusque ordinatos diligeret manuteneret contra omnes adversarios suos pro posse suo quodque bonas Leges Antecessorum suorum praecipue Leges Edwardi Regis revocaret iniquas destrueret omnes homines suos secundum justa Curiae suae judicia judicaret quodque singulis redderet jura sua Juravit praeterea Innocentio Papae ejusque Catholicis Successoribus fidelitatem obedientiam And that he would make restitution of those things he had taken away by reason of the Interdict This Clause of restoring King Edward's Laws which had been disused from the time of the Conquest being thus inserted in King John's Oath was after inserted into the Coronation-Oath of Edward the Third and so continued The best Account of the Coronation-Oath of King Henry the Third is in (k) Idem p. 243. num 26. Matthew Paris That he swore before the Clergy and People The Oath of King Henry the Third the Holy Evangelists and the Reliques of several Saints being laid before him and Joceline Bishop of Bath reading the Oath which was very little different from that which King John took Quod honorem pacem reverentiam praestabit Deo sanctae Ecclesiae ejus ordinatis omnibus diebus vitae suae and so word for word as in King John's only for perversas consuetudines here is iniquas consuetudines It was in relation to the preceding Oaths that (l) 1. IVt Ecclesia Dei omni populo Christiano vera pax omni suo tempore observetur 2. Vt rapacitatem omnes iniquitates omnibus gradibus interdicat 3. Vt in omnibus judiciis aequitatem praecipiat misericordiam Bract. lib. 3. de Actionibus c. 9. fol. 107. Bracton saith The King ought at his Coronation in the Name of Jesus Christ being sworn to promise these three things to the People being his Subjects First To command and to his power see it performed that the Peace shall be kept to the Church and all Christian People in all his time Secondly That all Ravages and all Iniquities in all degrees shall be by him forbidden Thirdly That in all his Judgments he shall command Equity and Mercy and that by his Justice all may enjoy firm Peace per Justitiam suam firma gaudeant Pace universi None of our Historians mention the Oath of Edward the First that I have met with King Edward the First 's Oath not recorded nor Mr. Prynne Therefore I think it very probable that it was conceived in the same Form as that of his Fathers and Grandfathers That he took an Oath for it is most certain that he took one by the Expressions in sundry of his Prohibitions to the Legates of Popes to Bishops and others in these Words Torpescere non possumus quia exhaeredationem quae statum Coronae nostrae contigit sicut ex Sacramenti vinculo adstringimur pro viribus evitemus ne Coronae dignitatis nostrae Jura depereant studiosam (m) Prynne's Epist Dedicat. to the chird Vol. of Legal Vindication nos debet operam adbibere ad ea manutenenda conservanda eo potius debemus esse solliciti quoad hoc vinculo juramenti teneri dignoscimus adstringi that is We cannot be slothful because we should avoid to our power our dis-inheriting which appertains to the State of our Crown as we are tied by the Bond of our Oath which to maintain and preserve we ought to afford our studious help lest the Rights of our Crown and Dignity perish and we ought the more to be solicitous in this as that we know our selves to be held and bound by the bond of the Oath Hitherto we find nothing of the Vulgus elegerit besides what is mentioned in King William Rufus his promise That he would grant his Subjects a more desirable Law and better than they could chuse which is no ways to be interpreted of such a choice as the Republicans would have understood Our Historians are generally silent what the Oath was that Edward the Second took The Oaths of King Edward the Second and King Edward the Third but it is to be found in the Clause Rolls of the Tower (n) Cl. 1. E. 2. num 10. 1 E. 2. in French thus which I shall render into English as well as I can Also Cl. 1 E. 3. m. 24. dorso SIRE Volez vous granter garder per vestre serement confirmer au People d' Engleter les Leys les Custumes a eux grantes per les Anciens Rois d' Engleter voz Predecessours droitas devotz a Dieu nomement les Leys les Custumes Franchises grantz au Clergie au People par le glorieus Roy Seint Edward votre Predecessure Respons Jeo les grants prometts Sire Garderez vous a Dieu a Seint Eglise au Clergie au Poeple Pece accord en Dieu entirement selons vostre Poair Respons Jeo les garderez Sire Freez or perhaps feres vous faire en tous voz Jugements ovels droit Justice discretion en misericorde verite a vostre Poair Respons Jeo les fray Sire Grantez vous a tenir garder des Leys les Custumes droitureles le quels la Communate de votre