(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
Hypothesis could be none when as yet there was no Government and the Contract it self as a bare contract without the help of some Law or other to give it force cannot operate upon any but the Contractors for it can have no cogency upon those that never gave consent thereto I know no other resolve can be given to most of these quaeries but that as it is fabled of Thebes that the Stones that composed the Walls came into their places by the Musick of Orpheus without any Artificer's hand So some cunning and fluent Orator learned above the rudeness of such an age who had signaliz'd himself by many feats of Arms Arts and Skill by which he had got an ascendent over the People and yet so circumspect as to have avoided envy and emulation such amongst them who was most hardy to encounter dangers had most bodily strength to overcome any single person and such as had by degrees worn of the rudeness of his Companions and taught them something of consideration and the use of reason to understand justice and honest dealing and to see the advantages that prudence and a wise head hath over-raw and uncultivated strength not only in deciding controversies and administring Justice but even in providing against and expelling danger Such an one as this might have made himself the head of a Colony but what is this to the Original power of the People Have we not much more reason to judge the rise of Government as I have hitherto inculcated was from primogeniture and by Gods appointment than from any such Chaos or existence of Prae-Adamites or a race of People sprung up none knows when or where To gratifie the insatiable Republican as much as may be let us suppose a Colony or swarm of younger Brothers men that lived poorly in their native Country Women Children and Servants not tied by any preceding Allegiance to a Prince or to have shaken off the yoke or to be banished or freely dismissed by those under whose Government they had been born and to be absolved from all Allegiance and declared manumitted and restored to that absolute freedom which they could claim as the birth-right of mankind that priviledge of nature equally common to every one as the air and light and to enjoy this freedom as an unlimited power to use their abilities as will did prompt and those to pass into an unpeopled Land which no Prince or People laid a claim to Would not every one conclude these were as free to live as they listed as any people under the Sun and to be any ways restrained of this would be very grievous and an Invasion of that right to freedom every one might challenge Yet can it be conceived that these could continue long without the consideration that it was not so delightful to do what every one liked as it would be miserable to suffer as much as it pleased others to inflict or that the powerful could take comfort in that hostile estate wherein he was in continual fears of others mischievous designs against him who had in this imagined state (x) D. Digs Unlawfulness of Resistance p. 3. as much right in any thing as the present Possessor The consideration of this surely would oblige every one to transfer his particular power into one or more hands tying themselves by obligation not to make use of that natural power of resisting the power set over them but to aid him or them when he or they summoned their strength or required their assistance In requital of which submission of private strength the whole Government becomes their Guard whereby they are secured from the dangers of private injuries But can it be thought that any such Governour or Governours would take upon him or them the burthen of spending his whole time in watchfulness anxiety and care for the preserving such a society in peace and the free enjoyments of what they should acquire without having a power to execute impartial Justice upon Offenders in raising forces to suppress any Tumults or Insurrections in rewarding and promoting the inferior Ministers or would yield himself to be accountable to any party of that people who should fancy themselves aggrieved But on the other side to make the Government useful it must be established that every one yield his life to Soveraign Justice to be capitally punished if he transgress such Laws as they had agreed upon to be so inflicted or in lesser offences to yield to proportionable punishments Now if it were to be understood as a tacit Covenant that when ever the Subjects found themselves aggrieved they might re-assume their Power and depose or change their Soveraign every Offender that could engage his Relations or Dependents to back him would be remonstrating and to avoid the punishment especially if Capital would adventure his life in Arms and so defeat the great end and design of Government But further supposing that this People oblige themselves and Posterities by Oaths and other Authentic Bonds to assist the Government against all Disturbers Domestick and Foreign and to be subject and pay all due obedience to the Government and Laws By what justice or reason or pretence of natural Right could they or their Posterity claim a power of re-assumption of that Original Power they had devested themselves of It is manifest that a People may consent to subject themselves to a Soveraign without limitation as appears by the famous (y) Institut de Jure naturali Gent. Civ 56. Vlpian lib. 1. sect De Constitutione Principis Lex Regia among the Romans wherein it is expressed thus Populus Imperatori in Imperatorem omne Imperium suum potestatem transtulit That they transfer to and upon their Governour all the Power they singly or in combination had After which the right of Nature which remains for them innocently to make use of is that freedom not which any Law gives but which no Law takes away Therefore if we consider Men once to have been in such an imaginary State of freedom and after to have yielded up themselves to be subject and thereto tyed themselves and their Posterities in the strongest obligations that can be invented What power can such People now have of substracting their obedience since their Ancestors many Centuries of Ages since and in all successive Generations have either transferred what Power they ever could claim to their Governours or by his Laws and their own consents have bound themselves in fidelity to the Soveraign his Heirs and lawful Successors So that in what Vtopia soever this Doctrine of the Original of Power being in the People and their Power of re-assuming it may be asserted it can have no place in our happy Islands For the Government of England is a successive Hereditary Monarchy declared so by all our Laws so that with us allegations of natural Right have no sort of place our Kings having their Power established by Birth-right by Consent by Prescription and Law
