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 Chancellor of the Exchequer Judges of his Courts at Westminster Justices in
correct the Vitious so they should begin the Reformation at home Chilon's (c) Laertius in vita Chilonis Brother desiring to know why he was not chosen at Sparta as well as Chilon he answered that he knew how to bear an Injury which his Brother did not for in Publick imployments those who are the Censores morum and chastise the Infringers of the Laws must expect Calumnies and evil Entreaties from the incorrigible and debauched and such must be resolved to perform their duty without any other by-end of Revenge Tyranny and Imperiousness on the one hand or hasty rast Cholerickness Partiality or Corruptness on the other Plato (d) Lib. 4. de LL. adviseth that the wealthiest be chosen for the better support of the Dignity but withall that they be such as are exemplary in obeying the Laws For none are more fit to serve their Prince and profit the Subjects than such as are obedient to the Laws which when they make a rule of their own Actions they will be sure to exact it of others It is great disparagement to a Prince to chuse men of vitious or uncommendable lives or such as have not worth and honour to commend them So the Princes of Europe think the Grand Seignior not so well served by Slaves nor was it so commendable in the Roman Emperors to make their Freemen of greater Power with them in the managery of greater affairs than Consuls or Senators which made (e) Praecipuum indicium non magni Principis magni Liberti Panaegyr Pliny say It was the principal sign of a Prince not great where the Freemen were great The Prince cannot be presumed to chuse his Magistrates by his own knowledge of their abilities and fitness for their several Imployments but must trust such as are about him therefore it becomes them well to know the qualifications of such as are to bear Office for the Rule of Tacitus (f) Melius officiis administrationibus non peccaturos praeficere quam damnare cum peâ—â—arint Vita Agricolae is to be observed That it is better not to prefer to Offices and Administrations such as will transgress than to condemn them who have transgressed CHAP. XXXIII Of the Soveraigns appointing Judges Courts of Justice and other Officers HAving treated in the last Chapters of such as have a general inspection into and by the Soveraigns Election and placing them a power of advising at least how the whole frame of Government is to be disposed as both Prince and People may be happy I come now more particularly to the Ministerial Officers of Justice such as are the Lord Chancellor or Keeper Lord Treasurer the two Lord Chief Justices and the rest of the Judges whether they be the Judges at Westminster or those of Assises Oyer and Terminer to try Causes in their respective Circuits I undertake this Task Lugduni tanquam Rhetor dicturns ad Aram The Author's Apology or one that procul profanus adorat The Subject being only fit to be handled by such as have read and digested the whole Body of the Laws and are eminent in the Profession of them whereas I must own my self to have tasted only so much of that Ornamental and most useful Study as may quicken a dull and languid Appetite to praise or rather admire it than that I can hope to benefit the judicious Reader by an imperfect Description of their Calling and Office who by the Sovereign are appointed to be the Oracles of the Law and the Ministers of his Justice whose great Wisdom and Knowledge all ought to reverence But as they make so great a Figure in the Government I could not omit them though it be but to salute the Skirts and hold up the Train of their Scarlet Robes SECT 1. IN Edward the Elders Days those that gave Judgment under the King King Edward the Elder 's Law about Judges Gerefa had the name Gerefa under which name Aldermen Earls Presidents Prefects Governours c. were comprehended From whence with the Germans the word Grave is used for an Earl President Judge c. and our Sheriff is from Scyre gerev Raeve or Graeve of the Shire The Charge in that Kings Laws runs thus (a) Eadweard Cyning vyt thaem Gerefum eallum that gede man swa ribte domas swa gerihtoste cunnon hit on thaere dombec stande ne wandigeth for nanum thingum folcrihte to gerecanne c. Eadward the King wills that all his Graeves give so right Judgment as they can most Righteously as it stands in their Judgment Book that is as we may suppose in the written Laws fearing for no thing or cause to declare or pronounce Right or Justice to the People The which publishing of Justice they shall appoint at certain times or Terms when they will perform it and declare the same So that in this seems to be comprehended what is more at large in the Oath of a Judge in After-Ages We must principally consider that the King is the Fountain and original of all Justice in his Kingdom The King is the Fountain of Justice therefore Bracton (b) Lib. 3. cap. 9 10. Rex non alius debet judicare si solas ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus sicut Dei Vicartus Minister in terra saith That the King and not another ought to judge if he alone were sufficient to do it being bound by his Oath to it therefore the King ought to exercise the Power of the Law as Gods Vicar But if our Lord the King be not sufficient to determine all Causes that the Burthen may be lighter divided among several Persons he ought to chuse Men wise and fearing God See Britton fol. 1. Coke 4. Inst c. 7. and appoint them Justiciaries Yet this surrogating of Judges in the Kings respective Courts doth not divest the King of his Power for as the same (c) Rex habet ordinariam Jurisdictionem omnia Jura manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipso Rege Bracton saith The King hath ordinary Jurisdiction and all Laws are in his Hands which cannot be so delegated but that they remain with the King From which and other Authorities Mr. Lambard saith (d) Archaion That the Courts derive their Powers from the Crown their original and drawing by one and one as it were so many Roses from the Garland of the Prince leave nevertheless the Garland it self undespoiled of the Sovereigns Vertue in the Administration of Justice Therefore saith Sir Edward (e) Tit. Discontinue de Proces part 7. 30. Coke By the Common Law all Pleas were discontinued by the Death of the King and Process awarded and not returned before his Death was lost For by the Death of the King not only the Justices of both the Benches and the Barons of the Exchequer but Sheriffs also and Escheators and all Commissions of
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-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
(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
by whose Council and Advice the Kings used in the making Laws are the Witan Wites From Wita which Womner renders Optimas Princeps Sapiens a Nobleman Prince or Wiseman from witan to know and understand So in the Laws of King Ina we read Gethungenes Witan a famous noble or renowned Wite from Gethungen So in the version of Bede by King Alfred Witum is rendred Counsellors so by Sapientes when we meet with it in any Authors that render Witan by it we are to understand not only Judges but sometimes Dukes Earls Prapositi Provosts Thegns the King's Officers or Ministers So in the Charter (i) Histor Privileg Eccl. Eliensis fol. 117. b. of King Edgar to the Church of Ely Anno 970. Alferre Egelwinc and Brithnoth are called Dukes and Hringulph Thurferth and Alfric are called Ministri The first of which in another Charter is called Alderman and the other by the name of Sapientes Upon perusal and collating several Transcripts of Deeds and Councils I am of opinion that where Wites or Sapientes are used for Princes Noblemen and great Personages those are to be understood that were called to the Kings Council had command over Countries as Lord Lieutenants or were Members of the great Councils So that they were of the most wise and knowing of the great Princes Dukes Earls and Barons and where it doth not seem to import such great Men of Birth then it signifies Judges Which as to the first seems to be clear by what is said in the Auctuary (k) Lamb. fol. 147. tit de Heretochiis Qui Heretoches â—pud Angloâ—voâ—abantur se Barones Nobiles insignes sapientes vocati ductores excercituum c. to the 35 Law of Edward the Confessor where it is said There were other Powers and Dignities appointed through the Provinces and all the Countries and several Shires which are called by the English Heretoches in King Ina's Laws Here Thegne i. e. Noble Ministers or Officers and when he reckons up those who were to be understood by this name Heretoges he calls them Barons Nobles and famous Wisemen called Generals or great Officers in the Army and as to the latter Signification Doctor Brady hath sufficiently cleared it in Adelnoth's Plea against the Monks of Malmsbury where it is said that in the Presence of the King subtili disceptatione a Sapientibus suis i. e. Regis audita where by Sapientes must be understood the King's Judges Alderman Alderman or Ealderman was both a general Name (l) Spelman 's Glossary given to Princes Dukes Governours of Provinces Presidents Senators and even to Vice-Roys as also to particular Officers hence Aldermannus totius Angliae like my Lord chief-Chief-Justice Aldermannus Regis Comitatus Civitatis Burgi Castelli Hundredi c. of whose Offices it is not easy particularly to define This being so copiously discoursed of by Sir Henry Spelman I shall refer the Reader to him The word Thane or Thegen was used by the Saxons in their Books variously sometimes it signified a stout Man Thane Soldier or Knight other times Thanus (m) Cyninges Thegen Med mera Thegen Woruld Thegen Maesse Thegen Somner Dial. Regius signified the Kings great Officer a Nobleman or Peer of the Realm other times a Thane or Nobleman of lower degree sometimes we meet with secular or Lay Thanes other times Spiritual Thanes or Priests Some Thanes were as the King's Bailiffs Praefects Reeves of which Doctor Brady gives account in his Argum. Antinorm Page 283. In several of the Councils we find no particular orders denominated but only a division of the whole into the Clergy Clergy and Laity and Laity So in the Council that Sir H. Spelman (n) Spelm. 1. Tom. Concil tells us Ethelbert King of Kent held 685. with Bertha his Queen and Eadbald his Son and the Reverend Bishop Austine Communi concilio tam Cleri quam Populi and the rest of the Optimates Terrae at Christmass having called a Common-Council of the Clergy and People by which it is apparent that both the Clergy o and Laity there understood are comprehended under the name Optimates Terrae the Nobility of Land So in King Ina's Laws as I shall hereafter particularize the command is given to Godes Theowas Gods Servant and eales folces all People So King Edmund held a great Council at Easter in London of Gods (p) Egther ge godcundra hada ge woruld cundra Order and the Secular Order or Worlds Order which Brompton (q) Mandavit omnibus Majoribus Regnorum veniunt Wintoniam Clerus Populus renders Laici in another part of King Edward's Laws So the Majores Regnorum of King Edgar are commanded to come and then it is said There came to Winchester the Clergy and People those were the Majores Regnorum The like was frequently used after the Conquest so at the Coronation of Henry the First Matthew Paris speaks of the gathering of the Clergy and all the People and then saith Clero Angliae Populo universo The Clergy answering him and all the Magnates and in another place Clero Populo favente the Clergy and People favouring Further we find in a great Council held by the King Anno 1102. 2 H. 2. (r) Omnes Principes Regni sui Ecclesiastici secularis ordinis Flo. Wigor fol. 651. lin 21. all the chief Men of his Kingdom of the Ecclesiastic and secular Order So that Plebs Populus Vulgus Incola where by way of Antithesis or contra-Opposition they are used do signify the Clergy and Laity or Lay-Princes not the common People After the Conquest we meet with the Word Regnum sometimes and other times Regnum Sacerdotium As to the first the Sence is to be understood best in the Quadripartite History (s) Quadrilog lib. 1. c. 26. of the Life of Thomas Becket where it is said the King called to Clarendon Regnum universum all the Kingdom and then saith To whom came the dignified Clergy and the Nobles which Matt. Paris puts out of all doubt by the enumeration that he makes of all that appertained to the Kingdom to be the Arch-Bishops Bishops Abbats and Priors Installed and the Earls and Barons So the meaning is best understood of the words in the last Chapter of Magna Charta that the Arch-Bishops Bishops Abbats Priors Earls Barons Knights and free Tenents and all of the Kingdom gave a fifteenth part of their Moveables and in other places after the Barons it is said Omnes alii de Regno nostro qui de nobis tenent in Capite concerning which the most Learned Doctor Brady hath given plentiful Proofs Magnates Proceres By the words Magnates Proceres frequently found in the Councils after the Conquest are to be understood the Arch-Bishops Bishops Abbats and Priors for the Clergy and the Earls and Barons for the Laity only unless afterwards that Dukes were included However they were used always to contra-distinguish
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipâ—â— Rex dignaâ—us est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ— fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâ—tyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um habeanâ— Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— bien des Granders comâ— des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