Roiaume auras eslu les defenderz inforciers al honeur de Dieu a votre Poair Respons Jeo les grants prometts SIR Will you grant and keep and by your Oath confirm to your People of England the Laws and Customs granted to them by the Ancient Kings of England your predecessors righteous and devout to God and namely the Laws and Customs and Franchises granted to the Clergy and the People by the glorious King St. Edward your Predecessor Answer I do grant and promise this Sir Do you keep to God and his Holy Church and to the Clergy and to the People Peace and accord in God entirely according to your Power Answer I shall keep these Sir Will you suffer to be done in all your Judgments equal and right Justice and Discretion with Mercy and Truth according to your Power Answer I will do it Sir Do you grant to hold and keep the Laws and the Customs that are lawful which the Community of your Realm shall have chosen and defend and enforce these to the Honour of God to your Power Answer I grant and promise them Several Answers have been given to the Objection raised from this last Clause The Oath of King Richard the
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
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
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-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
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author
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
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
preserved in Peace Arms are necessary and they cannot be provided for without Taxes The Subjects receive the benefit of protection and by the care of the Government peaceable possession of their Houses Fields and Cattle Liberty of Trade dispensation of Justice and other great Emoluments by its guard and vigilance which require a numerous retinue of Officers of State Justice and War and Multitude of subordinate Ministers Something also must be allowed for the grandeur and port is necessary for the regulating it at home and abroad the maintaining Correspondence by Ambassadors the providing for defence against foreign Invasions and preserving Tranquillity at home in all which the Publick is concerned therefore the reason is very just and equitable that besides a standing Revenue for defraying these constant charges there should be subsidiary supplys upon emergencies adequate to the occasions As Cicero justly admonisheth Da operam ut omnes intelligant si salvi esse volunt necessitati esse parendum That the Subjects be made to understand that if they will be safe As the Subject is protected so he ought to support the Government they must yield to necessity this absolute necessity of parting with a portion of their Estates for securing the rest For though it be prudence in a private man justly and moderately to enrich himself yet craftily to withhold from the Publick and to defraud it of such parts of the Wealth as is by Law required is no sign of prudence saith Mr. Hobs as judiciously as any position he lyes down but want of knowledge of what is necessary Civil War for their own defence and covetousness to part with nothing they can hold makes this restive humour in many That the Kings of England have quitted that Soveraign badge of raising money upon the Subject by their own Impositions without consent of Parliament is manifest since Edward the First 's time (b) 27 E. 1. c. 5. Anno 1299. The Act for which runs thus For so much as divers People of our Realm are in fear that the Aids and Tasks which they have given us before time towards our Wars and other business of their own grant and good will howsoever they were made might turn to a Bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prices taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw such Aids Task nor Prices into a Custom for any thing that hath been done heretofore be it by Roll or any other Precedent that may be found (c) Cap. 6. The next is thus Moreover we have granted for us and our Heirs as well to Archbishops Bishops Abbats Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks nor Prices but by the common assent of the Realm and for the common profit thereof See for this the Charter of King John saving the ancient Aids and Prices due and accustomed These being not fully enough expressed the Statute of 34. E. 1. though as short in words as any to be found yet is of the largest extent and as liberal a Boon of Royal bounty as any People can boast of from their Prince It is thus No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm without the good will and assent of Archbishops Bishops Earls Barons Knights Burgesses and other Free-men of the Land Therefore