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
adimplere that is On the part of God by the Archbishop he was strictly forbid that he presume not to take this Honour unless he had a resolution to fulfil in work what he had sworn To which the King promised That by the help of God he would in good faith observe what he had sworn In the Fifteenth of his Reign he was forced by the Barons to take another Oath (i) Mat. Paris Hist p. 229 230. Quod sanctam Ecclesiam ejusque ordinatos diligeret manuteneret contra omnes adversarios suos pro posse suo quodque bonas Leges Antecessorum suorum praecipue Leges Edwardi Regis revocaret iniquas destrueret omnes homines suos secundum justa Curiae suae judicia judicaret quodque singulis redderet jura sua Juravit praeterea Innocentio Papae ejusque Catholicis Successoribus fidelitatem obedientiam And that he would make restitution of those things he had taken away by reason of the Interdict This Clause of restoring King Edward's Laws which had been disused from the time of the Conquest being thus inserted in King John's Oath was after inserted into the Coronation-Oath of Edward the Third and so continued The best Account of the Coronation-Oath of King Henry the Third is in (k) Idem p. 243. num 26. Matthew Paris That he swore before the Clergy and People The Oath of King Henry the Third the Holy Evangelists and the Reliques of several Saints being laid before him and Joceline Bishop of Bath reading the Oath which was very little different from that which King John took Quod honorem pacem reverentiam praestabit Deo sanctae Ecclesiae ejus ordinatis omnibus diebus vitae suae and so word for word as in King John's only for perversas consuetudines here is iniquas consuetudines It was in relation to the preceding Oaths that (l) 1. IVt Ecclesia Dei omni populo Christiano vera pax omni suo tempore observetur 2. Vt rapacitatem omnes iniquitates omnibus gradibus interdicat 3. Vt in omnibus judiciis aequitatem praecipiat misericordiam Bract. lib. 3. de Actionibus c. 9. fol. 107. Bracton saith The King ought at his Coronation in the Name of Jesus Christ being sworn to promise these three things to the People being his Subjects First To command and to his power see it performed that the Peace shall be kept to the Church and all Christian People in all his time Secondly That all Ravages and all Iniquities in all degrees shall be by him forbidden Thirdly That in all his Judgments he shall command Equity and Mercy and that by his Justice all may enjoy firm Peace per Justitiam suam firma gaudeant Pace universi None of our Historians mention the Oath of Edward the First that I have met with King Edward the First 's Oath not recorded nor Mr. Prynne Therefore I think it very probable that it was conceived in the same Form as that of his Fathers and Grandfathers That he took an Oath for it is most certain that he took one by the Expressions in sundry of his Prohibitions to the Legates of Popes to Bishops and others in these Words Torpescere non possumus quia exhaeredationem quae statum Coronae nostrae contigit sicut ex Sacramenti vinculo adstringimur pro viribus evitemus ne Coronae dignitatis nostrae Jura depereant studiosam (m) Prynne's Epist Dedicat. to the chird Vol. of Legal Vindication nos debet operam adbibere ad ea manutenenda conservanda eo potius debemus esse solliciti quoad hoc vinculo juramenti teneri dignoscimus adstringi that is We cannot be slothful because we should avoid to our power our dis-inheriting which appertains to the State of our Crown as we are tied by the Bond of our Oath which to maintain and preserve we ought to afford our studious help lest the Rights of our Crown and Dignity perish and we ought the more to be solicitous in this as that we know our selves to be held and bound by the bond of the Oath Hitherto we find nothing of the Vulgus elegerit besides what is mentioned in King William Rufus his promise That he would grant his Subjects a more desirable Law and better than they could chuse which is no ways to be interpreted of such a choice as the Republicans would have understood Our Historians are generally silent what the Oath was that Edward the Second took The Oaths of King Edward the Second and King Edward the Third but it is to be found in the Clause Rolls of the Tower (n) Cl. 1. E. 2. num 10. 1 E. 2. in French thus which I shall render into English as well as I can Also Cl. 1 E. 3. m. 24. dorso SIRE Volez vous granter garder per vestre serement confirmer au People d' Engleter les Leys les Custumes a eux grantes per les Anciens Rois d' Engleter voz Predecessours droitas devotz a Dieu nomement les Leys les Custumes Franchises grantz au Clergie au People par le glorieus Roy Seint Edward votre Predecessure Respons Jeo les grants prometts Sire Garderez vous a Dieu a Seint Eglise au Clergie au Poeple Pece accord en Dieu entirement selons vostre Poair Respons Jeo les garderez Sire Freez or perhaps feres vous faire en tous voz Jugements ovels droit Justice discretion en misericorde verite a vostre Poair Respons Jeo les fray Sire Grantez vous a tenir garder des Leys les Custumes droitureles le quels la Communate de votre Roiaume auras eslu les defenderz inforciers al honeur de Dieu a votre Poair Respons Jeo les grants prometts SIR Will you grant and keep and by your Oath confirm to your People of England the Laws and Customs granted to them by the Ancient Kings of England your predecessors righteous and devout to God and namely the Laws and Customs and Franchises granted to the Clergy and the People by the glorious King St. Edward your Predecessor Answer I do grant and promise this Sir Do you keep to God and his Holy Church and to the Clergy and to the People Peace and accord in God entirely according to your Power Answer I shall keep these Sir Will you suffer to be done in all your Judgments equal and right Justice and Discretion with Mercy and Truth according to your Power Answer I will do it Sir Do you grant to hold and keep the Laws and the Customs that are lawful which the Community of your Realm shall have chosen and defend and enforce these to the Honour of God to your Power Answer I grant and promise them Several Answers have been given to the Objection raised from this last Clause The Oath of King Richard the
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
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-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
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