Regni nostri de Concilio nostro existentium providimus statuimus ordinavimus which (i) Pulton fol. 35. Anno 1279. 14. Nov. 7 E. 1. Pulton renders by the Advice of our Prelates Earls Barons and Subjects of our Kingdom being of our Council the King hath provided made and ordained whereas by Fideles is to be understood the Tenents in Capite The Statute of Acton Burnel or Statute Merchant 11 E. 1. according to Tottel was made by the (k) Ce Roy per luy per tout son Counsel ad ordain establâ—e Tottel fol. 49. 82. King himself and his whole Council That this was done in Parliament appears by the Statute of Merchants made in the 13th of the same King wherein it is said Our Lord the King by himself and by his Council at his (l) A son Parliament quâ—il â—â—â—â—t a Acton-Burnel c. Parliament which he held at Acton Burnel 11 Regni made and ordained these Establishments or as (m) Pulton fol. 36. Pulton hath it The King caused the Statute made by the King and his Council at Acton Burnel to be rehearsed and hath ordained and established Since the 49 of H. 3. to the 18 of Ed. 1. we find (n) Râ—t Pat. 20 E. 1. m. 15. no Writs for summoning of Knights Citizens and Burgesses but the 14 of June 18 Ed. 1. The King issued out the following Summons Rex c. The Form of Summons of Knights Citizens and Burgesses renewed at the Petition of the Nobles Two or three Knights to be chosen cum per Comites Barones quosdam alios de Proceribus Regni nostri nuper fuissemus super quibusdam specialiter requisiti tam cum ipsis quam cum aliis de communitatibus Regni illius colloquium habere volumus tractatum c. Tibi praecipimus quod duos vel tres de discretioribus ad laborandum potentioribus Militibus de Comitatu praedicto sine dilatione eligi eos ad nos c. venire facias c. cum plena potestate pro se communitate Comitatus praedicti ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti tum duxerint concordanda vel concorditer ordinaverint in praemissis The English of which is Whereas we have been especially petitioned and requested by the Earls Barons and others of the great Men of our Kingdom concerning certain matters upon which we will have Conference and treat as well with themselves as with others of the Counties of that Kingdom We command thee that without delay thou makest to be chosen two or three of the most discreet and ablest Knights for dispatch of business of the Counties aforesaid and cause them to come to us c. with full Power for themselves and the whole Community of the County aforesaid to consult and consent for themselves and that Community to such things which the Earls Barons and great Men aforesaid shall think fit to agree upon From this we may observe That by Vertue of this Writ No Citizens and Burgesses but only Knights for Counties no Citizens or Burgesses could be chosen or sent to Parliament But only Knights for Counties Secondly The Scutage was granted in this Parliament as Doctor Brady hath noted fourteen days before the Writ for Election of Knights issued out and it is (o) Tottel's Stat. p. 85. apparent That the Statute of Westminster the Third was made the Eighth of July which was a week before they were to appear and consequently was made without them for the Preamble runs Dominus Rex in Parliamento suo apud Westmonasterium post Pascham Anno Regni sui 18. viz. in quindena S. Johannis Baptistae i.e. 8 July ad instantium Magnatum Regni sui concessit providit statuit From this Writ and the Variation of the following Writs and other Records the judicious Doctor Brady (p) Answer to Petyt fol. 151. notes That it was from the Kings Authority and at this time that the House of Commons came to be fixed and established in the present constant form it now is and hath been for many Kings Reigns and it doth appear that King Edward the First was not altogether confined to any certain number of Knights Citizens or Burgesses nor were several strict forms and usages now practised ever then thought of or some legal Niceties or Punctilioes now in use then judged of absolute Necessity The Statute of Quo (q) Pulton An. 1290. fol. 58. Warranto in the Eighteenth Year of Edward the First saith that the King of his special Grace and for the affection he beareth to his Prelates Earls and Barons and others of his Realm hath granted c. The Statute de (r) Idem Anno 1293. fol. 61. Malefactoribus in Parcis in the Twenty first Year of Edward the First saith Our Lord the King at his Parliament c. at the instance of the Nobles of the Realm hath granted c. Anno 1294. the King issues out his (s) Cl. 22 E. 1. m. 6. dorso Four Knights for a County Writs to cause two Knights out of every County to be chosen c. Dated the Eighteenth of October and the next day issues out Writs for other two to be chosen to meet at the same time and place Out of Mr. Ryley's (t) Fol. 241. Placita Parliamentorum it is clear that the Parliament which met on the Octaves of St. * Claus 28 E. 1. m. 3. dorso Hilary or the Twentieth of January in the Twenty eighth Year of Edward the First sate but eight days the Writ for the Commons Expences bearing date January the Thirtieth of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated February the twelfth next following after the Commons had been dismissed fourteen days so that the Barons still continued to stile themselves the Community of England The Barons stay after the Commons dismissed and both Spiritual and Temporal Barons and others of the King's Council did stay and dispatch much Business after all others were dismissed as further appears in a (u) See Brady's Answer to Petyt fol. 152. Proclamation 21 March 33 Ed. 1. Wherein the King gives the Archbishops Bishops and other Prelates Earls and Barons Knights of Counties Citizens and Burgesses and other Persons of the Commons which by our Lord the King's Command came to this Parliament many Thanks for their coming and willeth that at present they return into their Counties so as they readily and without delay do come again at the time when they shall be remanded except the Bishops (w) Sauve les Evesques Countes Barons Justices autres qui sont du Conseil nostre Seigneur le Roy que ceux ne sen allient saunz especial conge du Roy. The King's Council prepare Laws Earls and
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hâ—â— idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
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
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
procure the Subscriptions and then tender them as it were by their number to affright the King to a Compliance or that the King to whom the Execution of the Laws or suspension in some measure surely appertains might not forbid such Petitions They singled out Sir Francis North then Lord Chief Justice of the Common-Pleas after Lord Keeper and Earl of Guilford Sir George Jefferies then Recorder of London now Lord Chancellor Mr. Justice Withins and others as Subjects of their displeasure for disliking and abhorring the irregular dangerous way of Petitioning But they received more Lustre and Regard in the Eyes of their Soveraign and all Loyal Subjects by their Censure than they did discredit by it It seems worth the while for Persons that have regard to the quiet and repose of the Subject to the Honour and Establishment of the Government and for the Tranquillity and Liberty of their Posterity to consider whether any mortal Man can either produce Precedent or Law to justify the Imprisonment of those Gentlemen Abhorrers of which I have spoken something before in the Chapter of Parliaments I shall now conclude with the last and formidablest sign of Sedition Of Tumults viz. Tumults which are but unarmed and Pen-feathered Rebellion They have the Mien and Standard of it only want the Artillery The fatal black Parliament disciplined them to be ready at any watch word and whatever they voted against the King or Church was ushered in by thousands of all sorts flocking out of the City and Country braving and threatning all along as they went by White-Hall and so in Sholes crowding to the Houses promising to stand by them and crying out for Justice They were so insolent and rude that they forced the Merciful King to withdraw from his Pallace to which he never returned till they brought him to his Barbarous Tryal and Murther That Blessed Kings Sence of them can be expressed by none so emphatically as by himself therefore I shall extract some of his feeling Expressions I (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 4. never thought any thing except our Sins more ominously presaging all those mischiefs which have followed than these Tumults And this was not a short Fitt or two of an Ague but a quotidian Feaver always encreasing to higher Inflammation impatient of any Mitigation restraint or remission Those who had most mind to bring forth Confusion and Ruin upon Church and State used the Midwifery of Tumults by which they ripped up with barbarous Cruelty and forcibly cut out abortive Votes to crowd in by force what reason would not lead Some Mens Petulancy was such as they joyed to see their Betters shamefully and outragiously abused So the Blessed King finding they invaded the Honour and Freedom of the two Houses and used such contemptuous words and Actions against him thought himself not bound by his Presence to provoke them to higher Contempt and Boldness For he saith it was an hardiness beyond Valour to set himself against the breaking in of the Sea being daily baited with Tumults he knew not whether their Fury and Discontent might not fly so high as to worry him and tear him to pieces whom as yet they played but with in their Paws Therefore thinks himself not bound to prostitute the Majesty of his Place and Person c. to those who insult most when they have Objects and opportunity most capable of their rudeness and petulancy Our late gracious Sovereign in later times when some Men were endeavouring to practise the same Methods found some offers of the like at Windsor a place of all others in which one would have thought he should have had the most Honour for the Benefits he did to that Town by his so frequent residence when first the Boys and then the Rabble were set on to shout for a Burgess of Parliament in opposition to a Loyal Person His Majesty favoured even in his own Presence The Prophetick Observation of the Martyred King is worth noting That he believes the just Avenger of all Disorders will in time make these Men and that City see their Sin in the Glass of their Punishment which needs no application but only to desire they would be so just to themselves and their Posterity as to follow no such Precedents and that none will encourage such outragious doings I shall dismiss this ingrateful Subject with the Description (y) Vâ—â—ibus truculentis strepere rursum viso Casare trepidare Murmur incertum atrox clamor repente quies diversis animorum moribus pavebaret terrebaâ—â— 1. Annal. Tacitus gives of the mutinous Tumult of Drusus's Soldiers That the Ring-Leaders when they looked to the multitude with outragious Voices made terrible noises but viewing Caesar shrunk again and of the whole multitude he saith an uncertain Murmur an horrible cry and suddenly a calm by divers emotions of Mind they feared and did affright CHAP. XLIV Prognosticks of Sedition and Faction BOdinus (a) Seditio semel accunsa quasi scantilla impetu populari repente agitatur ac totum prius inflammari solet quam extingui possit De Repub. c. 4. tells us That Sedition once kindled is suddenly fanned and blown by popular fury into a Flame which is wont to set all on Fire ere it can be extinguished The danger therefore of Faction is not to be sleighted but the Government should be watchful over the least Sparks which no Man can forbid or tell whence they may come or how far they may ravage when there is a Propensity to Faction Therefore Governours should not suffer matter of Trouble to be prepared or hatched but crush the Cockatrice in the Egg and the Monster in the Embryo especially (b) Vbi Respublica aegra quave vix cicatrices clade intestina acceptas obduxerit Clapm. de Arcanis dominationis lib. 3. c. 16. When Danger less when the Scars of late Wounds are not healed or hardned as after a Civil War when Factions are most dangerous The danger is less saith my Lord (c) Essays St. Albans when it springs only from the Discontent of the People being slow of Motion and the greater sort of small Strength without the Multitude can do little but the danger is greatest when those of higher Rank wait but for the troubling of the Waters So Jupiter by Pallas's Advice when the other Gods would have bound him sent for Briarous with his Hundred Hands an Emblem to show how safe it is for Monarchs to make sure of the Good Will of their People The motions of the greatest Persons in Government ought to be as the motion of the Planets under the Primum Mobile according to the old Opinion that every of them is carried swiftly by the highest Motion and slowly by its own Therefore when great Men in their own particular motion move violently Liberi usque ut Imperantium meminissent as Tacitus speaks It is a sign the Orbs are out of Frame Where Factions are not Combinations against the Government
fifth when the Multitude rule by majority of Voices and not the Law so that their temporary Votes were Law We have resemblance of these kinds of Governments in our Corporations Concerning the Democracies in Corporations where in the Elections of Magistrates in some places all Freemen in others those only who have Burgage Land in others a Common-Council solely have Vote and the whole Body or such and such parts have Power to make By-laws If we had no other Argument against Democracy but this that it is of that narrow capacity that it cannot be adapted to order Regions of large extent it would be sufficient to discredit it for we find in those incorporated little Democracies there are more Factions and divisions than in the whole large adjoining tracts of Land about them though the Villages contain a much numerouser People It is rarely found but that in all Votes relating to the public Combinations are made by Kindreds Companies or Factions The inferior sort having equal Vote often out-number the Richer and Wiser and so businesses are aukwardly or tumultuarily determin'd and the meaner People must either neglect their domestic affairs to attend frequent Conventions or leave the managery to a stirring factious Party which is (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 5. contrary to the fundamental equality and freedom they labour for As these Corporations were first created by the Sovereigns Grace and Favour for the encrease of Trade and enriching the places and administration of Justice so while they keep themselves within the bounds of their Duties are Loyal to their Prince and Faithful to the Government and presume not by their Pragmaticalness to dispose of the Fate of the Empire or by their factious Elections to make disturbances It is very necessary they should enjoy all their municipal Priviledges But so many Corporations having of late acted contrary it is no wonder that the late King upon solid reason of State issued out his Quo Warranto's against them and in all the new Charters reserv'd a Power in the Crown of displacing the Evil Magistrates at pleasure But to leave this to another place I shall note out of the Philosopher such Arguments as he useth against Democracy 1. Argument against Democracy Injustice As first that the common People being the greater number and the Soveraignty being supposed to be in the whole complex Body whatever they approve must be establish'd as a Right and Law (l) Vbi plebs est domina necesse est ut quod plurimis visum sit hoc quoque sit ratum hoc sit jus Polit. l. 6. c. 2. and suppose they vote a Dividend of the richer Citizens Estates among themselves though this by the force of their Government be just yet in its own nature it is great Injustice to destroy the rich Man's Propriety as well as it were for the Rich to do the same to the Poor 2dly 2. Against the Common Peoples Liberty of Elections Liberty being the principle of all Democratical Government it consists in two things either to live (m) Plerisque jucundius est licenter vivere quam modeste Ib. c. 2. licentiously which in Athens and other places was very fatal and as Demosthenes Isocrates and Cicero complain that under the specious pretence of Liberty even Anarchy prevail'd Or Secondly in the free and uncontroulable Power of chusing their Magistrates and this accasioned the contest of parties for Victory hence Crowds Tumults Routs Riots Frays and Quarrells and after all Heart-burnings (n) In Licurg Vide Giphanii Com. in c. 7. l. 2. Polit. Arist Plutarch gives us an account of the manner of some Elections for Senators that certain Persons being closed in a Room where they might hear the peoples Voices but not see the People One Competitor after another was proposed and him who was judged to have most Voices they carried Crowned to the Temples of the Gods Women and Children following him with Shouts This (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. Polit. c. 9. Aristotle calls a Childish action in so grave an affair it being not fit for any to seek Magistracy in such a way that by the judgment of the Multitude only is thought fit to Rule but (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. he that is worthy be he willing or unwilling should have the place Therefore we observe where the King hath the sole Power of nominating Judges Sheriffs Justices of Peace c. though they are of as great advantage to the Peace and order of the Government as Mayors Sheriffs or Common-Council Men of Corporations there are neither Hubbubs or Quarrels at their Elections and they are generally better qualified than such as court the peoples Favour Therefore (q) Rempublicam perituram in qua viri Principes consultant Populus vero imperita plebecula decernit Laertius exclaims justly that the Common-weal must perish in which the Nobility consult but the People and unskillful common Rabble give Judgment 3dly 3. Their Faction In this Government there is a continual spawning of Faction So it is (r) Giphanii Comment in lib. 5. c. 5. Polit. observ'd that at Athens the Democratical Government mostly obtain'd yet in the Attick State there were no less than three Factions according to the tripartite division of the People viz. the Diacrii that inhabited the mountainous Parts who were for pure Democracy the Pediaci who inhabited the lower Grounds and they were for a mixture of Oligarchy and the Parulii or Inhabitants on the Sea-Coasts and those were a mixture of both which Aristotle calls the Politick Hence Pisistratus appearing an Enemy to the Pediaci made himself gracious with the People and so easily got the Government So he instanceth in the changes of those of Milesia by the Prytania which was like a Consulship or Dictatorship at â—â—me So he gives an account of Dionysius feigning himself to be wounded by the Nobility who hated him for his love to the People raised a great Envy and Rage of the People against them and so established himself So Theagenes by slaying the Cattle of the Nobility animated the People of Maegara to follow him till by suppressing the Nobility and Richer he got himself to be Master of all The like we may read in (s) Lib. 13. c. 9. Diodorus Siculus that Agathocles did at Syracuse All which Changes were the Issues of Factions betwixt the Nobility and Common-people which is as inseparable from this sort of Government as the Prickle is from the Thistle or the Husk from the Corn. Fourthly The Philosopher notes That in this Government the Demagogues were most used These indeed were the Bell-wethers of Faction the Conductors of the Peoples Wills and Affections by the power of their Popularness The (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. l. 4. c. 4. Philosopher tells us there was no use of them where the Law commanded but where Matters were judged by the Decrees of the
