that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent forasmuch as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 H. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcel of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3.16 a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet he confesseth that by their Writ they have power both to treat and to give Counsel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with us the Prelates Great men and Peers to treat and give your Counsel The Words of the Judges Writ are That you be present with Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have liberty in the upper House it self upon leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Judges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31 Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made Sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes there Sir John Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with him in giving Judgement But if by no Vote is meant He hath no Power to judge we despoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Vse is as in the conge d' eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told the Queen whereupon Sir Henry Knivet said It should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Woolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly He voucheth an Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Judicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of the Councel may mean the Kings Privy Councel or his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooveful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary
to the King are all but private men if they derive their Power from him they are Magistrates under him and out of his Presence for when he is in place they are but so many private men J. M. asks Who swears to a King unless the King on the other side be sworn to keep Gods Laws and the Laws of the Countrey We find that the Rulers of Israel took an Oath at the Coronation of Jehoash but we find no Oath taken by that King no not so much as to Gods Laws much less to the Laws of the Countrey XII A Tyrant is he who regarding neither Law nor the Common Good reigns only for himself and his Faction p. 19. In his Defence he expresseth himself thus He is a Tyrant who looks after only his own and not his Peoples profit Eth. l. 10. p. 189. 1. If it be Tyranny not to regard the Law then all Courts of Equity and Pardons for any Offences must be taken away there are far more Suits for relief against the Laws than there be for the observation of the Laws there can be no such Tyranny in the World as the Law if there were no Equity to abate the rigour of it Summum Jus is Summa Injuria if the Penalties and Forfeitures of all Laws should still be exacted by all Kings it would be found that the greatest Tyranny would be for a King to govern according to Law the Fines Penalties and Forfeitures of all Laws are due to the Supreme Power only and were they duly paid they would far exceed the Taxes in all places It is the chief happiness of a Kingdom and their chief Liberty not to be governed by the Laws Only 2. Not to regard the Common Good but to reign only for himself is the supposition of an impossibility in the judgment of Aristotle who teacheth us that the despotical Power cannot be preserved except the Servant or he in subjection be also preserved The truth of this strongly proves That it is in Nature impossible to have a Form of Government that can be for the destruction of a People as Tyranny is supposed if we will allow People to be governed we must grant they must in the first place be preserved or else they cannot be governed Kings have been and may be vitious men and the Government of one not so good as the Government of another yet it doth not follow that the Form of Government is or can be in its own nature ill because the Governour is so it is Anarchy or want of Government that can totally destroy a Nation We cannot find any such Government as Tyranny mentioned or named in Scripture or any word in the Hebrew Tongue to express it After such time as the Cities of Greece practised to shake off Monarchy then and not till then which was after Homer's time the name of Tyrant was taken up for a word of Disgrace for such men as by craft or Force wrested the Power of a City from a Multitude to one man only and not for the exercising but for the ill-obtaining of the Government but now every man that is but thought to govern ill or to be an ill man is presently termed a Tyrant and so judged by his Subjects Few remember the Prohibition Exod. 22.28 Thou shalt not revile the Gods nor curse the Ruler of thy People and fewer understand the reason of it Though we may not one judge another yet we may speak evil or revile one another in that which hath been lawfully judged and upon a Tryal wherein they have been heard and condemned this is not to judge but only to relate the judgment of the Ruler To speak evil or to revile a Supreme Judge cannot be without judging him who hath no Superiour on Earth to judge him and in that regard must always be presumed innocent though never so ill if he cannot lawfully be heard J.M. that will have it Tyranny in a King not to regard the Laws doth himself give as little Regard to them as any man where he reckons that Contesting for Priviledges Customs Forms and that old entanglement of