all those who would enjoy the benefit of this Law must take care they preserve the Succession and the two Houses of Parliament (d) MS. Speech second Parl. Elâ—z an 1562. Inducements to supply the Sovereign The Lord Chancellor in Queen Elizabeth's time thus by the Queens command discourseth to the Houses If when any part of the natural Body hap to be in danger the Head and every part hasteth to the relief so how inconvenient and unnatural is it when danger is offered to the whole that the Head should take the whole care and bear the whole burthen and the Members remain uncareful and uncharged It is certain (e) Coke Instit 1.90 the Prince can make no War of any great concernment without the assistance of his Subjects Purses as well as Bodies unless all would voluntarily serve upon their own charges for that neither sudden dangers can be evaded nor Forces raised and all things necessary for them provided nor peace be long preserved when the Prince hath an empty Exchequer for Treasure is Firmamentum Belli Ornamentum Pacis A late (f) States of France Objection French Author concerning his own Country makes this objection That Princes having assigned for their usual charges of the Government Tribute and other Incomes they ought to be therewith contented and not without occasion raise new Taxes to the detriment of the Liege people and contrary to the intention of the Trust Yet he owns this ought to be soberly understood for a wise Physician applies those Remedies necessary without the Patient's leave and will force him though by cutting off a Limb to save his life So when there may happen a necessity urgent and unforeseen that either will suffer no delay or which ought not for some time to be divulged in such cases saith he the King without the States and whether they will or no may lay new Impositions and make all other necessary provisions by the absolute Power he hath to rule and preserve his State and Subjects he not being able to defend them without necessary Forces Therefore in such occasions it is to be supposed that with the Power of Government there is transferred to the Prince the Power to do that without which good Government cannot be executed but when there is not that kind of necessity the States are called Thus far my Author Since therefore (g) Coke 1. Insiit p. 161. qui diruit medium destruit finem he that takes away the necessary means for a King to preserve his people in uncommon events hazards the ruine of the People some have inferred that when dangers should be so sudden that there could not be time to convene a Parliament or that such a Parliament met should for some design deny the Prince Money then the Kings Prerogative might extend to the raising of Money and they instance in the Loans by Privy Seals exacted upon the Subjects even in Queen Elizabeth's time This indeed was the Plea for Ship-money and as the case was stated by King Charles the First Concerning Ship-Money all the Judges once subscribed their affirmative opinions though Mr. Justice Hutton and Crooke retracted after and with great learning the case was argued and Judgment given in favour of the King Yet he hoping by the yielding to the abolishing of it to have stopped the misery of a War consented to an
of enlarging their Priviledges have subjected themselves as well to the slavery of Red-coats and the Tyranny of a Corps du guard or Council of War as they had their Prince under their Committees and Armies which considerations I hope will be worth their remembring What I have writ in most of the Chapters of this Treatise less or more appertains to the Gentry out of a true and cordial desire that if any such Critical time should in any Age return as that of Forty and Forty one or Eighty and Eighty one the Gentry may consider the History of former Ages and be able to distinguish betwixt Realities and feigned Pretences and will well weigh what I have writ in the preceding Chapter of the Nobility for that it is in most particulars applicable to to them which makes me shorter in this and that above all things they will seriously consider that though in every (l) Mâ—gis alii 〈◊〉 nes quâ—m alii mores Taâ—it 1. Histoâ— Generation new Men do arise that to carry on their Factious Design pretend different Causes yet the ends of all that are Male-contents and seditiously displeased with the Government is the same and commonly their Fate is parallel Therefore above all the Infections let them study to avoid that of murmuring and repining against the Government or that of being seduced by those who cover their dark Thoughts and Designs too close to be discovered by common Eyes The more such pretend Zeal for the common Good the more