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
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
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
Council and the Optimates witnessing are Cynedrid the Queen three Bishops one Abbot and Brorda Wiega Cuthbert Eobing Esne Cydda Winbert Heardbert and Brorda Dukes besides Ethelbeard Archbishop Forthred Abbat and Sighore Son of Siger But I shall hereafter more copiously give an Account of the constituent Parts of the great Councils The King the Fountain of Laws The Legislative Power saith a learned (h) Sheringham's Supremacy p. 34. Leges vero Anglicanae consuetudines Regum Authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores Bracton lib. 1. c. 2. Author belongs to the King alone by the Common Law for though the two Houses have Authority granted them by the King to assent or dissent yet the Power that makes it a Law the Authority that animates it and makes it differ from a dead Letter is in the King who is the Life and Soul of the Law by whose Authority alone the Laws command forbid vindicate and punish Transgressors This was resolved by divers Earls and Barons and by all the Justices in the Reign of King Edward the Third for one (i) Fuit dit que le Roy sist les Leis per assent des Peres de la Commune non pas les Peres le Commune qu'il ne avera nul Pere en sa terre demesne que le Roy per eux ne doit estre ajuge 22 E. 3. c. 1. Haedlow and his Wife having a Controversie with the King and desiring to have it decided in Parliament It was resolved That the King makes Laws by the Assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own Land and could not be judged by them This is further manifested that the Laws are primarily and properly made by the King and the two Houses have a Cooperation but no Co-ordination of Power for the breach of any Statute whether it be by Treason Murther Felony Perjury or by any other way is an offence against the (k) Encounter la Corone Dignitie le Roy. Stanford 's Pleas of the Crown lib. 1. c. 1. Kings Authority alone and Pleas made against such Offences are called The Pleas of the Crown because they are done against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is violated but the Dignity and Authority of the King This appears also in the Power the (l) Sheringham p. 35. See Finch lib. 2. fol. 22. Coke 2 II. 7. lib. 7. fol. 14. Stanford lib. 2.101 King hath in dispensing with such Laws as forbid a thing which is not malum in se and in pardoning the Transgression of others as Treason Felony c. which in Reason he ought no more to do than to dispense with the Laws of Germany Spain or France or pardon the Transgressors thereof if they were not made by his Authority Furthermore it is a certain Maxim of the Law (m) Ejusdem est leges interpretari cujus est condere The Amendment was sealed by the Great Seal 2 May 9 E. 1. commanding the Justices to do and execute all and every thing contained in it though the same did not accord with the Statute of Gloucester in all things None can interpret the Laws but the same Power that makes them But the King may do this as appears by the Statute of Glocester 6â—â— where immediately after the Statute are these words After by the King and his Justices certain Expositions were made upon some of the Articles above mentioned So the Judges are appointed by the King and they have from him a Power to interpret the Law judicialiter otherwise they could not proceed to Judgment and being called by the King with him and under him they have a Power to interpret the Law Authoritativé But the two Houses besides that they can do nothing singly or joyntly without the Kings Concurrence in (n) Sheringham ut supra their make and composition are unfit to interpret Law For such Power as interprets Law must be always existent or in being to act according to emergent Occasions which the two Houses are not And if they were a permanent Body yet they having a Negative upon each other the Interpretation of the Law must be retarded and all Controversies depending thereupon undecided And this Disagreement might perhaps endure for ever and so a final Determination in such Suits would be impossible Now these are Inconveniences which ought not to be admitted in any Commonwealth for it derogates both from the Honour and Wisdom of a Nation to be so moulded and framed that Justice cannot have a free Passage in all Contingencies Not only the Legislative Power it self but the very (o) Hem p. 36. The King may provide for all things necessary for Government where the Law hath not provided or contradicts not Exercise of the Power also so far as it is essential to Government is in the King alone for he can by Edicts and Proclamations provide for all necessary occasions and special Emergencies not provided for by fixed Laws which is one of the most excellent and eminent Acts of the Legislative Power and a sufficient Remedy against all Mischiefs in case the two Houses should refuse to concurr with him in those things which concern the Benefit of the Kingdoms For as (p) Ea quae Jurisdictioâ—is sunt pacis ea qâ—ae sunt Justitiae paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiâ—m Bracton lib. 2. c. 24. Bracton saith those things which belong to Jurisdiction and Peace and those which are annexed to Justice and Peace appertain to none but the Crown neither can they be separated from it because they make the Crown If the King should unwarily by Act of Parliament consent to any thing prejudicial and derogatory to His Royal Prerogative such Acts are void by the Common Law and the Judges are bound to declare them so as that of 23. H. 6. about Sheriffs not to continue longer than one Year was by the Judges declared void and all Kings since might with a Clause of non obstante against the manifest words of the Statute have granted that office for Life in Tail or in Fee But I need not enlarge upon this for all the Acts for the King's Supremacy all the Laws and Statutes that over were made put this beyond Dispute that the affirmative Voice is absolutely in the King that no Laws can be binding or be Laws at all without his special Consent and this being one of the great Rights of Sovereignty cannot be separated from the Person of the King although he (q) Suprema jurisdictio potestas Regia etsi Princeps volet separari non pessunt sunt enim ipsa sorma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt
Nec aliud adversus validissimas Gentes pro nobis utilius quam quod in commune non consulunt Vita Agricolae p. 308. but divided into Multitudes of little Kingdoms which made Tacitus observe That there was nothing more profitable to the Romans against the most puissant and valiant Nations than that they advised not in common CHAP. XXII Of the Government of the Britans and the Romans imposing their Laws upon them Antiquity of English Customs CHancellor (a) Regnum illud eisdem quibus jam regitur consuetudinibus continue regulatum suit De laudibus LL. Angliae c. 17. Fortescue affirms That in all the times of the Britans Saxons Danes and Normans and of their Kings this Realm was ruled with the self same Customs that it is now governed withal which he saith if they had not been right good some of those Kings moved either with Justice with Reason or Affection would have changed them or else altogether have abolished them and especially the Romans who did judge all the rest of the World by their own Laws So Sir Edward Coke (b) Epistle to the sixth Book of Reports saith the common Law of England was here before the Entry of the Romans Saxons Danes and Normans and it was never altered by any of them and so he (c) Proem to 2. Instit fol. 1. and 2. Instit fol. 3. makes Magna Charta Declaratory of the principal Grounds of the fundamental Laws of England and for the residue that it is additional to supply some Defects of the Common Law and was no new Declaration So Sir John Davis in his Preface to the (d) Leges mâ—â—ibus receptâ—â— majoris sunt Autoritatis quam leges scriptae Arist Polit. lib. 3. c. 12. Irish Reports magnifies the Common Law as Jus non scriptum better than all the written Laws in the World excelling Parliament Laws which are written coming nearest to the Law of Nature which is the Root and Touchstone of all good Laws When I read these Assertions I think it had been incumbent upon these learned Men to have deduced as far as they could by History some Testimonies of Ancient Writers to have confirmed their Positions But in none of them do we find the least offer of a Proof for what they say I think it would be a very commendable Work and very pleasant to all ingenious Persons The Benefit to have our Common Laws and Customs ascertained and compared with all Ancient Laws if some of the Long Robe would digest into Heads that which is owned as the Common Law For though Sir John Davis calls it unwritten and which had its beginning beyond the Memory of any Man living and that a Custom tryed and approved time out of mind doth become a Law to bind the People yet nothing can hinder but whatever is preserved in the Memory of Men living and owned as custom may be committed to writing Now I would not only desire it might be so written and published but that some judicious Lawyer who was likewise well versed in History and Antiquities would search out for some parallel written Laws among the Graecians and Romans as also compare all the Saxon Laws we have the Laws of the Lombards Boiarian Ripuarian and other Laws and then I doubt not but they would acquire a greater Veneration in the World and it would be known whether the Opinions of the learned Chancellor and Lord Chief Justice were to be relied upon as to the Antiquity of them before the Roman time The Glory of his Profession and of our Nation as to that learning he was versed in which was not small I mean (e) Notes upon Fortescue p. 14. ad 22. Mr. Selden hath given the best Solution to this point of the Antiquity of our Customs and Common Law that I have yet met with which I shall abstract in as summary a way as I can First he saith The Opinion of the Antiquity of our Common Law before the Civil is founded upon the Story of Brute of which the Chancellor speaks in his Thirteenth Chapter and that Story supposing him to be here more than three Hundred Years before Rome was built makes the Chancellor conclude our Common Law so Ancient but supposing there were some Truth in that Fiction how can the Chancellor be certain that the same kind of Law and Policy hath ever since continued unless an Oral Tradition may here find as great respect as it hath with some in spiritual matters The Antiquity of all Laws Therefore with Mr. Selden we may judge all Laws in general originally to be equally Ancient as being grounded upon Nature every Nation taking the grounds of their Laws from it and Nature being the same in all the beginning of all Laws must be the same Even from the first Peopling of the Land when Men by Nature being civil and sociable Creatures grew to plant common Society and I may add when they being under the Government of a Prince received Laws by his Appointment extracted out of the Laws of Nature the Necessity of Government and the Conveniences of the People we may date National Laws Now though the Law of Nature be truly said to be immutable yet it 's as true that it 's limitable and the limited Law of Nature is that now used in every State for the divers Opinions of Interpreters proceeding from the weakness of Mans Reason and the several conveniences of divers States have made those different Limitations which the Law of Nature hath suffered It falls out that in several Nations they are so disguised by the various Modifyings and Repairs that as to their first being they are like (f) Vbi nihil ex pristina materia supersit Jason's Ship that had nothing of the old Materials remaining Therefore the learned Selden adds That little follows in point of Honour or Excellency specially to be attributed to the Laws of a Nation in general by any Argument drawn from the difference of Antiquity which in substance is alike in all for as soon as Italy was peopled this beginning of Laws was there and so when there was first a State in that Land which the Common Law now governs there were natural Laws limited for the Convenience of civil Society here Notwithstanding the Opinion of the (g) De laudibus LLâ— Angliae c. 17. Chancellor that neither the Roman Civil Laws nor the Laws of the Venetians which above all other he saith are reported to be of most Antiquity nor the Laws of any Paynim Nation of the World are of so old and antient Years as the Customs or Common-Law of England and that they have weathered out the changes and overthrow of People by the Romans Saxons Danes and Normans Yet I cannot believe but every of those Nations when they obtained the Power of Government introduced their own Laws and abolished what they found not agreeable to their own Politie As to the British Laws Whence to learn the