Iniquity their gibrish Laws are the Badges of ancient Slavery Tenure p. 3. a Disputing Presidents Forms and Circumstances page 5. J.M. is also of opinion That If at any time our Fore-fathers out of baseness have lost any thing of their Right that ought not hurt us they might if they would promise Slavery for themselves for us certainly they could not who have always the same Right to free our selves that they had to give themselves to any man in Slavery This Doctrine well practised layeth all open to constant Anarchy Lastly If any desire to know what the liberty of the People is which J. M. pleads for he resolves us saying That he that takes away from the People the Right of Choosing what Form of Government they please takes away truly that in which all Liberty doth almost consist It is well said by J. M. that all liberty doth almost consist in Choosing their Form of Government for there is another liberty exercised by the People which he mentions not which is the liberty of the Peoples Choosing their Religion every man may be of any Religion or of no Religion Greece and Rome have been as famous for Polytheism or multitudes of gods as of Governours and imagining Aristocratie and Democratie in Heaven as on Earth OBSERVATIONS UPON H. Grotius DE JVRE BELLI PACIS IN most Questions of Weight and Difficulty concerning the Right of War or Peace or Supreme Power Grotius hath Recourse to the Law of Nature or of Nations or to the Primitive Will of those men who first joyned in Society It is necessary therefore a little to lay open the Variety or Contrariety in the Civil and Canon Law and in Grotius himself about the Law of Nature and Nations not with a Purpose to raise any Contention about Words or Phrases but with a Desire to reconcile or expound the Sense of different Terms Civilians Canonists Politicians and Divines are not a little perplexed in distinguishing between the Law of Nature and the Law of Nations about Jus Naturae and Jus Gentium there is much Dispute by such as handle the Original of Government and of Property and Community The Civil Law in one Text allows a threefold Division of Law into Jus Naturae Jus Gentium and Jus Civile But in another Text of the same Law we find only a twofold Division into Jus Civile and Jus Gentium This latter Division the Law takes from Gaius the former from Vlpian who will have Jus Naturale to be that which Nature hath taught all Creatures quod Natura omnia animalia docuit but for this he is confuted by Grotius Salmasius and others who restrain the Law of Nature only to men using Reason which makes it all one with the Law of Nations to which the Canon Law consents and saith That Jus Naturale est commune omnium Nationum That
be that the Government or the Governed may be divided an Example he gives of the Roman Empire which was divided into the East and West but whereas he saith Fieri potest c. It may be the People chusing a King may reserve some Actions to themselves and in others they may give full power to the King The Example he brings out of Plato of the Heraclides doth not prove it and it is to dream of such a Form of Government as never yet had name nor was ever found in any setled Kingdom nor cannot possibly be without strange Confusion If it were a thing so voluntary and at the pleasure of men when they were free to put themselves under Subjection why may they not as voluntarily leave Subjection when they please and be free again If they had a liberty to change their Natural Freedom into a voluntary Subjection there is stronger reason that they may change their voluntary Subjection into natural Freedom since it is as lawful for men to alter their Wills as their Judgments Certainly it was a rare felicity that all the men in the World at one instant of time should agree together in one mind to change the Natural Community of all things into private Dominion for without such an unanimous Consent it was not possible for Community to be altered for if but one man in the World had dissented the Alteration had been unjust because that Man by the Law of Nature had a Right to the common Use of all things in the World so that to have given a propriety of any one thing to any other had been to have robbed him of his Right to the common Use of all things And of this Judgment the Jesuit Lud. Molina seems to be in his Book De Justitia where he saith Si aliquis de cohabitantibus c. If one of the Neighbours will not give his Consent to it the Commonwealth should have no Authority over him because then every other man hath no Right or Authority over him and therefore can they not give Authority to the Commonwealth over him If our first Parents or some other of our Forefathers did voluntarily bring in Propriety of Goods and Subjection to Governours and it were in their power either to bring them in or not or having brought them in to alter their minds and restore them to their first condition of Community and Liberty what reason can there be alledged that men that now live should not have the same power So that if any one man in the World be he never so mean or base will but alter his Will and say he will resume his Natural Right to Community and be restored unto his Natural Liberty and consequently take what he please and do what he list who can say that such a man doth more than by Right he may And then it will be lawful for every man when he please to dissolve all Government and destroy