end but that he might fit man for those Chains and Fetters he hath provided for him depriving him of the greatest glory and happiness that can be attributed to him of Gentleness and Benevolence which is conspicuous in man's Nature and on the contrary making him the only Creature that out of the malignity of his own Nature and the base fear he makes inseparable from it should be obliged for his own benefit and the defence of his Rapine to worry and destroy all of his own kind till they all became yoaked by Covenant of his own contriving never yet entered into by any one man or in Nature possible to be entred into as in due place I shall make appear Supposing however by the Law of Nature every man may defend himself and annoy those whom he hath power over (b) Review of observations p. 20 21. Whatever the state of Nature was yet Government is necessary yet how much more eligible is it to part with that Right and yet to do nothing contrary to Nature when Reason tells us we shall obtain a more excellent good the benefit of Peace and Prosperity in Society which together with Safety and Plenty are what Government aims at The People finding by reason that the good they wanted was not attainable without a Common Protector to administer Justice equally amongst them and the sense of the miseries that would befal them sor want of this made their Routs become Societies The Salus populi in the Constitution of Government being the prime end of it as most agreeable with the joynt Interest of Rulers and People The multitude therefore that do not consider the Reason that made all People commit themselves The reasons why all must quit the state of Nature to submit to Government their lives and fortunes to the trust of their Rulers ought to be convinced that their giving up their Right of defending themselves and subjecting them to Government and restraining their own Arbitrary Wills and yielding themselves to the Conduct of their lawful Superiors will conduce most to the obtaining of that most excellent good the benefit of Peace and Society every one being in less danger of mischief from the rapacious and bloody minded living in Society and under the Protection of the Government than where every one might follow his own Inclinations This also being the chiefest preservation from that Misery and Confusion which Sedition and Rebellion generally blanched with the abused names of Salus populi have brought many Nations to so the Judicious Chancellor (c) De laudibus LL. Angliae c. 14. Fortescue saith that no Nation by its own Consent was incorporated into a Kingdom but that thereby they might Government necessary for Preservation with more safety than before maintain themselves and enjoy their goods from such misfortunes and losses as they stood in fear of Therefore the old (d) Adversus Mathematicos lib. 2. Stobaei Serm. 42. Persians saith Sextus Empiricus for five days together after the death of their King permitted the People to live Lawless that after the Experience of the Slaughter Rapine and other Outrages committed in that short interval they might learn to hold the Government in more esteem Self-preservation and an ardent desire of happiness saith a (w) Nalson Common Interest learned Author are the two Poles upon which all our Natural and Rational desire and aversions move These are the Tutelars and Inseparable Companions of Mankind through all the vicissitudes of Life These are the potentest incentments to Society and Government which not only allure but necessitate the Congress Combination and Cement of Confederacies in Societies for the mutual Preservation and Peaceable Possession of that Happiness all do covet This implanted Love to our selves made all Mortals exercise their best faculties to defend and ensure themselves against every thing they could foresee or fear would be capable of disturbing their felicity the peaceable fruition of which was the upshot of all their desires and appetites which was no ways so likely to be effected as by Union in Government For to be rich and not able to defend our wealth is to expose our selves as a prey and to be safe and poor is to be securely miserable both which are avoided by the benefit of Government Furthermore The Common People not to be ordered without Government if we consider the nature of the common people which make up the gross body we shall find an absolute necessity of Government For as the Orator (x) Cicero pro Planeio observes in the multitude is a great variety and change of opinions they are as unconstant as the weather nothing being so familiar with them as the change of their affections being not led by choice and wisdom to judge of things sed impetu quadam temeritate without Council Reason Discrimination (y) Sallust ad Casarem or Diligence to search the Causes and forecast the Event of things by custom rather than judgment following one anothers sentiments as to their short-sightedness seems most eligible Their Wills and Appetites being no less various than their features and countenances Their actions and designs turning to as divers ends as the desires that guide them are divers so that it were impossible they should continue long together in society and peace or enjoy the benefits desired if there were not some strong tye which holding them united together should draw them all along to the same end When there is no (z) Cum nec Imperii majestas ulla nec Magistratuum aut Curatorum est Imperium Bodinus de Repub. l. 4. c. 1. Government Against Anarchy that which is left is known by the name of Anarchy which is described by Bodinus to be where there is no Majesty of Empire nor power of command in Magistrates or subordinate Officers no form of a City none found to command or obey Of all Governments continues he Tyranny is the worst but of all Tyrannies Omnium deterrima plebis impotentissima potestas ex his tamen omnibus nihil Anarchiae magis pestiferum Idem that of Many is most pernicious and the impotent power of the people is the worst yet Anarchy is the most pestiferous of all This indeed dissolves all into the first confused Chaos where is nothing of order but a jumble of jarring parts every one justiling other out of its place Imagine a person placed upon such an Hill that he might see below him a confus'd multitude various in their Interests and Appetites let loose to the fiery bent of their wills He would be amazed to hear the boisterous clamors and see the strange turmoils and tempestuous tossings of that crowd the desultory actions and all the pageantry of Garboiles before the last down-right counter-scufflle which the sage wisdom of one man if he might be heard would be able to compose Even so it is in Anarchy or whereever the Peoples unbridled will governs (a)