principal Magistrates sent into the Provinces bordering on the Enemy or Frontiers of the Empire were called Legati the Magistrates or Officers in Italy were Praetorian and Consular those abroad Propraetorian and Proconsular Whoever desires to see more of this or what was appointed under Constantine may have recourse to Pancirollus de Magistratibus Municipalibus Alciatus de Magistratibus and the Notitia Provinciarum where all the Officers are deseribed with the several Provinces and the Cities contained in them and the Ensigns or Symbols of the Officers Then Britain was divided into five parts viz. Britannia prima and secunda Flavia Caesariensis Maxima Caesariensis Valentia being all under the Vicar or Deputy of Britain under the Viceroy or Praetorian Prefect of Gaul we find in the Roman Coins exhibited by Camden a Colony at York Divana or Chester and others So that it cannot be thought that Britain was not as subject to the Roman Laws as other Conquered Countries Whence (s) Latias ab eo jurare Leges compulsam De Gestis Reg. l. 1. c. 1. Malmsbury saith That Julius Caesar compelled the Britans to swear Obedience to the Latin Laws And Gildas * Non Britannia sed Romania censebatur Excid Britanniae The Britans learn the Roman Arts and Language saith it was reckoned not Britannia but Romania And more particularly that Britain was subject to the Roman Law these Observations following will prove ‖ Linguam Romanam abnuere postea eloquentiam concupiscere inde etiam habilus neslri honor frequens toga paulatimque discessum ad delinimenta vitiorum Balnea Porticus conviviorum elegantiam idque apud imperitos humanitas vocabatur cum pars esset servitutis Vita Agric. c. 21. Tacitus tells us that in his time the Britans began to learn the Arts and to exceed the Gauls in Wit and Learning and though they did at first reject the Roman Speech yet at length they did covet their Eloquence from thence they had in Esteem the Roman Habit and their Gown was frequently worn and by little and little they descended to the fashionableness of their Vices in their Portico's Baths and Beauty or sumptuousness of their Banquets which among the ignorant was called Humanity or good Breeding whereas it was a part of their Servitude If we add to this the Consideration of what I have noted out of Ramus of the change of the Gallick Language and Laws we may conclude that the ancient (t) In Catalect vet Poet. lib. 1. tit 7. Poet spoke Truth who saith Cernitis ignotos Latia sub Lege Britannos All these things are to be understood of the natural Britans who no doubt were not backward in affecting the Roman Laws as well as the other things mentioned by Tacitus For which the Language and Rhetoric were most useful otherwise what need was there of having Lawyers from Gaul which the Poet calls (u) Juvenalis Sat. 7. Nutricula Causidicorum and who tells us that (x) Satyra 15. Gallia Causidicos docuit facunda Britannos De conducendo loquitur jam Rhetore Thule So we find That Severus left his Son (y) Herodian lib. 3. Juri dicendo rebusque civilibus ut praeesset Geta when he made his Northern Expedition to be as Lord President of the North and Papinian the famous Civilian sate in the Tribunal at York and from thence Severus and Antonius set forth the Imperial Edict (z) Cod. lib. 3. tit 32. That Laws were not like to be made by the Britans while under the Romans de rerum Venditione Hitherto we find no probability of any Laws amongst the Conquered Britans but such as the Romans imposed or allowed of After the Britans embraced Christianity we have some imperfect accounts of King Lucius sending to Pope Eleutherius to send him the Roman Laws and of Caesar But Sir Henry Spelman (a) Cum has domi a Romanâ— Praeside nec fugienâ—as quidem obtineret Concil Tom. 1. p. 35. and others do justly reject this as spurious because he could not want those nor avoid the obedience to them in his own Country for as he saith from the time of the Emperor Claudius who subdued most of Britain the Roman Laws were published in Britain and the Brigantes the Inhabitants of Yorkshire and the Countries beyond Humber according to Seneca (b) In ludo de morte Cl. Caes were subject to them who speaking of Claudius Caesar writes thus Ille Britannos ultra noti littora Ponti Et Coeruleos * Vel Scoto-Brigantas Senec. in Octav. scuta Brigantas dare Romuleis Colla catenis jussit ipsum nova Romanae Jura securis tremere Oceanum So in another place Cuique Britanni terga dedêre Ducibus nostris ante ignoti Jurisque sui There being nothing to be found of secular Laws of the Britans either before their expulsion by the Saxons into Wales Concerning the Laws of Hoel Dha and the Britans in Wales or after excepting some Ecclesiastical Constitutions in Synods till the Laws of Hoel Dha i. e. the Good I must refer the inquisitive Reader to Sir Henry Spelman's first Volume of Councils where he will find the first at Verulam or St. Albans Anno Christi 446. that by St. German against the Pelagian Heresy Anno 449. that in Wales near the Mountain Erir that under Dubritius and three at Landass before the year 560. and others at Landass after ann 887. Now as to the Laws of Hoel Dha the Preface to his Laws saith That he seeing his Welsh insolently to abuse the Laws he called out of every Kemut or Hundred of his Kingdom six (c) Laicos viros auctoritate scientia pollentes omnes Eâ—clesiasticos dignitate baculosos Spelm. Concil Tom. 1. fol. 408. Twy gwyn ar Tass the White House upon the River Tass Lay-men excelling in Authority and Wisdom and all the Ecclesiastics dignifyed with Pastoral Staves as Archbishops Bishops Abbats and Priors to a place called Guin sup Taff yn Deved which House he would have built with white Wands for an House to lodge in when he came to hunt in the parts of Demetie wherefore it was called Ty Gvyn there they stayed all Lent praying and fasting c. of those the King chose Twelve Lay-men most learned and one Clergy-man called Blangorid to instruct him in the Laws that they might come nearest to Truth and Justice and ordered them to be writ in three parts (d) Prima Lex Curiae 〈◊〉 quotidianae secunda Lex patria tertia usus utriusque One for his daily Court another to be the Law of the Country and a third to be of use for both The Laws printed are all Ecclesiastical only in (e) Cap. 25. one of them it is said that it is found in the Roman Laws That where the number of Witnesses are not determined there two are sufficient As to the other Laws I have not had the good Fortune to meet with any Transcript of them only in
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
60. Why with these unjust exactions do not the Barons require the Kingdom and swore he would never grant such Liberties whereby he should be made a Servant However he was afterwards at Runing-mede compelled to sign the Charter there being with him but eight or nine Bishops four Earls and some twelve Barons as Matthew Paris numbers them but he saith as to those present on the behalf of the Barons the Company was innumerable as being tota Angliae Nobilitas in unum collecta Therefore the King grants them the Liberties by way of Charter (i) Idem fol. 215. num 13. per consilium venerabilium Patrum nostrorum c. and so recounts those that were present with him not mentioning any of those that were against him as I remember This was the Charter which Henry the third (k) Idem fol 216. num 30. confirmed and is called Magna Charta the principal matter in it which relates to my purpose was that he made some alteration in the manner of Summoning Members to the Great Council viz. The alteration of the Summoning the Members to the Great Council Note In this Charter the King grants he will raise no Money on the Subject without Consent but in three Cases to redeem his Body make his eldest Son Knight and marry his eldest Daughter And the like Power others â— had over their Liberi homines That the Archbishop Bishops Abbats Earls and greater Barons of the Kingdom should be summoned by special Writs and that he would cause to be summoned by the Sheriffs and his Bailiffs those which held in Capite of him to a certain day by general Summons So that it is apparent that the Great Councils heretofore had only consisted of such Earls and great Barons and Tenents in Capite as the King by special Writ pleased to Summon and this new way brought in a greater number of the Tenents in Capite but still here were no Representatives of the Commons In the Charta de Foresta the King saith Dei intuitu c. ad emendationem Regni nostri spontanea bona voluntate nostra dedimus concessimus pro nobis haeredibus nostris has libertates subscriptas The King was sore vexed He repents his granting the Charter that these Liberties had been extorted from him and sent to Pope (m) Idem 224. Innocent who also absolved him from the Obligation upon the ground that he had given (n) Id. 227. num 20. The Pope absolves him the Kingdom to St. Peter and the Church of Rome and so could make no such Charter without his leave and after he Excommunicated the Rebellious Barons In this Charter as in all the rest of the Charters of Liberties we (o) Animad on Jan. Augl fol. 167. The King 's Grant by Charter a good Law then may observe that the Petitions of the People were drawn into the form of a Charter and passed under the Kings Seal as his meer voluntary free Grants and Concessions without any Votes Suffrages or Authority of the People So Matt. Paris saith of this Charter that when King John saw the Barons too powerful for him (p) Fol. 255. num 30 50. gratanter eis concederet Leges Libertates quas petebant he willingly granted the Laws and Liberties which they asked or petitioned for So in the Charter it self (q) Ibid. fol. 256. lin 18. Concessimus etiam omnibus liberis hominibus nostri Regni Angliae pro nobis haeredibus nostris in perpetuum omnes libertates subscriptas habendas tenendas eis haeredibus suis de nobis haeredibus nostris that is And we have also granted to all our Free-men of the Kingdom of England for us and our Heirs for ever By Freemen here to be understood the Tenents in Capite all the under-written Liberties to have and to hold to them and their Heirs of us and our Heirs c. CHAP. XXVI Of the Great Councils and Parliaments during the Reign of King Henry the Third to the end of the Reign of King Edward the Third THE first great Council I find in this Kings Reign was on the Eighth of the Octaves of (a) Matt. Paris fol. 266. num 60. Epiphany Anno 1223. 7 H. 3. The King having kept his Christmas at Oxford came to London to have a Colloquium with his Barons and the Archbishop and other Magnates pressed the King to confirm the Liberties and Free customs for which Wars had been moved against his Father and which he had confirmed by Oath upon the recess of Lewis of France to which also he said the (b) Juravit tota Nobilitas cum eo quod libertates praescriptas omnes observarent omnibus traderent observandas Ibid. whole Nobility had sworn that they would observe them and deliver them to all others to observe To which William Briwere one of the Kings Council answering for the King said The Liberties they desired being violently extorted from the King they ought not of right to be observed From whence we may observe Liberties violently extorted from the King not binding that whatever claims were made for Liberties still they were grounded on the Monarchâ— Concessions and such as were by any violence wrested from the Kings were not reputed binding to the Crown In the Octaves of the Holy Trinity the Eighth of Henry the Third there met at a Colloquium at Northampton the King with (c) Rex cum Archiepiscopis Episcopis Comitibus Baronibus aliis multis de Regni negotiis tractaturus Idem fol. 269. num 60. 270. the Archbishops Bishops Earls and Barons and many other to treat of the Affairs of the Kingdom By these alii multi the Tenents in Capite are to be understood which more numerously appeared since King John's Charter This Great Council was intended for the relief of Poicton but Falcacius de Brent having seiz'd on Bedford Castle and taken Henry de Berybroke one of the Kings Itinerant Justices obliged the King to prosecute him At this (d) Idem fol. 271. num 20. Council the Prelates and Laics gave the King for his great Labours and Expences 2 s. upon every Plough The King grants the Tenents in Capite Scutage upon their Tenents and the King granted to the Magnates 2 m. out of every Knights Fee This was to be levied by the Magnates such as held of the King in Capite of their Tenents to reimburse them what they had expended in aiding the King And so the Council broke up But the King 9 Regni Anno 1225. (e) Idem fol. 272. num 20. keeping his Court at Christmas at Westminster praesentibus Clero Populo cum Magnatibus Regionis After the Solemnity was passed Hubert de Burgo the Kings Justiciary on the part of the King proposed to the Archbishops Et alâ—â—t universis Bishops Earls Barons and all the Vniverse that is the Tenent in Capite the damages and
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
Eyre Justices Assignes Barons of his Exchequer Clerks Secretaries of his Council and sometimes his Serjeants at Law with such other Officers and Persons whom our Kings thought meet to summon The first Writ that Mr. Prynne finds extant in our Records and which Sir William Dugdale mentions is entred in the Clause-Roll 23 E. 1. dorso 9. directed to Gilbert de Thornton and thirty eight more whose Names are in Sir William Dugdale whereof there are eleven by the name of Magistri three Deans and two Archdeacons only I find them differently ranked in Mr. Prynne to what they are in Sir William Dugdale The Writ runs thus Rex dilecto fideâ—i suo Gilberto de Thornton salutem Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque de Concilio nostro tangentibus quae sine vestra eorum praesentia nolumus expediri c. Vobis mandamus in fide dilectione c. as in the usual Summons to the Bishops Sometimes as 25 E. 1. there (u) Cl. 25 E. 1. m. 25. dorso was no Writ directed to them but we find under the Name of Milites with a Lines space betwixt them and the Barons thirteen named which by other Records are known to be the King's Justices The differences in their Writs are mostly these Sometimes The difference in their Writs as in 27 E. 1. it is Cum caeteris de Concilio nostro habere volumus colloquium tractatum or as in 28 E. 1. (w) Cl. 28 E. 1. m. 3. dorso showing the special Cause Quia super Jure Dominio quae nobis in Regno Scotiae competit c. cum Juris peritis cum caeteris de Concilio nostro speciale colloquium habere volumus tractatum vobis mandamus c. cum caeteris de Concilio nostro super praemissis tractaturis vestrumque consilium impensuris At the same time there are Writs to the Chancellor of the University of Oxford to send four or five Persons skilful in the Law summoned from the Universities de discretioribus in Jure scripto magis expertis and to the Chancellor of the University of Cambridge to send two or three in the like manner qualified and then follow Writs to several Abbats Priors Deans and Chapters and all these Writs mentioned the Business of the King's Claim to the Jurisdiction of Scotland and in the Writs of Summons to the Archbishops Bishops Abbats Priors Temporal Lords Justices and Sheriffs of Counties that Particular is not mentioned which shows that the King summoned these particular Persons as most fit to search and â— send their Chronicles to the Parliament The Occasion and Result whereof and of sending these Lawyers from the Universities you may read at large in (x) An. 13â—2 p. 419. to p. 438. Matth. Westminster and (y) Hist Ang. p. 32. to 58. Walsingham In some Writs as that of 9 E. 2. (z) Cl. 9 E. 2. m. 20. dorso the Justices are appointed to expedite their Assizes that they may not fail to be present at the Parliament or to leave two to attend the Business of the King's Bench And the 7 of E. 2. (a) Cl. 7 E. 2. m. 25â— dorso Justices to leave the Assâ—zes to attend the Parliament That whereas they had appointed the Assizes at Duresm and other Parts in the Northern Circuit at certain days after the time the Parliament was to convene at which he wondred he orders them to put off the Assizes and attend By which two Writs it appears their Summons by Writ to attend and counsel the King in Parliament was a Supersedeas to them to take Assizes during the Parliament and that the Assizes and Suits of private Persons ought to give place to the publick Affairs of the King and Kingdom in Parliament Whoever desires to know who were summoned in this manner and the further variety of Summons may consult Mr. Prynne and Sir William Dugdale's Summons From these Writs we may observe Observations from these Writs first That sometimes the Persons summoned were many in number sometimes very few and always (b) Brief Register part 1. a p. 366. ad p. 394. more or less at the King's Pleasure Secondly in latter times the Clergy-men