they pretend publick Spirits and care of Religion If they be found to have any the least Tincture of Immorality Envy Ambition Revenge Cruelty or aspiring in their Tempers the more they are to be suspected and avoided CHAP. XXXIX Of the Commonalty of England of the lower rank especially THESE are more especially the subject matter of Government The Employments they are engaged in The Common Peoples Duty makes it more profitable for them to look downwards and cultivate their Freeholds and Tenements and reap the golden Fruits of their Toil than to spend their time in the fruitless enquiries after the managery of States and Empire for whereover Soveraignty lodgeth they must still be Subjects Obedience saith a well observing (a) Cornwallis's Es says 46. Author not Examination is the destined Function of the Common People which Laws preserve them in The Industrious would soon be ruined by the Free-booters in every Hamlet if the Laws and Government were not their Guard By the several Rebellions properly of the Commons in Richard 2. H. 8. The Miseries of Insurrections and Edward the Sixth's time we have sad Examples of the Calamities they brought not only on their Neighbours and the disturbance they gave the Government but likewise the ruins they brought upon themselves and when they had wearied themselves with Rapine Murthers and a Hundred cruel Ravages and Butcheries they were at last either totally subdued and their Chieftains Executed and the rest Fined or they perished in the Fight being never able to effect any of their pretended Liberties they made the Insurrections to have obtained It is for want of Consideration that they are decoyed into such barbarous Outrages which in such Rebellions they generally commit They ought to consider Their Obligations to their Prince and that very seriously that it is from their Princes sollicitous Care that they enjoy Peace and Plenty to them they owe not only Allegiance and Obedience as they are their Soveraigns but especially Gratitude Loyalty and all dutiful Services For the good Laws from time to time have been confirmed by their Kings for their Prosperities without which they would be in a continual State of War and Feuds one against another They owe to the Paternal Care and Prudence of the Sovereign and his Government those Methods and Rules whereby they are so benignly ruled in England especially whereby they are in a freer and more plentiful Estate than any other Commoners in the World By the vertue of those Priviledges granted to them by their Kings they have Propriety in their Goods none can out them of their Possessions imprison or molest them while they observe the equitable Laws Their Privileges They have according to their several Capacities and Abilities a participation of Offices in their particular Hamlets Parishes Wapentakes or Counties either relating to the assistance to the Justice of the Land in Juries or conserving of the Peace in being petty or chief Constables or other Officers and have a peculiar Priviledge many other Commoners want of chusing their Representatives whereby they are only subject to such Laws as they or their Ancestors have given consent to The Government worthy Country-men makes fertile your Enclosures protects your Flocks and Herds secures your going out and coming in makes your Sleeps undisturbed guards your home-bred Commodities when you send them abroad secures those are brought home to you appoints you Markets for buying or selling your Corn and Cattle and your own Manufactures Let those among you The Calamities they sustained in the late War that are not ashamed they were Sequestrators Membrs of the Parliaments Army or active Officers Oppressors Plundereres or Informers against their Loyal Neighbours consider what they reaped in the late unhappy Wars begun with all the specious Pretences of redressing grievances securing Propriety and reforming Religion precious Names most wickedly abused Remember how unsupportable were the Taxes and Sequestrations What affrightments were you continually in by the Quartering of imperious Soldiers and their Plunders where they neither left Food nor Rayment for your Wives and Children and what they could not devour or carry away they destroyed Consider the effusion of so much Blood in the cruel Battles and their most unjust High-Courts of Justice how all the Laws either were stifled or miserably distorted The best Preservatives against the relapse into such miserable times Advice to the Commonalty is to reflect upon them often to live quietly under your Sovereign to give him no occasion to unsheath any of his Swords against you to reduce you to Obedience Avoid all Factious Whisperers of