from the military Tribunes and they having the name of Tribunes from the distinction of the Romans into Tribes that they might be distinguished from the military Tribunes were called the Tribunes of the People At (o) Pighius Tyrannofugio first they were only two but after encreased to the number of ten They had power to hinder any Proceedings in the Senate which they thought might prove prejudicial to the Commons At (p) Stadius in Florum lib. 3. c. 2. Eorum Autoritas magis in intercedendo quam jubendo first they had not Authority to enact any new Decrees as afterwards by abusing their Authority and by Connivance they usurped for in old time they sate (q) Pighius ut supra without the door of the Senate whither whatsoever was determin'd within the Senate was sent to them to be perused and if they approved it they subscribed a Roman T for Tribunus When any new Laws were to be proposed the (r) Godwyn's Roman Antiqu. lib. 3. sect 2. Praetors Consuls Dictators Interrex Decemviri military Tribunes Triumviri and Tribunes of the People only had liberty to propose them and they were exposed to view of the People for three Market days and after the Magistrates assembled the People to hear the Law which by the Proponent was pleaded for by an Oration and seconded by others and if not liked it was opposed in the same manner The People being assembled according to the triple distinction of them into Tribes and the division of each Tribe into ten Curiae or Parishes and the Centuries or Hundreds the Assemblies were called Comitia Tributa Centuriata or Curiata Now into a Pitcher were put the names of these several divisions and that Tribe or Centuries Name which was first drawn was called Tribus vel Centuria Praerogativa because they were first asked their Voices and commonly the vote of that was followed by the rest especially in choice of Consuls the Curia upon which the first Lot did fall was called Principium (s) Hubert in Lib. 1. Cicer. Epist Serm. 2. Now while the People were busy in their Lottery if any Tribune of the Commons should intercidere or forbid the Proceeding he might be heard and the whole Assembly was for that time dismissed or if the Consuls commanded supplications to be offered up in behalf of the Emperor or if it fell on some forbidding of Feasts or if any were seized with the Falling-sickness or the Soothsayers found any unlucky Signs upon any of these the Assembly was dissolved otherwise the Law that was approved by the People was recorded being graven (t) Tacit. Annal. 11. in Brass and put in the Treasure house That which was determined in the (v) Sigonius de Jure lib. 3. cap. 1. Parish-Assemblies was called Lex Curiata that in the Centuries Lex Centuriata that which was in the Assembly of the Tribes was not called a Law but Plebiscitum CHAP. VIII The Inconveniences of all kinds of Republic Governments I Shall now consider all these forms of Commonwealths in gross and hope to satisfy the ingenuous and unbiass'd Reader That if a People were in a capacity to chuse their own Government they should have no reason to chuse a Common-wealth rather than Kingly Government much less that they should endeavour to innovate or introduce it where already so Geometrically composed as it is in England both for the glory and benefit of the King and People It is Judiciously noted by a late (a) Nalson's Common Interest c. 3. The Benefits designed in all Societies Learned Writer That the happiness of all Societies principally consists in the securing domestic Peace or protection from foreign Enemies securing to every Member of the Society their particular right and property free from encroachment and oppression or in the equal distribution of Justice to all according to their proportion of Reward or Punishment Through all which heads I shall endeavour to shew that in Commonwealths these Particulars cannot or have not so effectually been secured as in a rightly constituted Monarchy First as to the securing domestick Peace 1. Securing Domestick Peace the very constitutions of Commonwealths requiring many Magistrates of equal Authority subject to the Political Diseases of State Viz. Covetousness Ambition Oppression and Faction and all the Concomitants of these make them more subject to Intestine Discords than Monarchy can be First Ibid. Covetousness in Commonwealths-men causes Discords It must be considered that in all Commonwealth Governments there is a necessity of change of Persons either annually chosen or to be for some few Years duration and all such must at the same time intend the interests of their private affairs separate from the public and there being most tempting Probabilities of a private and particular advantage to be made of all publick Trust where there is Power it is a perpetual Spur to ambitious and selfish Spirits to court such Employments which are like to be serviceable to their Honour or private Fortunes and the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit lib. 5. c. 4. best Men being restrained by their modesty and paucity those that have designs by direct or indirect ways wind themselves into those places and by the rotation knowing they shall not long enjoy them they will improve the time in enriching themselves and connive at others that do so lest they themselves should be called to an account every ones rapaciousness being likelier to be so much the eagerer because he knows it may not come again to his turn to have the Quarry to prey upon Therefore the common interest if it be regarded must be only as it is subservient to these By-ends Thus in our late Republic the great Business even of the zealousest Pretenders to the Public was to enrich themselves and their Confederates as was apparent by the considerable Estates they had even after they had been forced to disgorge those fat Portions of Crown Bishops Dean and Chapter and Cathedral Lands By this observation we may conclude that the constituent parts of this Government being ever like to be such the miserable People must be continually spunged to feed so many greedy Worms and when the Prey grows scarce these Blood-Hounds will be sure to fight who shall get the best Share Besides there must be continual Heart-Burnings and Part-making Factions among them when those that are endowed with (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 7. great Souls or are equal in Fortitude or Vertue have not the eminentest command at least as they judg according to their Worth and Merits By which means some will be carrying things by Arbitrary Power over their Equals as the Philosopher instanceth in Pausanius in Lacedaemon Hanno at Carthage Lysander and Eniadas and the Partheniae who judging themselves equal with those that had rule and being by them slighted and branded with the title of Bastards conspired to have slain the Senate and Optimacy To instance in