were wholly omitted Thirdly That they were never licensed to appear by Proxies Mr. Prynne hath collected a great many Precedents to prove that these Persons thus summoned together with the King 's ordinary Council had a very great Hand Power and Authority not only in making Ordinances Proclamations deciding all weighty Controversies regulating most publick Abuses and punishing all exorbitant Offences out of Parliament in the Star-Chamber and elsewhere The Employment of these Assistants but likewise in receiving and answering all sorts of Petitions determining and adjudging all weighty doubtful Cases and Pleas yea in making or compiling Acts Ordinances Statutes and transacting all weighty Affairs concerning the King or Kingdom even in Parliaments themselves when summoned to them Yet these have no Vote but only are to speak to such Matters as their Opinions are required in and sit uncovered unless the Chancellor or Lord Keeper give leave to the Judges to be covered SECT 6. Concerning the House of Commons I Now come to consider the Honourable House of Commons and the Use The Summons of the Knights Citizens and Burgesses Constitution and Priviledges of it and shall first consider the Summons by which they have their Power to act as an House and third Estate in Parliament Mr. (c) Second Part of Brief Register a p. 1. ad 29. Prynn hath cleared that all the Writs of Summons directed to Sheriffs in King John and Henry the Third's time before 49 H. 3. to send Knights to the King at set times were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity or to assist with Men and Arms and were not elected as Representatives of the Commons till 49 H. 3. To whom I shall refer the curious for Satisfaction as also to Dr. Brady who hath by his own Inspection as well as the considerate application of what Mr. Prynn hath amassed in his Books since his late Majesties Restauration and after 1648 composed many most useful Observations for the understanding of the ancient customs usages and practices relating to Parliaments Therefore I shall endeavour to be as short as possibly I can and without obscurity contract what they and most others that treat of the House of Commons have at large filled Volumes with The form of the Writ 49 H. 3. to the Sheriffs is not (d) Cl. 49 H. 3. m. 11â— dorso expressed but after the recital of the Writ to the Bishop of Duresm and Norwich and the eodem modo to the Bishops Abbats Priors Deans Earls Lords and Barons there follows this entry
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
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
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâ—less a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
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
ei nihil turpe cui nihil satis 3ly That he should be Avarus Rei Publicae covetous for the Kings Treasure and Commonwealth 4ly That he super omnia sit expertus that he be expert in what place the King shall imploy him for great Offices are never well managed by a Deputy When quick and when deliberate Counsels are best where the Officer himself is but a Cypher As to Counsels themselves Livy (p) In rebus asperis tenuis spei fortissima quaeque consilia tutissima sunt Lib. 22. excellently notes That in matters that are ground to an edge or drawn to a sharp point and where hope is only left in the bottom the boldest and quickest Counsels are safest yet it must be with great circumspection well considered when and upon what occasions such Counsels must be taken for the same (q) Consilia calida audacia prima specie laeta sunt tractatu dura eventu tristia Idem lib. 31. Author notes elsewhere That subtile and bold Counsels on the first view may be pleasing but are difficult in handling and in the event often Calamitous therefore rashness can never consist with Counsel duo adversissima rectae menti saith (a) Lib. 3. Male cuncta ministrat impetus Statius Thucydides Celeritas Ira Haste and Passion are of all things most opposite to Right Counsel therefore Curtius (b) Novanâ—is quam gerendis rebus aptiora ingenia illa ignca speaking of such saith Fiery and furious Spirits are more fit to innovate things and create Factions than to manage Affairs steddily (c) Praepropera consilia sunt raro prospera So hasty Counsels are rarely Prosperous because Resolution should never go before Deliberation nor Execution before Resolution When (d) Prinsquam incipias consuli o ubi consulueris mature fado opus est Sallust upon Debate and Deliberation it is by the Council-Table well resolved the change thereof upon some private information is neither safe nor honourable nor that after timely Resolution timely Execution be delay'd Violent (e) Coke Inst 4. p. 57. courses are like to hot Waters that may do good in an extremity but the use of them doth spoil the Stomach and it will require them stronger and stronger and by little and little they will lessen their own operation To leave this great Theme as too illustrious and sublime a Subject for one to treat of that hath lived in the Shade I shall now proceed to make some other remarks why our Laws give our Kings the sole power of chusing to themselves a Privy-Council and how the designers of 41. would have wrested that Power from the King Besides (f) Review of Observations p. 10. The King's Prerogative to chuse his Privy-Council what is common to all men to have a free liberty to whom they will impart their private Affairs and desire Counsel upon them our Laws being built upon firm foundations of reason considering that in the power of making of Laws the power of two numerous bodies were opposed against the Person of the single Soveraign it foresaw and found that by the Soveraigns consenting to Laws for the ease and benefit of the Subject things might pass to the prejudice and diminution of the Soveraignty If his single Person surcharged with the care of the manifold Affairs of the Kingdom should be left all alone to advise and dispute his right against all the Wisdom and Solicitation of the Representative Body of the Subject See Prynne's Brief Register sect 3. from p. 341. to the end concerning the King's Council in Parliament and out of it Therefore to prevent that it ordered That the King should at his discretion swear to himself a Body of Council sometimes in our Laws called his Grand Council to advise him in matters of State and concernments of his Soveraign Right and safety and a Body of Council at Law to advise him in matters of Justice that he might neither do or suffer contrary to the Rule of Laws especially sitting the two Houses when the wrong might be perpetual and seeing the Government must be continually upon its Guard and Watch without intermission molding and forming all things for its safety and prosperity and consequently of the Peoples this Council must be constantly attending upon the Kings pleasure and daily and hourly considering the best ways and methods of promoting the Kings and Commonweals advantage As to the (g) Pulton 37 56. 72. first particular we find it frequently in several Statutes expressed That the King by himself and by his Council at his Parliament made and ordained The necessity of a Privy-Council That this was not the great Council of Parliament appears by that of Edward the First (b) Idem p. 80. These are the Establishments of the King by his council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned and Edward the Second saith he caused the Articuli Cleri to be rehearsed before his Council and Answer given c. and much more may be observed in the Acts of the great Councils not fit here to be repeated From hence it is that the Law defines The King can do no wrong Privy-Counsellors responsible for if any evil be committed in matter of State the Privy-Council and if in matters of Law the Justices and Judges must answer for it As to the second particular the Parliament of 1641. cast the odium of most of the management of Affairs of State The Votes of the Long Parliament to traduce the King under the pretence of using Evil Counsellors that were ungrateful to them upon the Kings evil Counsellors as they called them which was a great artifice of the designers of that Rebellion for thereby being then not hardned enough to caluminate the King openly they would make the World believe they paid a just deference to his Majesty yet slily wounded his Reputation through his Counsellors sides leaving the application to the People Tacitly insinuating that the King being mis-led by such Councils was not so Just or Wise as to be wished and when afterwards they had got Power they always made it one of their propositions That the two Houses should have the nominating That the two Houses should have the nominating of Privy-Counsellors So in Henry the Third's time we find Mountfort's Model of Twenty four to redress the Kingdom to chuse Counsellors c. or approving and removing the Privy-Council or great Officers of State pretending they would set such just and righteous Persons in those places as would execute them for the publick good only and upon the same score though on another pretence they were importunate that the Judges should hold their places tam diu quam se bene gesserint rather than be removeable at the Kings pleasure Thus by vote without legal proof of Crimes they blackned as many of the Kings Privy-Council
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
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
mixt and they rode from seven Years to seven Years These Justices in Eyre continued no longer than till Edward the Third's time for then as Mr. (m) Notes on Hengham p. 143. Justices of Assize Selden notes Justices of Assizes came in their Places though it is manifest that Justices of Assize were sooner begun For (n) Lib. 3. c. 10. Bracton mentions these Justices of Assizes in his time in these words Sunt etiam Justitiarii constituti ad quasdam Assisas duo vel tres vel plures qui quidem perpetui non sunt quia expleto negotio Jurisdictionem amittunt The form of the Writ in (o) Cl. 9 H. 3. m. 11. dorso 9 H. 3. is set down by Sir William Dugdale in which the King constitutes his Justitiarii to take the Assizes of new disseising and Delivery of the Gaol and the Command to the Sheriff is to cause (p) De qualibet Villa quatuor legales homines Praepositum de quolibet Burgo vel Villa mercanda duodecim legâ—les homines omnes Milites libere Tenentes c. four legal Men and the Provost out of every Village and twelve lawful Men out of every Market-Town and Borough and all the Knights and Free-Tenents that is all that held in Capite to do what the Justices should on the King's part appoint In 21 E. 1. (q) Placit Parliam 21 E. 1. num 12. another settlement was made that either discreet Justices should be assigned to take Assizes Jurats and Certificates throughout the whole Realm viz. for the Counties of York Northumberland Westmoreland Cumberland Lancaster Nottingham and Derby two In the Counties of Lincoln Leicester Warwick Stafford Salop Northampton Rutland Gloucester Hereford and Worcester other two In the Counties of Cornwall Devon Somerset Dorset Wiltshire Southamptom Oxford Berks Sussex and Surrey two For the Counties of Kent Essex Hertford Norfolk Suffolk Cambridge Huntingdon Bedford and Bucks two and that the Assizes c. of Middlesex should be taken before the Justices of the Bench. (r) Mâ—ltis vigiliis excegitata inventa fuit recuperandâ—e possessionis gratia ut per summariam cognitionem absque magna Juris solennitate quasi per compendium negotium terminetur Lib. 4. sol 164 b. Bracton speaking of the Writ called Assiza novae disseisinae saith it was found out and contrived by much Vigilance for the recovering of Possessions by a summary or speedy Conusance without great Solemnity of the Law that the business might be compendiously determined For before at Common-Law Assizes were not taken but either in the Bank or before Justices in Eyre which was a great delay to the Plaintiff and a great molestation and vexation of the Recognitors of the Assize therefore in Magna Charta the Assizes are appointed to be taken in the respective Counties and the Patents to Justices of Assize run thus (s) See the Patent Clause and Fine-Rolls from King John to Edw. 4. Sciatis quod constituimus vos Justiciarios nostros una cum hiis quos vobis associaverimus ad omnes Assisas c. in Com. c. arainandas capiendas c. facturi inde quod ad Justitiam pertinet secundum legem Consuetudinem Regni vostri Angliae Salvis nobis amerciamentis inde provenientibus The Justices of Nisi Prius (t) Ad exonerationem Juratorum ad ceâ— lerem justitiam in ea parte exhibendum Stat. de Finibus 27 E. 1. c. 4. were first instituted by the Statute of Westm Justices of Nisi Prius 2. and their Authority is annexed to the Justices of Assize These Justices were instituted for two principal Causes for the ease of Jurors and for the speedy exhibiting of Justice SECT 8. Justices of Oyer and Terminer AS to the Justices of Oyer and Terminer they are appointed either by (u) Coke 4. Inst fol. 162. general or special Commission By general Commission they are to enquire of Treasons Misprisions of Treason Insurrections Rebellions Murders Felonies Manslaughter (w) Interfectionibus Killing Burglaries Rapes of Women unlawful Assemblies Conventicles (x) Verborum prolationibus false News Combinations Misprision Confederacies false Allegations Riots Routs Retainings Escapes Contempts Falsities Negligences Concealments Maintenances Oppressions Combinations (y) Cambipartiis of Parties Deceits and other ill Deeds Offences and Injuries whatever and to do thereupon what appertains to Justice according to the Law and Custom of the Kingdom Special Commissions were not granted unless for enormous (z) Nisi pro â—nermi transgressione ubi necesse apponere festinum remedium Cl. 14 E. 3. part 1. m. 41. dorso Hil. 2 H. 4. Rot. 4. Mich. 1 H. 8. Transgressions where there was a necessity of speedy Remedy In some cases we find the Justices of Oyer and Terminer have upon an Indictment found proceeded the same day against the Party indicted So Thomas Marks Bishop of Carlisle before Commissioners of Oyer and Terminer was Indicted tryed and adjudged all in one day for High-Treason Likewise Sir Richard Empson was indicted of High-Treason and tried all in one day So Robert Bell 10 Dec. 3 E. 6. and 10 Eliz. 4 Aug. John Felton was before Commissioners of Oyer and Terminer in London indicted of High-Treason and tried the same day by the advice of all the Judges of England SECT 9. Of the Kings Erection of Courts IN some Cases the King may erect new Courts of Justice What new Courts the King may erect and grant Conusance of Pleas to a Corporation to be kept after the Rules of the Law not in a way of a Court of Equity but may not alter the great Courts at Westminster that have been time out of mind nor erect a new Court of Chancery Kings-Bench Common Pleas Exchequer c. Although in a proper Court such as our Chancery a Judge of Equity be allowed yet if it were permitted in all other Courts to expound the Law against the letter and perhaps the meaning of the Makers according to Conscience as we speak there would soon be introduced absoluteness and Arbitrary Power Therefore great Care is taken by those that understand the Law that matters be not left to the discretion of any Persons Commissionated by the King to adjudge of any Causes So the plausible Statute (b) 11 H. 7. c. 3. of H. 7. to put in Execution the Penal Laws impowering Justices of Assize and of Peace upon Information for the King by their Discretion to hear and determine all Offences and Contempts against any Statute unrepealed was found to have Authorised Empson and Dudly to commit upon the Subject unsufferable pressures and oppressions So that (c) 1 H. 8. c. 6. soon after that Kings death it was repealed and those two brought to Tryal and executed for their oppressions So the Statute (d) C. 2. 8 E. 4. of Liveries c. by the discretion of the Judges to stand as an Original is deservedly repealed In