all Property VVhereas Grotius saith That by the Law of Nature all things were at first Common and yet teacheth That after Propriety was brought in it was against the Law of Nature to use Community he doth thereby not only make the Law of Nature changeable which he saith God cannot do but he also makes the Law of Nature contrary to it self OBSERVATIONS UPON Mr. HVNTON'S Treatise of Monarchy OR THE ANARCHY Of a Limited or Mixed Monarchy THese Observations on the Treatise of Monarchy written by Mr. Hunton being of like Argument with the former are here annexed with this Advertisement That the Treatise it self consists of two Parts the first concerning Monarchy in general the latter concerning this particular Monarchy and is seconded with a Vindication which alledgeth new matter about the nature kinds causes and means of Limitation in Government intimating a mistrust that the Treatise had not fully or sufficiently discovered these Points These Observations reach only to the first Part of the Treatise concerning Monarchy in general Whether it can possibly be Limited or Mixed If this be not made good it is but vain labour to trouble the Reader with the dispute about the nature kinds and causes of that which is not nor cannot at all be or to handle the Hypothesis about this particular Monarchy for which the prime and chief Arguments are of no greater Antiquity than some Concessions since these present Troubles The ancient Doctrine of Government in these later days hath been strangely refined by the Romanists and wonderfully improved since the Reformation especially in point of Monarchy by an Opinion That the People have Originally a power to create several sorts of Monarchy and to limit and compound them at their pleasure The consideration hereof caused me to scruple the modern Piece of Politicks touching Limited and Mixed Monarchy and finding it only presented us by this Author I have drawn these few Observations upon the most considerable part of his Treatise desiring to receive satisfaction from the Author or any other for him The Novelty of this Point challengeth a modest Debate the rather for that the Treatise acknowledgeth that not only Monarchy but also Aristocracy and Democracy may be either Simple or Mixed of two or all three together though it do not determine whether they can be Absolute or Limited THE PREFACE WE do but flatter our selves if we hope ever to be governed without an Arbitrary Power No we mistake the Question is not Whether there shall be an Arbitrary Power but the only point is Who shall have that Arbitrary Power whether one man or many There never was nor ever can be any People governed without a Power of making Laws and every Power of making Laws must be Arbitrary For to make a Law according to Law is Contradictio in adjecto It is generally confessed That in a Democracy the Supreme or Arbitrary Power of making Laws is in a Multitude and so in an Aristocracy the like Legislative or Arbitrary Power is in a few or in the Nobility And therefore by a necessary Consequence in a Monarchy the same Legislative Power must be in one according to the Rule of Aristotle who saith Government is in One or in a Few or in Many This ancient Doctrine of Government in these latter days hath been strangely refined by the Romanists and wonderfully improved since the Reformation especially in point of Monarchy by an Opinion That the People have Originally a Power to create several sorts of Monarchy to limit and compound them with other Forms of Government at their pleasure As for this natural Power of the People they find neither Scripture Reason or Practice to justifie it For though several Kingdoms have several and distinct Laws one from another yet that doth not make several sorts of Monarchy Nor doth the difference of obtaining the Supreme Power whether by Conquest Election Succession or by any other way make different sorts of Government It is the difference only of the Authors of the Laws and not of the Laws
might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and leave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Vlpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws 9. If the Nature of Laws be advisedly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior Power Laws are divided as Bellarmine divides the Word of God into written and unwritten not for that it is not written at all but because it was not written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered that for every Custom there was a time when it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands of Kings at first unwritten Nor must we think the Common Customs which are the Principles of the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivered by Moses there be only certain Principal Laws which did not determine but only direct the High-priest or Magistrate whose Judgment in special Cases did determine what the General Law intended It is so with the Common Law for when there is no perfect Rule Judges do resort to those Principles or Common-Law Axiomes whereupon former Judgments in Cases somewhat like have been delivered by former Judges who all receive Authority from the King in his Right and Name to give Sentence according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where there have been Presidents to direct they upon better Reason only have changed the Law both in Causes Criminal