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
a se primo essent ordinata Eadmer tells us That when the Archbishop of Canterbury presided in a general Council of the Bishops the King permitted him not to appoint or forbid any thing but such things as were agreeable to his will and by himself were first ordained Also he saith in all his Dominions he would allow no Bishop of Rome to be accounted Apostolic but whom he commanded to be received nor any to receive his Bulls or Breves unless they were first shown to him I have in the beginning of this Chapter spoken something of the Mutations that William the Conqueror made in the Constitution of the Government of England concerning which I shall only note That the Conqueror took all the care that a great Commander and Conqueror of a great Nation could do for securing his Conqests (p) Pictav fol. 197. C. Ingulph 512. a lin 7. What the Conqueror did to secure his Conquest by building Fortresses and Castles within the City of London and placing Norman Garrisons and French Governours or Castellanes in the Castles in the Country and giving them great Estates and carrying the chief of the English Nobility with him as Hostages into Normandy and imposed his Laws as Pictavensis relates (q) Id. fol. 2â—6 a. 207 c. 2â—8 a. b. and though he who was Chaplain to the Conqueror speak of the Conqueror's smooth behaviour to the English ordering things as he saith prudently justly and mildly some to the Profit and Dignity of the City some to the advantage of the whole Nation and other some to the benefit of the Churches of the Land and whatever Laws he dictated he established with excellent reason and adds That no French-man (r) Nulli tamen Gallo datum est quod Anglo â—uiquam injuste fuecit ablatum Idem fol. 208. c. had any thing given him which was unjustly taken from any Englishman which last Ordericus Vitalis omits though in other things he follows Pictavensis exactly yet Pictavensis writing but to the Fourth of his Reign Anno 1070. as is noted by Ordericus we must look upon them as incompetent Witnesses of the severity the Conqueror after used when he had secured his Conquest So that what is urged by some of the Conqueror's lenity and his little change of Laws and Government is to be understood of those times while he was unsafe in his Conquests and doth not so interfere as they would make the World believe How he comported himself after he had secured his Conquest with the assertion of those who from credible Authors speak of his treating the English as a Conquered People For Pictavensis (s) Jure Belli possedit fol. 206. a. saith that he possessed the Country by the rights of War Ordericus (t) Adjutoribus suis inclytas Angliae Regiones distribuit ex insimis Normannorum Clientibus Tribunos Centuriones ditissimos erexit Orderic Vit. 251. Vitalis saith That having circumvented the two great Earls of Mercia and slain Edwin and imprisoned Morcas then he began to shew himself and gave the best Counties of England to his Assistants and of the lowest of the Norman Clients or very mean People he made very rich Colonels and Captains as he particularizes there and in another (u) Fundos eorum cum omnibus divitiis obtinâ—imus Id. fol. 853. place That having overthrown by Force and Arms the English Saxons they obtained their Lands and all their Riches Malmsbury (w) Malmsb. fol. 52. a. num 40. Vix aliquis Princeps de progenie Anglorum esset in Anglia sed omnes ad servitutem moerorem redacti essent ita ut Anglieum vocari opprobrjum saith That there was no Englishman Duke or Bishop or Abbat but Strangers do gnaw the Riches and very Bowels of England So (x) Hen. Hunt fol. 210 b. num 10. About the continuing the English Saxons but changing their Tenures Services c. Hen. of Huntingdon saith there was scarce any Prince of the Progenie of the English but all are reduced to Servitude and Sorrow so that it is a disgrace to be called an Englishman and Gervase of Canterbury saith That he used both Ecclesiastick and Secular Rights or Laws as he pleased tam Ecclesiastica Jura quam secularia sibi usurpavit As to King William's displacing of the Saxons I find in the Transcript of Doomsday-Book that I have for Yorkshire that very many enjoyed the same Lands they did in Edward the Confessors time but I remember no where that I do not find them hold of some Norman Lords which is agreeable to what Dr. Brady writes but I refer the Discourse of those to my Antiquities of Yorkshire if God give me life and ability to publish them As to the Conqueror's changing the holding of Lands here to the (y) Spelman Gloss Feodam Feudal Tenure used in Normandy begun by the Germans Longobards Francks and others and of which something seems to be hinted in the English Saxon Laws all Authors do conclude that the Conqueror brought the exacter use at least of them into England and divided the whole Land into several Knights-fees whereof there are reckoned 700 Tenants in Capite besides Bishops Abbats Priors and great Church-men and the Laws of King Edward that the Conqueror permitted to be used were either most of them Penal Laws from which he got profit or such as are properly his own and were efficacious for the preservation of the Peace and establishment of Government as the 52 55 56 58 59 64. whereof the 55 58 and 59. are Feudal How William the Conqueror brought in his other Norman Laws Dr. Brady in his Preface to the Norman Story hath at large discoursed so that in Justice I must refer the Curious Reader to his elaborate work and to Mr. Selden in his Second Book of his Janus Anglorum Of the Great Councils in William the Second's time IN the Reign of William Rufus we find few Great Councils So that Anselm Archbishop of Canterbury complains (a) Eadmer Hist Nov. lib. 1. fol. 24. lin 8. to him when he was preparing to pass into Normandy that since he was King there had been no General Council of the Bishops nor of several years before so that Christianity was much decayed The first great Council I have met with is that of Winchester (b) Idem fol. 20. num 30. Anno D. 1093. 5 W. Rusi The Contest betwixt William the Second and Anselm This Council is only thus expressed Rex adunato Wintoniae conventu Nobilium without specifying either Ecclesiasticks or Laicks In this Council the King declared Anselm Archbishop and he did Homage to him (c) Idem p. 26. num 10.6 Gul. 2. This Anselm sought leave of the King that he might go to Rome to receive the Pall from Pope Vrban whom the King did not own for Pope but Clement This and some other Matters occasioned sharp words and unkindness from the King to Anselm the King absolutely denying