Goods thereof to be done as shall please him There is in this Oath as great Security taken Observations on this Oath as morally can be that the Judges perform their Office uprightly and judge according to the Law and if this will not make them wary how they give Judgment contrary to Law there are other Constraints upon them As first That the King may displace them when he pleases they holding their Places only durante beneplacito Secondly The House of Commons may question them for any false Judgment and Miscarriage in their Office which must be a great Check and deterring of them from giving any unjust Judgment either for Lucre-sake by Bribes or Partiality of Affection There are besides others two illustrious Examples of punishment of Corrupt Judges the one of Sir William Thorp (t) Rot. Parl. 25 E. 3. Rot. 10. condemned for breach of his Oath in taking Bribes Judges punished for breaking their Oath He was Indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers 24 E. 3. and the Record saith Ideo consideratum per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis secundum Regale posse suum because he broke the Oath which he took to the King and so was adjudged to be hanged The (u) Exact Abridgment p. 74. Record of this Judgment was brought into the Parliament 25 E. 3. the King having by a Writ under the Privy-Seal stayed his Execution and it was read opeâ— before the Lords and all the Lords affirmed the Judgment to be good provided this Judgment should not be drawn into example against any other Officers who should break their Oaths but (z) Qui praedictum Sacramentum fecerunt fregerunt habent Leges Regales Augliae ad custodiendas only those that took the said Oath of Justices and broke it such to whom the Royal Laws of England are committed The other is the Famous Sir Francis Bacon Lord St. Albans who being Lord Chancellor was found guilty of taking Bribes by his Servants whom though many for his great Learning would acquit as leaving too much to his Servants yet he fell an illustrious example of Justice against the highest Judges and in the forecited Record against Sir William Thorp it is apparent that the Lords who in those days were the sole Judges in Parliament thought no persons breach of Oath was capitally to be punished but only the Justices Before I come to speak to some of the long Parliaments writing Champions misapplication of the Kings Power in his Courts I think it expedient to give some Characters I have met withall of the qualifications of Judges In a Speech made to Justice (a) MS. Speech penes Rad. Thoresby de Leedes Gen. Manwood when he was chosen Lord Chief Baron the Chancellor tells him There are four things requisite in a Judge First His knowledge of the Law which is presumed every one hath that the King appoints to be his Justiciary Secondly Discretion that though in his Judgment he may vary from the letter of the Law yet he may never judge contrary to the intention of it which is Animus Legis Thirdly Integrity for it were better to have a Judge of convenient learning and discretion that would command and rule his Affection and Judgment than one of excellent knowledge and discretion that will submit the same to his corrupt Affections Fourthly Care and diligence For if a judge be furnished with all the preceeding qualifications yet if he be slothful and do not expedite his Judgment all the former serve to little purpose for qui diâ— distulit diâ— noluit My Lord St. Albans (b) Essays though he fell as before I have noted under great censure yet in his Essays tells us that a Judge's Office is Jus dicere non Jus dare that they ought to be more wise than witty more reverend than plausible more advised than confident and above all things that Integrity was their Portion and proper Vertue The unjust Judge being a Capital remover of Land-marks Injustice making Judgment bitter and delay sowre Another famous (c) E. of Clarendon's Survey p. 125. Chancellor whose unexpected exile after he was raised to the happiest Estate of a Subject may teach all to judge no State of Felicity assured upon Earth tells us that Judges are presumed by Education to be fitted for the understanding of the Laws and by their Oaths bound to judge according to Right and so must be the most competent to explain the difficulties of the Law which no Soveraign as Soveraign can be presumed to understand and comprehend and that the judgments and decisions those Judges make are the Judgment of the Soveraign who hath not qualified them but Authoritatively appointed them to judge in his stead and are to pronounce their Sentence according to the reason of the Law not the reason or will rather he means of the Soveraign But now I proceed to other matters The Long Parliament impeached all the Judges that had voted the legality of Ship-mony The Long Parliaments Impeachment of Judges as also brought to their Bar the Lord Chancellor that thereby they might strike a greater terror on the Kings Loyal Subjects especially in the House to make them comply with them and though they would have had the Power of nominating and removing the Judges and have rent that branch of his Royal Prerogative from him yet they not trusting if they effected this that it would do them any service when they had put in such Judges as they liked if the King might still Commissionate them according to old form pro beneplacito Therefore they pressed hard They would alter pro beneplacito that every Judge should continue quamdiu se bene gesserit which I only note to show they were desirous to new model the whole Government As the long Parliament of 1641. by their dissolving of Church-Government gave birth to varieties of Opinions The Long Parliament endeavours to weaken the King's Prerogative Schisms and Heresies in Religion so by their design of unloosening mens Obligation to the Monarchy they were forced to make use of many false Inferences and Judgments of the known Laws Amongst which one was when they were beaten off from the several pretences of having some Paramount Power over the King whereby he stood obliged to resign his reason to their Votes they alledged that since the King could not reverse a Judgment given in an inferior Court a fortiori he could not frustrate their Votes being the Supreme Court as well as Council In Answer to which it is to be considered How Judges in their Judgments sustain the Person of the King that in other Courts the Judges sustain the Person of the King the Law is deposited in the hands of the King and all Justice is administred by him and in his name so that his consent is by Law involved in what by Law they
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
in the Authors in the (o) Sir Edw. Coke 4 Inst Ryley's Appendix p. 521 c. 537 563. Margent the exact Abridgment of the Record of the Tower Tit. Justices of Peace and Prynne's Irenarchus Redivivus The constituting and making of Justices of Peace is inherent in and inseparable from the Crown as appears by the Statute 27 H. 8. c. 24. (p) Dalton c. 3. Some are Justices by Act of Parliament as the Archbishop of York Bishop of Duresm and Ely and their Successors others by the Kings Charters as Mayors and other Officers of Corportion Towns Others are by Commission which are properly Justices of Peace to take care not so much of the publick Discipline and correction of manners as for the Peace and security of the High-ways they being at their Quarter-Sessions to hear and determine of Felons Breakers of the Peace Contempts and Trespasses to suppress Routs and Tumults restore possessions forceably entred c. They (q) Sir Tho. Smith's Commonwealth part 2. c. 22. Who are chosen to be Justices of Peace are elected out of the Nobility Knights Esquires and Gentlemen and such as be learned in the Laws such and such number as the Prince shall think meet and in whom for wisdom and discretion he putteth his trust being mostly Inhabitants within the County saving that some of the High Nobility At the King's Pleasure and chief Magistrates for honour sake are put in all or most of the Commissions Those have no time limited but by Commission from his Majesty alterable at pleasure Much increased in number At first they were but four after eight and now thirty or forty in a Shire either by increase of riches learning or activity in Policy and Government more being found than anciently who have either will or power or both to do their King and Country service and they are not too many to handle affairs of the Commonwealth especially for the benefit of the Subject For the better distributing of Justice that they may have in all parts of the County one or more not very remote to apply themselves to The Faults they may punish Each of them hath Authority upon complaint to him made of any Theft Robbery Manslaughter Murther Violence Complots Routs Riots unlawful Games forceable Entries Excess in Apparel Conventicles evil order in Ale-houses and Taverns of Idle and Vagabond Persons Masters and Servants not observing the Laws Rapes false Moneys Extortions or any such Disturbances of the Peace quiet and good order of the Shire to commit the Persons supposed to be Offenders to the Prison and to charge the Constable or sheriff to bring them thither and the Jaylor to neceive them till the next Quarter-Sessions when the Sheriff or his Under-Sheriff with his Bailiffs be to attend him at their Sections where Informations are given in to them by Bill which is shown to the Juries and if they find just cause for the complaint they find the Bill and the Party is Indicted and Tryed by a Jury of twelve men at the Kings Suit for the King is reckoned the one Party and the Prisoner the other They are also to order the repair of Bridges High-ways the Poor the lame Souldiers pensions and do many things besides according to the Power given in their Commissions which particularizeth all things they are to take Cognizance of sometimes upon suspicion of War to take care for the order of the Shire and sometimes to take Muster of Harness and able men Once in a year or two the Prince with his Council Instructions given to Justices of the Peace saith a Manuscript I have seen chuseth out certain Articles out of Penal Laws made to repress the pride and evil rule of the People and sends them down to the Justices willing them to meet together and consult among themselves how to order the matter most wisely and circumspectly whereby the People might be kept in good order and obedience according to Law and they after a certain space meet and certify the Prince or his Privy-Council how they do find the Shire in rule and order touching those points and all other disorders There was never saith Sir Thomas Smith (r) Part 2. tit Juslices of Pearce in any Commonwealth devised a more wise a more dulce and gentle How beneficial the Institution of Justices of Peace or more certain way to rule the People whereby they are kept always as it were in a Bridle of good order and sooner looked to that they do not offend than punished when they have offended for seeing the chief Persons of Quality and Interest among them have such charge and Authority given them by the King and if occasion be do commit cause to be Indicted and punished or sent to Prison for disobedience Offenders against the Laws It curbeth and terrifieth Offenders so that it is a new Furbishing of the good Laws of the Realm and a continual repressing of Disorders which the Common sort of People are too prone to if it were not for this impending lash which every where is held over Criminals The Law it self as registred and printed is but a dumb and dead thing the Ministers of the Law are those that give life to it and for that end were Justices of the Peace Constituted who being Gentlemen of Interest and parts are the fittest Instruments to see the Laws duly Executed They are principally concerned in seeing to the Execution of several Laws which are Committed to their Charge and it is greatly advantagious to the Country that at every Quarter-Sessions in the face of the Country one of the Justices of the Peace gives a charge to the Jurys wherein with learning and Judgment he acquaints them with the Excellency Antiquity and Utility of Monarchical Government the usefulness of those Laws Wise and Gracious Princes have granted to their Subjects the excellent Composure Contexture and Harmony in the Government and many other particulars fit for them to know as good Subjects and good Neighbours Having met with some Speeches made in Queen Elizabeth's time which relate either to Justices of the Peace or the Execution of Laws in general I think it may not be unacceptable to the Reader to understand in what manner that Queen caused her Chancellor to quicken the execution of the Laws Some touches of which follow (s) MS. Speech to the Justices Itinerant Anno 1559. The Conservation of Peace their principal Charge By the Conservation of Peace and Concord every Commonweal hath a perfect Foundation to begin marvelous good course to increase a strong Pillar to sustain it and a strong Buckler to defend it The plain and good order of each County consisteth in the well or evil Executing of Justice for thereby either every man enjoyeth his own and the whole Commonweal is in a calm and even Temper or by remisness in Execution the Free-Booters and Beasts of Prey are let loose to rob and despoil some and affright
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