discontent You were within these six Years by past wrought so upon by cunning Designers of a Commonwealth that you made choice of such Representatives as neither would supply that Prince o immortal Memory who had preserved them and you in that Peace he had restored them to when nothing but War and miserable Devastations were in all the Countries of the Continent nor admit our present Gracious Soveraign who had adventured his Life so often for their Safety to succeed in the Throne of his Royal Ancestors Remember I beseech you dear Countrymen these things and consider how near the Gulph and Pits Brink of inevitable Miseries you were Be thankful to those Loyal Persons who by their Counsels and Addresses withheld you from the imminent Ruine Be mis-led no more by such as can sow nothing but Darnel Cockle Poppy and Tares among
When Princes not to make themselves Parties but only private-Animosities betwixt some of the Nobility wherein the Government is not much concerned there may be some allowance for my Lord Verulam's Opinion That Princes being Common Parents should not lean to one Party because a Boat that is overset by the unequal Weight on one side may carry such Passengers in it as the Prince would not lose Therefore to study ways to piece them and solder up the flaws is better than to side with one to the Ruin of the other and sometimes of themselves also As we may observe in Henry the third of France who entred into the League and it was shortly after turned against himself which may be a document saith that wise Lord to Kings how they make themselves a Party for by that a Prince makes himself unus ex nobis which makes an Obligation Paramount to that of Soveraignty So that a Prince must be very cautelous when he must side with one Party which he espouseth (d) In caducam pariâ—tem ne inclinet lest he lean upon a ruinous Wall But if there be a Party by whose fall the Prince (e) Cujus râ—ina se quoque tradura est Tacitus de Moribus Germ. likewise shall be sure to be ruined as in case of Factions against Government as I mean in this whole Discourse it is necessary for him strenuously to support it When Princes to support one Party Upon this Consideration it seems to me that it ever will be the great Interest of the Kings of England to defend and support the Episcopal Government for that by fatal Experience it was found that the overthrow of it was the Praeludium to the Destruction of the Blessed King and Monarchy For although he was a very great Champion of the Church of England as established by Law yet he too fatally yielded to take away the Bishops Votes in Parliament whereby he lost a considerable Party in the House that would never have deserted his Interest So that in this case I may apply that of Galba (f) Manifestum est neque perire nos neque salvos esse nisi una posse Tacit. 10. Hist P. 195. Edit Lips 5. to his Soldiers It is manifest that undivided or alone they can neither be Saved or Perish in times when they are attacqued But to return to the Prognosticks of dangerous Seditions I shall mention some that Tacitus hath noted and described Speaking of the Revolt of the Legions in Germany under Germanicus at the Beginning of Tiberius's Reign Unanimity a dangerous Sign he saith Those that looked deeply into the Disposition of the Soldiers judged it a strong Argument of an unappeasable Revolt (g) Id militares animos altius conjâ—â—â—antibus praecipuum indicium magni atque implacabilis motus quod neque disjecti nil paucorum instinctu sed pariter ardescerent pariter silerent tanta aequalitate constantia ut regi crederes 1. Annal. that they were not scattered or divided nor any attempt given by a few but grew insolent together were quiet at once with such moderation and constancy that one would have thought they had been governed by one Head For when any Sedition is carried on with such Unanimity it is a certain Sign that the Poyson hath a large spread and there are few sound Parts left The Progress (h) Ad tuendam plebem Tribunitio Juâ—e â—tentum militem doâ—is populum Annena cunâ—los dulcedine oâ—ii pellexit Insurgere paâ—tatim munia Senaâ—us Magistratuum Legum in se trahere nullo adversante lbid Augustus made to establish the Sovereignty in himself The Methods of Designers is the usual Method by which such as intend subverting of Government may proceed which according to the same Author was That to ingratiate himself with the People he contented himself with Tribunitian Authority to defend the Common People that he wound himself into the Favour of the Soldiers by Gifts of the People by Provision of Sustenance and of all in general with the sweetness of Ease and Repose by little and little taking upon