them exoptabiles leges and that they should have their Woods and Hunting free It is recorded of Henry the First King Henry the First 's Oath that having gathered to London the Clergy of England and all the People he promised them an amendment of the Laws with which they were oppressed in the time of his Father and his Brother lately deceased that he might obtain their (y) Vt animos corum in sui promotionem accenderet good Wills to his Promotion and that they might receive him for their King and Father to which the Clergy and all the Nobility answered * Si animo volenti ipsis vellet concedere charta sua communire illas libertates antiquas consuetudines quae floruerunt in Regno tempore Sancti Regis Edwardi Mat. Paris 250. n. 53. Hist Novel lob 3. p. 55. That if with a willing Mind he would grant them and with his Charter confirm all the Liberties and ancient Customs which flâ—rished in the Kingdom in the time of the Holy King Edward they would consent to him and unanimously consecrate him King and he freely yielding to his and affirming by his Oath that he would do it he was consecrated King the Clergy and People favouring it Eadmerus saith That in ipso consecrationis die bonas Sanctas omni Populo Leges se servaturum omnes oppressiones iniquitates quae sub fratre suo emerserunt in omni sua dominatione tam Dei Lege quam in secularibus negotiis prohibiturum subversurum sposponderat haec omnia Jurisjurandi Interjectione formula per totum Regnum divulgata ire praeceperat and when he was Crowned he granted the Laws recited by (z) Diademate insiâ—nitas has libertates subscriptas in Regno ad exaltationem Sanctae Ecclesiae pacem Populo tenendam concelsit Mat. Paris Hist p. 46. num 40. ult Edit Matthew Paris to be held in his Kingdom for the exalting of the Holy Church and Peace of his People which Laws being at large recited by Matt. Paris may be perused by the Inquisitive wherein he will find how far the old Laws were confirmed and what a Foundation there was laid for Magna Charta Concerning King Stephen (a) Histor. Novel p. 101. b. num 40. Vide Mat. Paris p. 62. num 35. Malmsbury saith King Stephen's Oath That Henry his Brother Bishop of Winchester was a great help to his obtaining the Crown having great hopes that he would follow his Grandfather King William's Steps in the Government of his Kingdom especially in matters of Ecclesiastical Discipline therefore he saith William Archbishop of Canterbury 〈◊〉 exacted a solemn Oath from him of granting and preserving the Liberty of the Church the Oath it self is long and the Immunities to the Church many those to the Laity are conceived in these words Omnes Exactiones Mescheningas Injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo Bonas Leges Antiquas justas Consuetudines in Murdris Placitis aliis Causis observabo observari praecipio constituo Malmsbury saith That the King swore according to the tenor of the Writing he there produceth Dated at Oxford Anno Dom. 1136. 1 Regni I find no mention of an Oath taken by K. H. 2. at his Coronation but (b) Chron. col 1043. num 67. Brompton saith that he confirmed the Charter of his Grandfather King Henry the First King Henry the Second's Oath and that he was sollicitous ut Lex quae extincta videbatur paulatim exsurgeret and Matt. Paris (c) Hist 1080 1081. saith That Anno 1172. he swore before the Cardinals that he would abrogate all the evil Customs introduced in his time against the Church We find that Pope Alexander (d) Gul. Newbrigensis lib. 4. c. 25. Gerv. Dorob Chron. col 1413. Matt. Paris p. 117. the Third Excommunicated several Bishops and suspended the Archbishop of York for his rash Presumption in the Coronation of a new King in contempt of the Archbishop of Canterbury to whose Office of ancient Right it was known to belong and for that in the Coronation according to Custom there was no sworn Caution offered or exacted by them for the keeping of the Liberties of the Church but afterwards (e) Vt Regni consuetudines antiquas sub quibus dignitas pericliâ—bitur Ecclesiae illibatae debeant omni tempore observari Hoveden Annal. pars poster p. 518 519. it is said to be confirmed by Oath that the ancient Customs of the Kingdom from which the dignity of the Church was in danger should inviolably be kept in all time to come The Solemnities of King Richard the First 's Coronation are fully described by the Abbat of Jorval (f) Rectam Justitiam exercebit in populo sibi commisso leges malas consuetudines perversas si aliqua sint in Regno suo delebit bonas custodies Brompton col 1158. num 60. and as to his Oath King Richard the First 's Oath he saith that he swore and vowed the Holy Evangelists and the Reliques of many Saints being set before him that he would bear Peace Honour and Reverence all his Life to God and the Holy Church and its Ministers and then he swore that he would exercise right Justice to the People committed to him and after he swore that he would blot out or abolish evil Laws and perverse Customs if any were in his Kingdom and he would keep good Laws I find that King John took an Oath as Duke of Normandy King John's Oaths that he would defend Holy Church and its Dignities in good Faith without evil Intention and would honour all the Ordained and that he would destroy all evil Laws if any were and substitute good ones the words (g) Matt. Paris fol. 165. ult Edit num 27. are quod ipse Sanctam Ecclesiam ejus dignitates bona fide sine malo Ingenio defenderet ordinatos honoraret quod Leges iniquas si quae essent destrueret bonas surrogaret At his Coronation (h) Quod sanctam Ecclesiam ejus ordinatos diligeret eam ab incursione malignantium indemnem conservaret quod perversis legibus destructis bonas substitueret rectam Justitiam in Regno Augliae exerceret Idem p. 166. num 4. Promisit se per anxilium Dei bona side ea quae juraverat servaturum he took another Oath that he would love Holy Church and the ordained of it and would preserve it indempnified from the Incursions of the Malignant and that the perverse Laws being destroyed he would substiâ— good ones and would exercise right Justice in England Besides these Matth. Paris p. 189. of the Old Edition saith That he was sworn by the said Archbishop ex parte Dei districte prohibitus ne honorem hunc accipere praesumeret nisi in mente habeat opere quod juraverat
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author
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
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