they were Lords of Mannors where they had their Courts as likewise they were Hundredaries c. CHAP. XXXV Of the Kings Soveraignty in making War and Peace THE great (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. Polit. c. 7. Philosopher observes That in a Common-wealth that part is most powerful in which the strength of War consists and which is in possession of Arms for those he saith that have no Arms are the Servants of the Armed Plato (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 12. de LL. Power of making War and Peace the greatest Badge of Sovereignty affirms it as a standing Law That he who without Authority innovates a Peace or makes War shall be adjudged to punishment and gives this reason for it That he who hath in his Hand the Militia it is in his Power that the Commonwealth subsist or be dissolved Bodin makes this one of the greatest badges of Soveraignty because without the power of declaring War and making Peace no Prince can defend himself or his Subjects the Establishment or Destructon of the States depending upon it therefore it is Capital to do the least thing in that kind without the Kings Commission There being nothing more dangerous in War than to betray Counsels it is not fit the ordering of War and consequently of Peace should be in any but the Soveraign In the Greek and (c) Clapmarius de Jure Majâ—statis lib. 1. c. 10. Latin Histories it appears that all Wars were undertaken and performed by the Counsel Will and Pleasure of the Soveraign whether Senate or Emperor and by them solely was decreed unless in some extraordinary Cases that the Peoples consent was required in comitiis Populi centuriatis and when the Republick was changed by the Julian Law it was Treason to make War without the Command of the Prince the words of the Law being Nulli nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuetur The reasons why this Power should be in the Soveraign solely are many and just for without it no Prince can provide against intestine Seditions For if he wanted that Authority Reasons why this Power should be in the Sovereign alone to make War and Peace as often as Ambitious or Seditious Men perswade the People they were in danger of Oppression by the Government or they had a mind to remove great Officers that they might enjoy their places or that the Rule in Church or State did not please them They might resort to Arms to the ruining of their follow Subjects who would otherwise live peaceably and dutifully By this liberty greatest Convulsions would be in the Kingdom upon every predominancy of ill humours and we should never be without the Plague of War in one place or other and all the miseries of a torn dis-joynted and mangled confusion would be upon us neither should a Prince be able to defend his Subjects from Foreign Invasions or perform that great and necessary Work of assisting the Allies to his State and Te formidable to his Enemies Polybius (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. O. notes That there are two things which preserve Government viz. Fortitude against Enemies and Concorâ—â—â— home but neither of these can be performed if the Prince have not the disposal of the Militia This is it which preserves the Kings Authority makes his Laws to be observed keeps the Factious and Seditious at quiet gives repute abroad and Peace at home All the Calamities of War are prevented when an Armed Prince that hath the sole disposal of his Military Power can extinguish the Flame at its first blaze therefore St. (e) Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi belli auctoritas atque consilium penes Principes sit Augustinus contra Faustum Austin saith That the natural order of Mortals accommodated to Peace requires this That the Authority and Counsel of making War be in the Prince That in the time of the Saxon Kings the Power of the Militia was in the Crown doth not obscurely appear in all the Laws for preserving the Peace and in that particularly I have instanced in of King Aethelstan besides which we find the Tenth Law of King Canutus ordained That Fenced Towns Burghote Brighote beonon forth scip forthunga aginne man georne frythunga eac swa a th one thearf sy for â—e men licre neode LL. Canute 10. or Burghs and Bridges be repaired and there be preparations for defence both of Land and Sea-Forces so often as the necessity of the Commonweal requires it The 69th Chapter of Hereots runs thus Every Earl to pay Eight Horses whereof four with Saddles and four without Saddles four Helmets and so many Coats of Mail eight Spears and eight Shields four Swords and twelve Mancusae of Gold and a principal Thane half the number and other Thanes a lesser proportion as may be there seen By which there seemeth some beginning of a Feudal Tenure which in William the Conqueror's time was so settled that as elsewhere I have noted all Persons held of him their Lands in Knights Service to be ready at his pleasure with Horse Men and Arms the which was practised in succeeding Ages The Statute 30. Octob. 7 E. 1. saith That it being accorded of late that in our next Parliament Provision should be made that in all Parliaments Treaties and other Assemblies which should be made in the Realm of England for ever that every man shall come without all Forces and Armors peaceably to the Honour of us and the Peace of us and our Realm Now all Prelates Earls c. have said that to us it belongeth and our part is through our Royal Signiory to * i.e. forbid defend force of Arms and all other force against our Peace at all times when it shall please us and to punish them which shall do contrary according to our Laws and usages of our Realm and hereunto they are bound to aid us their Soveraign Lord at all seasons In 3 Ed. 3. (f) Cap. 2. the Commons decline the having Cognizance of such matters as guarding the Seas and Marches of England but refer it wholly to the King and 25 E. 3. it is High Treason to levy War against the King or aid them that do it Also the Statute of (g) 11 H. 7. c. 18. H. 7. saith Every Subject by duty of his Allegiance is to serve and assist his Prince and Soveraign Lord at all seasons when need shall require There is nothing more indisputably owned by all that understand the Laws than that it was High Treason by the Common Law before the Statute of 25 E. 3. for any Subject to levy War within the Realm without Authority from the King it being one of the Rights of Majesty Badges of Supreme Power and incommunicable Prerogatives of the Crown saith my Lord * 3 Instit c. 9. Coke and with him consent all the long Robe In a Speech in the Star-Chamber to
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
better Condition though Gentiles than the Christians under the Romans or that it is derived from Gens I am more inclined to be of the latter Opinion finding it more agreeable to the common Use For Cicero (b) In Topicis calls those Gentiles qui ex eadem Gente Ingenui qui nunquam Capite sunt diminuti Gens consisting of a multitude which have sprung from one Generation and of many of these Gentes consists a Nation to which agrees that of (c) Gentilis dicitur ex eodem genere ortus is qui simili nomine appellatur Festus ad Verbum Festus that Gentilis is one born of the same Gens or Kindred and who is called by the like Name So we find the Horatii the Corvine Julian Flavian Family c. So the Greeks use the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one nobly descended from great Parentage So 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was Nobility which (d) Polit. lib. 4. c. 8. lib. 5. c. 1. Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Antient Wealth and Vertue or the (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Theod lib 2. c. 5. Dignity of the Ancestor The first Authors of it being stiled famous Men and Honourable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the largest acceptation of the Word as it is now used saith the judicious (f) Tiles of Honour p. 852. Selden it denotes one that either from the Blood of his Ancestors or the Favour of his Sovereign or of them that have Power from the Sovereign or from his own Vertue Employment or otherwise according to the Laws and Customs of Honour in the Country he lives in is ennobled made Gentile or so raised to an eminency above the Multitude perpetually inherent in his Person These are stiled the Nobiles minores for distinction sake The use of the word Nobilis the word Nobiles being now appropriated to those of the higher Rank The ancient use of Nobilis especially before the Roman Monarchy was such that it was justly given to none but him that had Jus imaginum or some Ancestor at least that had born some of the great Offices or their Magistratus Curules as (g) 〈…〉 1. cap. 19. Censorship Consulship c. From whose Image kept he had the Jus Imaginum Therefore the preceding Ancestor was called novus Homo or Ignobilis Some Ages after the Romans were under a Monarchy the Title of Nobilis was given to such as by the Emperors Patents of Offices or their Codicilli Honorarii were first raised out of the lowest Rank After that Arms of Ensigns of Distinction born upon Shields grew to be in may Families Hereditary which was about four hundred Years since as Sir Edward Bish in his Aspilogia avoucheth it came into frequent use that he who was either formerly ennobled by Blood or newly by acquisition either assumed or had by Grant from his Sovereign or those deputed by him some special note of Distinction by Arms also to be transmitted with his Gentry to his Posterity Yet (h) 〈◊〉 Mr. Selden notes that in the Proceedings in the Court of Chevalry betwixt Reginald Lord Grey of Ruthin Plaintiff and Sir Edward Hastings Defendant concerning the bearing of a Manch Gules in a◠Field Or in the depositions taken in the Moote Hall at Bedford it is recorded that John Botiler of the County of Bedford and Roger Tenstal Mayor of Bedford having been the Plaintiffs Servants severally deposed Il est Gentilhom d' Auncestrie mas nad point d' Armes Gentlemen without coats of Arms. That he was a Gentlemen of antient time but had no Arms. But I shall pass from this That which I desire the Gentry to observe is Advice to the Gentry That they are the Seminary of our greater Nobility and that from Loyal Wise Learned Valiant and Fortunate Persons of their Order in all Princes Reigns the Nobility have sprung Therefore as some of them are derived from as numerous Ancestors as any in other Kingdoms and have by Hereditary Succession greater Estates than many foreign Counts and as they desire either to conserve the Repute their Ancestors have honourably entailed on them or to transmit them to their Posterities so it will be their Interest and Glory to accomplish themselves in all sorts of useful Learning whereby they may be Serviceable to their King and Country There are Bodily Exercises they should be well skilled in as Fencing Riding the great Horse and all Military Exercises to enable them to serve in the Militia of the Nation and their diligent perusing all sorts of History and the Laws of the Land will fit them for the managing of Civil affairs and dispensing the Kings Laws as Justices of Peace Sheriffs Commissioners Representatives in Parliament as also for the greater Offices of State Since they are born to large Patrimonies and thereby have a more generous Education and derive a more refined Spirit from their Ancestors they can with infinite more Ease enter into publick Employment having none of those sinking (i) Hand facile emergunt quorum virtutibus obstat Res angust a domi weights of Poverty and mean Education which enforce others to use extream Diligence e're they can mount the first half Pace the Gentleman is seated on by that time he leaves his tutors It is true the Priviledges of the Gentry of England properly so called are not so great as in some Countries where they have power of Life and Death over their Servants or are exempted from Taxes and enjoy other Immunities which are denied to the Commons yet they have others as beneficial in that they make up a great share of the Ministerial parts of the Government It is required by God and their Prince that they should so deport themselves as they may be singular (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio lib. 2. Examples to their Tenants and Neighbours of Wisdom Temperance Justice Loyalty and all the System of Vertues and by a generous Hospitality without Debauchery preserve their Interest in the affection of their Neighbors and that the Poor may daily and zealously pray for them being made the Voiders and receiving the Sportula of their plentiful Tables By this way of living they will sow among their Neighbours the Seeds of all useful Vertues and enrich their Countries and be able in time of need to serve their Prince with their numerous Dependants It is for the use of the blooming Gentlemen I write this The more sage and ancient need only such Intimations to refresh their Memories I have made Observations how fatal it hath been to themselves and the whole Kingdom when the Gentry have been seduced to sleight at first and after as they have been wrought upon by Designers to over-awe or overturn the Government and either by Piques among themselves or Aemulations Envies and Discontents have been brought into the Combinations and Conspiracies with those who under the specious Pretences
Representatives using all their industry to make the Subjects believe they were the only Patriots and Liberators They pass Votes conformable to the Petitioners desire animate them to search for more and especially to fix them upon Persons they were mindful to remove out of places of trust Then they begun to impeach several Ministers of State and the Judges that they might weaken the King in his Councils and terrifie others into compliance always taking care to charge the misdeeds upon the Kings evil Counsellors magnifying the Kings Natural Goodness and declaring That if he would consent to redress those Grievances and to punish the Authors they would make him a richer and more glorious King than any of his Predecessors Seditious (t) Address Pamphlets daily came out and the Printing-Press laboured Night and Day to abuse the King and his Ministers and bring the Government Ecclesiastical and Civil into obloquy Their Preachers in the mean time like so many Demagogues plied their business so effectually blowing the Trumpet as they phrased it for the Lord and Gideon that by them the Houses Interest prevailed every where especially in the Populous City which was in a manner wholly at the Houses devotion Having removed the Great and Noble Earl of Strafford by great Industry and Art and the Midwifery of Tumults and got themselves by as strange an Art as oversight perpetuated they set themselves to Remonstrate in which they odiously recount all the miscarriages as they called them in the Blessed Kings Reign charging him though covertly with them and all the very Misfortunes of his Reign They revive the Bill against the Bishops sitting in the House of Lords which had been rejected and in a Parliamentary way ought not again to be set on foot that Session the better to effect which they cause the Rabble and their Confederates to menace and assault them and other Loyal Members of the House they Post up several names of Lords and Commons who opposed their proceedings and having driven the King and his whole Family away by most outragious Tumults they declare their Ordinances to be binding during their sitting and assume the Power of interpreting and declaring what was Law and by all these Arts they brought the People not (u) Culpae vel gloriae socii Tacit. 3. Hist so much to joyn with as to conspire with them Then they pretend a necessity of putting the Kingdom into a posture of defence to secure it against Popery and Arbitrary Government and the Invasion of Foreigners which they pretend were to be brought in to assist these They single out the most confiding and daring in every County to be their Commissioners of the Militia so (w) Quanto quis audacia promptior tanto magis sidus rebusque motis potior babetur Idem 1. Histor much as every one was forwarder in boldness and more hardy by so much the more he was to be confided in and sitter to help forward the turbulent work they were about Having first got the Peoples affections to revere them as their Deliverers they the more easily obtained their Bodies Armour and Moneys and so prosecuted a Rebellious War openly yet with that shameful pretence that they were fighting for the King against his Evil-Counsellors and amongst hands court him with most Dethroning Propositions and success Crowning their arms they wholly destroyed that Monarchy they had all along pretended to establish upon surer foundations for the Honour of the Crown and benefit of the People than former Ages had known Instead of which they made themselves Masters of all their Fellow-Subjects seizing their Estates Imprisoning and Murthering their Persons altering the established Ecclesiastical Government and all the fundamental Laws enriching themselves and over-awing the Kingdom by a standing Army Thus I have drawn that in Miniture which was the Tragedy of many Years and the Subject of numerous Volumes and I shall tack to it something parallel in later Years to let all Posterity see what a Characteristick Mark it is of Turbulent and Factious Inclinations when Petitions against the Will of the Government are violently promoted The great mischief of tumultuous Petitions being considered by the Loyal Parliament The Act against Tumultuous Petitions upon the late Glorious King 's happy Restauration Provision was made that the number of deliverers of Petitions should not exceed ten that three of the Justices of Peace in the County or the major part of a Grand Jury at an Assize or General Sessions or in London the Lord Mayor Aldermen and Common-Council have the ordering and consent to such Petitions which shall be for alteration of things established by Law in Church or State by way of Petition Complaint Remonstrances Declaration or other Address to the King or either Houses of Parliament It cannot be forgot in the interval of a later Parliament how zealous and busy multitudes were to get Petitions with Hundreds and Thousands of Hands to the late King for the sitting of a Parliament before the King in his Wisdom thought sit This occasioned the King to issue forth a Proclamation against tumultuous Petitions and other Loyal Persons to express an abhorrence of such Petitions that would press the King to precipitate their Sitting Those that petitioned the King for convening of a Parliament could not but foresee the ungratefulness of such Petitions to the King yet the Designers gave it not over for they had other Ends. As first to engage Men by their Subscriptions to be more fast to them Secondly to try whether the People might be brought to Tumults Thirdly to incense the People more against the Government if their Petitions were denied Fourthly to shew in terroreon the number of their Adherents Fifthly That through every County the confiding and zealous might be known each to other and Lastly that whenever that Parliament should sit they might have their Thanks and by their Numbers the Parliament might be encouraged to proceed in such things as they desired knowing hereby the Strength of the Party When the House of Commons met nothing was so much clamoured against as the Proceedings upon the late Proclamation as if all the Liberties of the Subjects of England had consisted in this Therefore they vote that it ever hath been the undoubted Right of the Subjects of England See the Votes to Petition the King for the Calling and Sitting of Parliaments for redressing of Grievances and to traduce such Petitioning was a violation of Duty and to represent it to his Majesty as tumultuous and Seditious was to betray the Liberty of the Subject and contribute to the design of subverting the Legal ancient Constitution of the Kingdom and introducing Arbitrary Power and so a Committee called of Abhorrence was appointed to enquire of all such Persons as had offended against the Rights of the Subjects This was it that explained their Vote for all the Controversy was Whether a sew private Men might agree upon a Petition then send Emissaries abroad to