and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their Reasons thence it is that some Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellour Egerton proves by several Instances Nor is this spoken to derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles written and established for witness to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law speaks in General and something falls out after besides the General Rule Then it is fit that what the Law maker hath omitted or where he hath erred by speaking generally it should be corrected or supplied as if the Law-maker himself were present to Ordain it The Governour whether he be one Man or more ought to be Lord over all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot determine it leaves to the Governours to give Judgment therein and permits them to rectify whatsoever upon Tryal thy find to be better than the Written Laws Besids all Laws are of themselves dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the Truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still representatively present in all Courts the Judges are but substituted and called the King's Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if he were able since by virtue of his Oath he is bound to it therefore the King ought to exercise Power as the Vicar or Minister of God But if our Lord the King be not able to determine every Cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise-Men fearing God c. and make Justices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by John Briton Bishop of Hereford We will saith he that Our own Jurisdiction be above all the Jurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions personal or real We have Power to yield such Judgements as do appertain without other Process wheresoever we know the Right Truth as Judges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by
3d Rich. 2. the three Henries 4 5 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earls and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the King's Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edw. 1. made at his first Parliament General by his Council and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the King's Council forasmuch as all the King's Council as well Justices as others did agree that they should be put in writing and observed The Statute of Acton Bunnel saith The King for Himself and by His Council hath Ordaind and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and his Council do not intend by reason of this Statute to diminish the King's Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the King's Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and ordained by the King himself and all his Council The Statute made at York 9. Edw. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his People by the assent of his Prelates Earls Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earls Barons and other Great Men assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King's Privy-Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the King's Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the King's Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the King's Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28 Hen. 6. The Commons made Suit That William de la Poole D. of Suffolk should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Judges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was reassembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of
Prison by Privilege of Parliament upon the Judges Answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the King's Name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Cases There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the Advice and Counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS Apud Selden 21 Edw. 3. fol. 60. Apud Selden Selden Selden Selden Selden Selden Cambden Cotton Stow. Selden Selden Selden Selden Chanc. Egerton * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. lib. 3. c. 8. Lib. 2. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. c. 11. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 8. c. 12. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 31.5 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 5. (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 4. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 4. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. c. c. 13. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 7. Lib. 3. c. 9. Lib. 3. c. 11. Lib. 6. c. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 7. c. 9. Lib. 2. c. 8. (a) L. 3. c. 7. (b) L. 4. c. 10. (c) L. 3. c. 6. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Cive cap. 1. sect 10. 94. 87. Lib. 4. c. 8. Lib. 1. c. 4. P. 3. P. 13. P. 6. P. 1. P. 12. P. 5. P. 40. P. 12. P. 14. P. 16. P. 15. P. 17. P. 5. P. 2. P. 6. P. 12. P. 7. P. 54. P. 7. P. 1. P. 12. P. 13. P. 8. P. 16. P. 17. P. 14. P. 17. P. 49. P. 17. P. 18. P. 38. P. 18. P. 25. P. 56. P. 25. P. 26. P. 38. P. 26. P. 28. Arist. Pol. l. 3. c. 16. Cap. 1. Lib. 1. Cap. 2. Cap. 2. Cap. 2. Cap. 2. Lib. 2. Qu. 4. Cap. 12. Lib. 5. Sect. 18. Cap. 1. Sect. 4. Cap. 4. Sect. 1. Lib. 2. Cap. 5. Cap. 7. Cap. 7. Sect. 1. Cap. 7. Sect. 2. Chap. 7. Sect. 1. Chap. 7. Sect. 1. Lib. 2. Cap. 2. Cap. 7. Sect. 2. Ainsworth upon Deut. 18. 1 King 20.16 Gen. 27.29 Arist Pol. Lib. 1. c. 2.