the rest and leave all in unsecurity How can saith he Justice banish (t) MS. Speech at the end of the Parliament Anno 1559. Justices of Peace to be active Enormities when her Ministers are slothful making no account of any of the Common Causes of their Country and under the notion of being accounted quiet men they seek only ease profit and pleasure to themselves and to be sustained by other mens care and labour whereas the Horse-Master provideth for the good Government of his Horse Bits or Brakes according to the hardness or tenderness of his Mouth If continues he in the richest soil the usefullest and delightfullest Flowers The necessity of punishing evil Men. Shrubs and Fruits be planted and no care be taken to weed out what would choak and over-grow them what pleasure or benefit could be had of all ones cost and labour a crop of weeds would soon such out all the nourishment from their roots over-shadow them from the cherishing Sun and smother the curious Plants so that they would soon dye and wither Therefore is there a great need of chusing able careful and active Gardiners to howe and root out all such rank Weeds In another (u) MS. Speech second Parl. 1562. Speech after advising great care in chusing Officers as Justices of Peace c. that have the Execution of the Laws he tells the noble Assembly That sharp Laws should be made for banishing sloth and corruption A Visitation of the Justices of Peace proposed and adviseth there should be through the Kingdom Biennial or Triennial Visitations of all the Temporal Officers and Ministers that ought to see to the Execution of the Law by Commission to try the Offences of those that have not seen to the due Execution of the Laws according to the Office and charge committed to them as in Church-Visitations and that a Roll should be kept See something of this nature 2 H. 5. 8. wherein all the Justices names should be set down to every Offence he hath caused to be punished that it might appear who is diligent and that those that are negligent might be removed to their perpetual Ignominy and such pains set upon them as by Law may be Another time (w) MS. Speech Star-chamber 1568. he urgeth that it ought to be considered whether it be a greater Cruelty to execute the Penal Laws so as thereby a few shall be unwhipped and many hanged or some shall be whipped and thereby few hanged In another (x) MS. Speech second Session of Parliament 1571. I find this swasive It would be strange to make Laws to reform manners and prune away the ill branches and Members of the Commonweal and then to â—ye them in boxes and books it were better to have no Laws than them not Executed for besides other inconveniences it breeds contempt of Laws and Law-makers (y) Idem A Prince continueth he that is careful of the discharge of his great Office leaveth nothing undone meet for him to do for the Execution of the Laws making choice of Persons of most Credit and best understanding through the Kingdom to whom for the great trust he reposeth in them he giveth Authority by Commission to Execute a great part of the Law Therefore the Burthen of all Enormities Absurdities and Mischiefs that grow in the Commonwealth for the not executing of Laws must needs light upon those Persons that have Authority to execute them and if remisness be if the Prince should be driven to commit the Execution of the Laws to those who in respect of Practice and gain would see them executed with all severity what a burthen would that bring to the Realm In this manner Queen Elizabeth caused the Execution of her Laws to be recommended both to the Justice of Assize and to the Members of Parliament that at their recess they might take care to see them put in Execution As a close to this Chapter and an Introduction to the next I shall give a short account of the Laws in the Saxons time that were made by several Kings for the preservation of the Peace and of how great value the due keeping of the Peace was The Sixth Law of King Ina appoints that he that fights in the Kings (z) Cuninges hus Palace shall lose all his Goods and it shall be at the Kings pleasure whether he shall be Capitally punished or not it also ordains several Mulcts of Money for fighting in the (a) Mynster Church in an Aldermans House or the House of a (b) Gefolgylden hus Country-man And the next Law is against Theft and in the 13th against Thieves and Robbers from the number of Seven if they be 35 they are counted a (c) Klothum Troop if more an (d) Herge Army and so in the 26th Law appoints a Reward for apprehending (e) Theoffes onfeng a Thief So in the 46th Law of the Peace violated in (f) Burghbryce a Town of the Kings or a Bishops 120 s. and so proportionable in the Town of an Alderman of the Kings (g) Cyninges Thegnes Minister or any Land-holders (h) Land hebbendes Town So in the 15th Law of King Alfred 150 s. punishment is laid upon his that (i) De gefeohtum fights in the presence of an Archbishop and 100 if in the presence of a Bishop or alderman and in the next against the stealing a Mare or Cow the price and 40 s. Mulct and in the 26th against (k) Mansliht mid blothe Man-slaying in Companies to pay the price of his Head and all present 30 s. a piece and in the 35th against breaking the Peace in a Town as before fore The 38th Chapter is long That no Man assault his Enemy in his House till he hath (l) Aeâ—hon be him ribtes bidde demanded right of him which if he deny he may besiege him seven Days but not (m) Be gefeobte assault the House and if he yield he must keep him Thirty Days and then restore him to his Friends This care was taken to pre\vent Bloodshed There are many particulars besides worth observing in this as well ad the 40th Chapter (n) Be wundum against wounding I shall speak of that of King Edward hereafter The first Law of King Aethelstan is against Theft that is manifest where the (o) The of thâ—at thâ—ebbendse thing stolen is found in the Thieves Hand hand gefangen sy and so of other particulars worth reading The Third Law of King Edmund prohibits any Man-killer to come into the Prince's presence altho' his Servant till he have made satisfaction (p) Aef he on daedâ—ote ga swa Bisceop him Tace his serift him wisâ—ge for the Crime as it is appointed him by the Bishop and he makes Seven particular Laws together against Man-killing those that assault other in Towns holy places c. and the several punishments prefacing these Laws thus That to him and the Clergy
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
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