The Advantage of Hereditary Succession in Private Families Aristotle's Opinion Philosopher dividing Kingly Government into four kinds as I have before instanced allows all to be Haereditary except the Aesymnaetian which was Elective and since in many places he affirms Kingdoms to be more durable than Commonwealths we may conclude that the fundamental cause of that duration is the Lineal Succession We experience in private Families where a long Series of Ancestors have transmitted Inheritances to Posterity how by the settledness and encrease of their Estates their alliances and the Employments they have had in their respective Ages they have acquired Honour Renown Interest and Stability that not only a greater Respect is payed to them than to others of a later Rise but they are thereby enabled upon many accounts to manage publick or private affairs with more sure success and repute than those than have not acquired such a nodosam Aeternitatem (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repub. l. 3. c. 11. Aristotle makes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or natural Love of Parents to their Children to be one reason of the Succession of Sons to Fathers in their Kingdoms thence he makes it improbable that they who have obtained the Soveraignty should not deliver it to their Children because it would discover a Vertue beyond the ordinary Elevation of humane Nature to prefer the Benefit and good of the People by leaving them the Liberty of chusing upon every avoidance the most worthy if such a Prince's Son appeared not so rather than to establish the Principality in their own Family (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pâ—ly 〈◊〉 lib. 6. p. 455. D. Edit Wickl 1509. Several Reasons why Succession is to be preferr'd before Election Polybius speaking of Kings being most eminent for Wisdom Polybius his Opinion Justice and Valour whereby they drew the People to reverence them and consequently to submit themselves to their Conduct and Command saith That the Son having his education under such a vertuous wise Father whereby he had been present with him when affairs of the greatest Importance had been debated in common presumption was judged to be better capacitated to govern than any of a strange Family and so none would envy him his dignity but all readilier judged him the fittest to succeed And there is good reason to consider the cause of it for Government is an Art not easily attained to and by the unskilfullness in the proper Rules and Maxims the wrong Applications the Ignorance in pursuing the right Methods and chusing fit Instruments the Factious and Populace get advantages to make unfortunate times Therefore those Monarchs who from their Infancies are trained up and accustomed to Instructions in the Rudiments of Government as they grow up must more readily comprehend them must attain the better understanding of the great affairs and secret reasons of Stâ—â—â— be more quick apprehensive and sagacious in perceiving what is conducive to the common good and what not and so more ready in all publick Dispatches than such who have not been educated with all these Advantages Besides Governours at first must be to seek in understanding the nature of great Affairs so that one may as well expect (c) Dr. Nalson's Common Interest p. 113. a Man taken from the Plough should be able to Conn a Ship and carry her an East-India Voyage as that a Person though of the greatest natural and acquired Parts should at first be fit to Pilot the Government or skilful and dexterous in the steerage of the important affairs of a publick State and as in Republicks it falls out by that time he hath arrived at a competent Skill he must resign his Place and Power to others as raw and unexperienced as he was Whereas Succession in Monarchy doth effectually prevent this Inconvenience and which is of great moment it gives them an Interest and desire of designing well for the publick good safety and security of the People and the opportunity of finishing whatever is well begun For though it have happened by the Succession of a weak or vitious Prince that damage and infelicity have befallen the People yet it is very rare in History that two such succeed one another So we find in this Kingdom that Ed. 1. and Ed. 3. brought as great Honour and Renown to their Countries as their Fathers had Misfortunes and even in such Princes Reigns the Calamities that have befallen their Kingdoms have rather sprung from the Potency of Factions that took the advantage by the weakness of the Prince to bring him to Contempt that they might obtain the managery of affairs than from other Causes For even under such unfortunate Princes if it were not for factious Disturbances the Laws and good Order might during their Reigns conserve their Kingdoms in Peace Whereas in Kingdoms that are Elective The Inconveniences that happen where Right Succession is not observed Competitors and Candidates cause not only great Disturbances and Mischiefs at the Instant as we have infinite Examples when the Roman Emperors were chosen by the Factions of the Senate or Army as also in Germany before the expedient of chusing a King of the Romans and in the Miseries that have befallen Poland but Aemulations and Animosities have been continued for Ages among the prime Nobility and thence it is that the (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Giphanii Comment Philosopher so long since hath ascribed it one of the Principal Causes of the Destruction of a Kingdom when there is Discord in the Royal Family or as his Interpreter saith among the participes Regni as Brethren and Kindred of the Royal Family as (e) In vita Cleomenis Aegidis Plutarch tells us in the Kingdom of Sparta and as Justin gives us an account of the slaughter of Brethren and Kinsmen in the Kingdom of Syria and as it occasioned the Destruction of the flourishing Kingdom of Egypt by the Competition betwixt Ptolomy and Cleopatra and as our Ancestors sadly experienced in the Civil Wars betwixt the Houses of York and Lancaâ—â—â— and France in the Faction of Orleance and Burgundy and of later Date in the Kingdom of Hungary betwixt King John and the Emperor Ferdinand If therefore such Calamities befal Countries where Factions ruine their Peace how much more shall we judge the miserable Confusions will be when any shall challenge a Power to make a Breach in the Royal Chain of Succession especially when we find even at Rome upon the Election of the Pope by custom the People plunder the Pallace of the Cardinal who is elected Pope and since that outrage is committed where such an one is chosen as is owned by so great a part of Europe to be Christ's Vicar we are not to wonder that at the Death of the Ottoman Heir the Janizaries and Soldiery rifle and plunder Jews and Christians and cease not to commit all manner of Outrages till the new Grand Signior by his
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
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.
Judges Justices (l) cap. 33. of Peace and their Sessions Of the Kings Soveraignty in making (m) cap. 34. War and Peace Concerning (n) cap. 35. raising Money upon the Subject and obligation of Subjects to supply the Soveraign Having thus dispatched the particulars that more immediately relate to the Soveraign I come to the Subjects and first discourse (o) cap. 36. of the Nobility Then of the (p) cap. 37. Gentry and the (q) cap. 38. Commonalty Then of the disposition (r) cap. 39. of the Common People Next of the Subjects obedience (s) cap. 40. Which last leads me naturally to discourse of the contrary viz. (t) cap. 41. Faction and Sedition and the causers and causes of them under Ten several heads Then of the signs (u) cap. 42. of them Then of the (w) cap. 43. Prognosticks of Faction and Sedition After which I pass to the Remedies (x) cap. 44. of Faction and Sedition Then of the Preservatives (y) cap. 45. against Sedition and Faction and Lastly of Conspiracies (z) cap. 46. and Rebellions In all which I have endeavoured to divert the Reader with variety of History The Authors Apology for himself and Quotations out of such most approved Authors as I judged most suitable to my Design and would be most grateful to the Reader whom I desire according to my poor Talent to please as well as instruct and have chosen rather to give him the Authorities I use in their own Language and thereby be just to the Authors than to follow the way of many Writers in this Age who though they take the Notions and Hints from such as have writ before them yet by varying Expressions and new-wording things more Modishly their Writings pass for Originals Because I design this Work principally for the Nobility and Gentry as well as the Learned of all Ranks I have judged it a duty incumbent upon me to give them the Greek and Latin Quotations whereby they may be excited to peruse such Authors as have been valued in all Ages and lest some might complain of the interruption by them of the continued discourse I have mostly placed them in the Margent upon which they may cast their Eye only when they please And though the whole may look more like a piece of Mosaic Work than a beautiful Picture to be viewed uno intuitu yet I hope the Ingenious Reader will find that as I have bestowed some pains in disposing and placing the Gems and Stones so he will find in the perusal some lively Figures and Images which will bear proportion to the great Leviathan of Government I design to represent and though I cannot pretend to heighten and enrich all things with floridness of Language yet he will find something to commend it as a Country piece where it received its first and last hand Mr. Hobs having adorned the Frontispiece of his Leviathan with the figure of a Giant 's Head on all parts of which are swarms of all Orders Offices and Imployments of mankind that are combin'd in Government delineated as the Picts are supposed to have painted their Bodies or Trajan's Column is engraven A Parallel betwixt the Humane Body and Government So I think it not improper to give a rude draught of the Comparison betwixt the Parts and Offices of Humane Bodies and of the great Colossus of Government Sic parvis componere magna The common People I may not unfitly with their Tillage and Labor call the common Digestor like the Stomach that affords nourishment to this great Behemoth the (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. Polit. c. 2. Philosopher telling us that the Husbandman's toyl is for nourishment The Mechanical Traders are the Bowels and lacteal Vessels which transmit the nourishment in the inferiour Belly The Merchants are the Veua Porta The lower Magistrates and Corporate Towns may be resembled to the Glandules and the Viscera that promote the secretion and distribution of the nutritive Juices The Gentry and Yeomanry are the Muscles Ligaments and Membranes which make up the fleshy and robust Parts The wealthy are the fat and plumpy Parts The Learned part of Mankind may be judged the Organs of Sense The Military the Hands and Feet The solid and judicious the Bones that give stability and erectness The Bishops and Judges bear some parallel to the Heart and Liver by whose functions the Religion and Laws are brought to refinedness and a racy Spirit The Preachers and Pleading Lawyers have some Analogy to the Lungs and Midriff which if untainted contribute much to the spiritualizing of the blood The Nobility are the Vital Spirits who by a liberal Education give a generous mien to the whole The Counsellors of State may well be compared to the Brain from whose Spirits the progressive and regular Motions are directed The Laws Spiritual and Temporal Leges a ligando by some are compared to the Nerves and Sinews that bind and fasten together all the Contexture or may be resembled to the Blood which permeates the whole mass and keeps every part from putrefaction The Sovereign is that Forma Informans that divinae particula aurae The Philosophers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the forming Soul the Portion of Divine Spirit and Ubiquitary power that presides and governs all CHAP. II. Of the necessity of Government in general in Families first and after in Societies HAving represented Government by the energy of the Soul in the combination with the Body in individuals The next Idea of it illustrated in Families The first Society of Man and Wife Therefore the Philosopher saith (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Polit. c. 1. There is a necessity to conjoyn those whereof one cannot be without the other as Male and Female for the cause of Procreation To which according to Hesiod (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sit Domusimprimis vxor Taurus arator he adds a servant but supposing in the first beginning there were no men servants born he makes that an Ox as being the usefullest for all the imployments this first joyned couple had use of in Tilling the ground and I doubt not but under that name he includes either all the Creatures serviceable to man or all that Species as Bull Cow Calf and Ox. Therefore the same great Philosopher (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem c. 8. The second society of a Family makes it his first consideration of Government to discourse of the three constituent parts of a Family The first Despotic of a Master over his Servants the second Paternal of a Father over his Children and the third Nuptial which is the Authority of the Husband over the Wife and from hence we may judge that Polybius considered his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 about which a late Author gives a large account Now the Master of the Family according to (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol l. 1. c. 1. Aristotle in
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