him the affairs of the Senate the Duty of the Magistrates and Laws and so without the Contradiction of any he obtained the Empire This in Augustus was commendable and Politically done being to alter a Commonweal into a Monarchy and Wisemen by his method might have foretold his Design So in Seditious enterprises against Monarchy the way is to court the People and insensibly cajole them with the sweetness of Liberty under a Commonwealth and the heaviness of the Yoak of Monarchy and having possessed them with this they have no more to do but to await some critical time or revolution that may suit their Design as some new Imposition laid some publick Calamity the displacing some great Officer or Death of some great Man or their Prince such (i) Opportunos magnis conatibus transitus rerum 1. Histor Revolutions being the sittest times for great Attempts as Tacitus speaks of Otho's Conspiracy by Galba's Covetousness to the Soldiery c. Concerning Sejanus the same Judicious (k) Primas dominandi spes in arduo ubi sis ingressus adesse studia ministros Lib. 4. Annal. Author gives us the Saying of Drusus That the first hopes of attaining Command or working themselves into Power by Sedition is difficult but after the Entrance there will not want aids of Council and assisting Hands Therefore it is most necessary Speedy Suppression most necessary that Princes diligently watch the motions of all kind of Seditious aspiring Persons to prevent their first Entrance upon their Designs lest they prove afterwards too Powerful In such a State of affairs the Council of (l) Nibil in civilibus discordiis festinatione tutius ubi facto magis quam consilio opus 1. Hist Tacitus is to be followed That nothing is safer in Seditions and Civil Discords than quickness of dispatch when there is more need of Action than Consultation The misfortune is great which happens to the Subjects by Faction and Sedition The Mischiefs of Faction for such things once begun are not in a short time hushed but the Animosities are durable and when one (m) Inter victores victosque nunquam solida sides coalescit Idem 2. Hist Party overcomes yet the Conquered retains his old grudge and is always catching at opportunities to promote his Interest and there is rarely in that Generation at least a sincere amnesty and union of Affections Therefore as Princes by Acts of Pardon endeavour to put all into a State of Unpunishableness though they cannot into a State of Innocence so those that have assisted the Seditious Party ought with a generous Repentance and Fidelity to their Prince endeavour all their Lives to be rubbing out those Stains by their Loyalty For he that (n) Quem paenitet peccasse pene est innocens repents he hath offended is in the next degree to the Innocent It
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
his two Sons Proclus and Euristhenes to an equal share in the Lacedemonian Throne The like observations are to be made in the Succession of Ptolomaeus Lagus and Ptolomaeus Phisco In the Sons of Severus in the Succession of Sinesandus who killed his brother Suintill rightful Heir of Spain and that of Sforza and Francis Duke of Milain and thousands more in all which either the Usurpers or the Kingdoms that obeyed them perished utterly or were brought to great ruine In Britain the whole nation of the Picts were extirpated by the endeavour of that People to hinder Keneth Son of Alpinus from possessing the Kingdom as right Heir of Fergusiana Sister of Mordred their King In England the Usurpation of Harold upon the Right of Edgar opened the passage to William the Conqueror The Usurpations of William Rufus and Henry the First upon their Brother Robert and of King Stephen upon the Empress Maud were accompanied with great effusion of Blood So that a great part of the ancient Norman Nobility both such as resided there or were transplanted hither were slain or grievously harassed The Usurpation of King John upon his Nephew Arthur caused great disquiets during his Reign and the effects lasted a great while after The removal of King Richard the Second by Henry the Fourth occasioned those lasting Wars and most miserable devastations betwixt the Houses of York and Lancaster during which Usurpation before the Crown was setled upon Edward the Fourth Historians reckon no less than seventeen pitched Battels and eight Kings and Princes of the Blood slain and put to death and that forty six Dukes and Earls besides innumerable Barons and Gentlemen and above 200000. common People were slain and destroyed in the space of Sixty Years To which we may add the cruel death of Edward the Fifth and his Brother by their bloody Unckle and his own miserable end and the calamitous