sought after as the Trumpets and Kettle-drums that call together the whole Array against the Government And if they cannot be dispossessed of that Evil Spirit by gentler means they are to undergo the severity of the Laws which are made against Incendiaries of a Kingdom which is of more dangerous consequence than the firing of a Private Man's Habitation The danger from these Libels are the greater because (g) In civitate discordi ob crebras Principum mutationes inter libertatem licentiam incerta parvae quoque res magnis motibus agebantur Tacit. 2. Hist in times of Faction and the often Changes of Government the People being unfixed fluctuating betwixt Liberty and Licentiousness small Matters are transacted with great Emotions As to Corporations they have all of them been endowed with their Privileges by the Grace and Bounty of the Sovereign from whence all Immunities and Honours do flow The first Institution of them was no doubt Concerning Corporations that Justice might be executed in them for the better governing their numerous Inhabitants that they might be the Places of Traffick where the adjacent Country might be supplied and their Neighbours might vend their Growth and Manufacture And thus being enriched by Commerce separated from their Country-Neighbours by Honours Offices and Liberties something a Gentiler Education might be expected there whereby they might be Patterns to their adjoyning Neighbours of good and vertuous Deportment being exempted from the Jurisdiction of the Justices of Peace and attendance upon Assizes whereby Legal Matters in order to the necessary Administration of Justice are executed in their Precincts by their own Members and many of them besides the Privileges to be found at large in the Statutes and Law-Books have power to chuse as many to represent them in Parliament as the whole County hath It would fill a large Volume to recount the particular Powers and Freedoms have been granted to them by the Royal Favour of the successive Kings of England whereby they are erected into little Commonwealths Therefore there is good reason as they may do much good or harm and they have all the enriching Streams and Conduits from the Sovereign Spring and Fountain so they should have a strict dependence upon the Sovereign that they may not employ those great Privileges against the Laws and Government nor the rich pragmatical Magistrates Citizens and Freemen animate Factions and Seditions against it or presume to obtrude their impertinent Advices upon their Sovereign or by their clamorous Petitions for Redress of pretended Grievances and Male-administration or by their Election of Factious Representatives dispose of the Fate of the Empire as they did in 1641. by their general Combinations with the then Parliament which they so effectually assisted in their Rebellion It is too manifest how little Justice the two last Kings could have in the great Metropolis the King 's Imperial Chamber or in other Corporations although they had all less or more received great Instances of their Royal Favours and Graces And tho' the great City by the late King of Immortal Memory 's Royal Munificence and Princely Care as much as in him lay by Act of Parliament and his own particular Bounty after it was so fatally reduced to Ashes was raised into one entire Palace so beautiful and splendid as all People must acknowledge it the Eighth Wonder yet the grateful Returns were unproportionable This great City enjoyed as ample and beneficial Privileges as any could wish for and though it be deprived of some of them yet by the Munificence of our late and present Sovereign it enjoys what is needful for its well governing in subordination to the Publick Since therefore the Corporations mostly were found to have made ill Returns to their Sovereigns for all their special Graces by a most wise Council it hath been judged fit to enquire by what Warrant they enjoyed those Privileges and to recall those Charters that new ones might be granted mostly with Additions of Privileges only that the Magistrates if they should abuse their Authority might be displaced at the King's Pleasure A most necessary Resumption of Power whereby they might not be in a capacity for the future to give any Disturbance to the Government Elsewhere I have given short Hints of the Practice of former Kings in vacating the Charters of the great City and shall only add what I find in the most Judicious Historian was done in a like Case by the Senate of Rome in Tiberius his Reign The Licence (h) Crebrescebat enim Graecas per urbes licentia atque impunitas asyla statuendi complebantur â—â—mpla pessimis servitiaâ—um eodem subsidio obaeraâ—i adversus creditores suspectique capitalium criminum receptabantur nec ullum satis validum Imperium erat coercendis seditionibus populi flagitia hominum ut Caeremonias Deum protâ—entes Igitur placitum ut mitterent civitates Jura atque Legauos c. Magnaque ejus diei species fuit quo Senatus majorum beneficia sociorum pâ—cta Regum etiam qui ante vim Romanam valuerant decreta Ipsorum numinum Religiones introspexit libero ut quondam quod firmaret mutareâ—ve Tacit. 3. Annal. and Impunities of ordaining Sanctuaries and Privileged Places encreased saith my Author throughout the Cities of Greece the Temples were filled with most lewd Bondslaves in the same were received Debtors against their Creditors and Men guilty of Capital Crimes were protected neither was there any powerful Authority able to bridle the Sedition of the People Villanies were protected no less than the Ceremonies of the Gods Therefore it was appointed That the Cities should send their Agents with their Laws Some by way of Resignation of their Charters freely remitted those things they had falsely usurped many did confide in the Antiquity of their Superstitions and their Deserts to the People of Rome The Pomp of that Day saith the Historian was great in shew In which the Senate for Tiberius had left the Senate a Shadow of their ancient Estate by sending the Requests of the Provinces to be examined by them considered of the Privileges granted by their Predecessors the Agreements with their Confederates the Decrees of the Kings before the Countries became subject to the Romans and the Religion of the Gods themselves to confirm or alter all By which it may appear to be no new thing for Sovereigns to enquire into the Privileges of Cities tho' claimed by Divine Original as many of those were from their Gods or by the Bounties of Princes As to Conventicles the Nurseries of Seditions since the Laws are obvious by which they may be suppressed and that in another Chapter I have treated of them I shall take no further notice of them here being as unwilling that truly consciencious mis led People that endanger not the Government should be severely punished as I heartily wish they would give no Disturbance to it CHAP. XLVI The Preservatives against Faction and Sedition THE general Amulets