fall of the Lady Jane Grey and her Noble Relations All which Princes although for the supporting their unjust Claims Invasions and Usurpations of the Crown they procured Parliamentary concurrence and popular Establishments yet after so great effusion of blood could not in reality transfer the Right from the next Heir of the blood but at last all centred again in the Right Heir ERRATA PAge 7. line 31. for Babarous read Barbarous for und r. and l. 24 for wins r. wires p. 13. l. 6. for Resumption r. Presumption p. 17. l. 5. for who r. where p. 44. l. 45. for removeable r. removal p. 47. l. 27. for purity r. parity p. 63. l. 26. for Herds r. Hords p. 81. l. 18. for third r. fifth p. 83. l. 46. for than r. not p. 92. marg l. 5. for mediocrita r. mediocriter and below for ad Clement r. ad Cluentem p. 133. l. 48. after before r. l. p. 141. l. 36. dele That p. 150. l. 28. for Peace r. Grace p. 152. l. 27. for 68. r. 6. E. 1. p. 160. l. 43. for Sarson r. Sarron p. 162. l. 12. for Fenix r. Ferrix l. 48. after rewards add he p. 167. l. 18. after find add 4 p. 176. l. 5. for implied r. imployed l. 32. for Frameae r. Framiae p. 180. l. 46. for Wargild r. Weregild p. 181. l. 10. for many r. money p. 194. marg l. 17. for King Edward's r. King Edmund's p. 197. l. 41. for Northrigena r. Northwigena p. 199. l. 19. for Markesus r. Markerus p. 216. l. 11. for Silvanset r. Silvanect p. 222. l. 36. for Aubert r. Hubert p. 245. l. 18. for Bochan r. Boetian p. 266. l. 3. for whereas r. where l. 18. for Mauleveren r. Mauleverer p. 291. l. 36. for Hull r. Hall p. 321. l. 13. dele having p. 335. l. 12. for Privileges r. Prerogatives p. 341. l. 8. for Salteyn r. Salveyn p. 376. l. 33. for dies twice r. diu p. 380. l. 24. for ele r. aelc and in marg for vpp r. App. p. 387. l. 6. for lye r. tye p. 389. l. 5. after finishing add a Period l. 7. for almost r. all most l. 13. for Bretan r. â—â—â—â—an l. 14. for sorda r eorda p. 400. l. 28. for albe r. able p. 419. l. 2. for Hisparians r. Hipparians l. 3. for Cleotimac r. Cleotimas l. 17. for Peleponensian r. Peleponesian and for Ob r. Obe p. 427. for Fifthly Sixthly and Seventhly r. Fourthly Fifthly Sixthly p. 430. l. 13. for keep r. help p. 437. l. 24. for hopes r. hops p. 446. l. 37. for end r. and. p. 452. l. 31. for Fung r. Fangs p. 459. l. 1. for Brats r. Brutâ— p. 461. l. 7. for Colbar r. Cobbam l. 25. for Rebellious r. Rubellius p. 462. l. 43. for rare r. race p. 467. l. 28. for Praeter r. Praetor p. 468. l. 1. for discovered r. described p. 469. l. 11. for milder r. middle A Catalogue of Books Printed for and Sold by Robert Clavel at the Peacock in St. Paul's Church-yard Books in Folio A Companion to the Temple or a Help to Devotion in the Use of the Common Prayer divided into Four Parts 1. Of Morning and Evening Prayer 2. Of the Litany with the Occasional Prayers and Thanksgivings 3. Of the Communion-Office with the Offices of Baptism Catechism and Confirmation 4. Of the Occasional Offices viz. Matrimony Visitation of the Sick c. The whole being carefully corrected and now put into one Volume By Thomas Comber D. D. Praecentor of York A Practical and Polemical Commentary or Exposition upon the Third and Fourth Chapters of the latter Epistle of St. Paul to Timothy By Thomas Hall B. D. A Course of Divinity or An Introduction to the Knowledge of the True Catholick Religion especially as professed by the Church of England In Two Parts The one containing the Doctrine of Faith the other the Form of Worship By Matthew Scrivener Etymologicon Linguae Anglicanae seu Explicatio Vocum Anglicarum Etymologica ex propriis Fontibus scil ex Linguis duodecim Anglo-Saxonica seu Anglica prisca notata A. S. Runica Gothica Cimbrica seu Danica antiqua notata Run Dan. Franco-Theotisca seu Teutonica vetere notata Fr. Th. Danica recentiori notata Dan. rec Belgica notata Belg. Teutonica recentiori notata Teut. Cambro-Britannica notata C. Br. Franco-Gallica notata Fr. Italica notata It. Hispanica notata Hisp Latina notata Lat. Graeca notata Gr. Authore Stephano Skinner M.D. The Voyages and Travels of the Ambassadors sent by Frederick Duke of Holstein to the Great Duke of Muscovy and the King of Persia begun in the Year 1633. and finished in 1639. Containing a compleat History of Muscovy Tartary Persia and other adjacent Countries with several Publick Transactions reaching near the present Times In Seven Books Whereto are added the Travels of John Albert de Manstelslo a Gentleman belonging to the Ambassie from Persia into the East-Indies containing a particular Description of Indosthan the Mogull's Empire the Oriental Islands Japan China and the Revolutions which hapned in those Countries within these