OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT As Described Viz. 1 st Upon Aristotles Politiques 2 d. Mr. Hobbs's Laviathan 3 d. Mr. Milton against Salmatius 4 th Hugo Grotius de Jure Bello 5 th Mr. Hunton's Treatise of Monarchy or the Nature of a limited or mixed Monarchy By the Learned Sir R. Filmer Barronet To which is added the Power of Kings With directions for Obedience to Government in Dangerous and Doubtful Times LONDON Printed for R. R. C. and are to be Sold by Thomas Axe at the Blew-Ball in Ducâ—-Lane 1696. Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1. The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Vnderstanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a Touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Council the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Vsage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty days before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and only such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellor tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Council there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Council to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore-rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall be first transmitted hither under the Great Seal of that Kingdom and having received Allowance and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Vsage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader Rob. Filmer A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER Knight I. The Free-holders Grand Inquest touching our Soveraign Lord the King and his Parliament To which are added Observations upon Forms of Government Together with Directions for Obedience
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
had no formal Parliaments till about the 18 th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of his Privy Councel alone And the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after the establishment of the Parliament by colour of it that they had so great Daring If any desire to know the cause why Hen. 1. called the People to Parliament it was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the better to secure himself against Robert his elder Brother he flattered the People with those Charters yea King John that confirmed them had the like Respect for Arthur D. of Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original from Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had first an obscure Birth by Vsurpation was fostered and shewed to the World by Rebellion in brief the King called the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that the Commons were not called to Parliament until Hen. 3. days this appears by divers of the Precedents formerly cited to prove that the Barons were the Common Councel For though Hen. 1. called all the People of the Land to his Coronation and again in the 15. or 18. year of his Reign yet always he did not so neither many of those Kings that did succeed him as appeareth before Secondly For calling the Commons by Writ I find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words In ancient times after the King had summoned His Parliament innumerable multitudes of People did make their Access thereunto pretending that Privilege of Right to belong to them But King Hen. 3. having Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that none might come to His Parliament but those who were specially summoned To this purpose it is observed by Master Selden that the first Writs we find accompanied with other Circumstances of a Summons to Parliament as well for the Commons as Lords is in the 49 of Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these words King Hen. 3. out of a great Multitude which were seditious and turbulent called the very best by Writ or Summons to Parliament for he after many Troubles and Vexations between the King himself and Simon de Monefort with other Barons and after appeased did decree and ordain That all those Earls and Barons unto whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament and no others but that which he began a little before his Death Edward 1. and his Successors constantly observed and continued The said prudent King Edward summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Vnderstanding Also Mr. Cambden in another place saith that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well-Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10 H. 6. Our Lord the King ordained that Knights be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment hath ordained that if any Assault or Fray be made on them that come to Parliament or other Councel of the King the Party which made any such Affray or Assault shall pay double Damages and make Fine and Ransom at the Kings Will. 23 H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8 Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That
and in the 3. Chap. Our Lord the King hath ordained that a Woman after the death of her Husband shall recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord the King at his Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings words are We intending to provide Remedy in our Parliament have ordained c. 28 Edw. 1. c. 5. The King wills that the Chancellor and the Justices of the Bench shall follow Him so that he may have at all times some near unto him that be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We will and Grant 1 Edw. 2. begins thus Our Lord the King willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10 Edw. 2. It is provided by our Lord the King and his Justices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1 Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5 Ed. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10. year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be our Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition put in the said Parliament In the year-book 22 Edw. 3.3 pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1 Ric. 2. hath this Beginning Richard the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of the Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to or Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Rich. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth that His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Rich. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of his Lords and at the special Instance and Request of the Commons hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons in Parliament Assembled and by the Authority of the same hath ordained Unto this King's time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen. 7. Reign which was so well approved that the Petition it self is turned into a Statute It begins thus To the Right Worshipful Commons in this present Parliament Assembled Sheweth to your Discreet Wisdoms the Wardens of the Fellowship of the Craft of Vpholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it Concludes Therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly in the Statutes of Edw. the 6. Qu. Mary Qu. Elizabeth K. James and of our Sovereign Lord the King that now is there is no mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general Terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers days it was punctually expressed in every Kings Laws that the Statutes and Ordinances were made by the King And withal we may see by what degrees the Styles and Titles of Acts of Parliament have been varied and to whose disadvantage The higher we look the more absolute we find the Power of Kings in Ordaining nor do we meet with at first so much as the Assent or Advice of the Lords mentioned Nay if we cast our eye upon many Statutes of those that be of most Antiquity they will appear as if they were no Laws at all but as if they had been made only to teach us that the punishments
of many Officers were left to the meer pleasure of Kings The punitive part of the Law which gives all the Vigour and Binding Part to the Law we find committed by the Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners and Bayliffs for concealing of Felonies shall make grievous Fines at the Kings Pleasure Chap. 13. Ordains That such as be found culpable of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoner that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he that shall take Reward for deliverance of such shall be at the Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall make Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they take shall be Grievously punished at the King's pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to treat upon Debates between Vs and certain Great Men it was accorded that in our next Parliament Provision shall be made by Vs and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Vnderwoods and Bushes in High-ways Murder be done the Lord shall make Fine at the Kings Pleasure 28 Edw. 1. If a Gold-Smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by a Ransome at the Kings Pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the Gift of any Subsidy to which the King answers He would confer with the Lords and do what should be best according to their Advice and the last day of Parliament He gave this Answer That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of their Petitions or Knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any ways change the Good Customs and Usages made and used of ancient Times 5 Hen. 4. c. 6. Whereas one Savage did beat and maim one Richard Chedder Esquire Menial Servant to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTEST AS PRINCIPIS NON EST INCLVS A LEGIBVS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. We read of a Restitution in Blood and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regality to grant or deny such of their Petitions as pleaseth himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King our Sovereign Lord calling to his Remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of Him and the Land against every Rebellion Power Might reared against him and with him to enter and abide in Service in Battel if Case so require and that for the same Service what Fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by His Commandment within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against his Rebels and Enemies for the Subduing and Repressing of them and their malicious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Common-wealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He wished not the making of many Laws since the more we make the less liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edward Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Jo. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of Commons which being received by the King part He received part He put out and part He ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been always acknowledged for Laws and Statutes We have
Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where the King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicit Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lye at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Justice and Discretion in Mercy and Truth in all His Judgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Judgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the Assenting unto or granting any new Laws but of holding protecting and strengthening with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom it would not make him a King nor give him Power to make one Law a Negative Voice is but a privative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogism of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The Reason is plain why the Kings Negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Justice of England to the Opinion of him that calls himself an utter Barrister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Justices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of our Lord the King is to be expected seeing it is His part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Judge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Vice-roy of God and that he hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of his People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Jurisdictions c. We Will that Our Jurisdiction be above all the Jurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have Power to yield or cause to be yielded such Judgments as do appertain without other Process wheresoever we know the right Truth as Judges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the Authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lambard puts us in mind of a Saxon Law of King Edgar's Nemo in lite Regem appellato c. Let no man in Suit appeal unto the King unless he cannot get Right at home but if that Right be too Heavy for him then let him go to the King to have it eased By which it may evidently appear that even so many years ago there might be Appellation made to the Kings Person whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of this Realm out of which Law Master Lambard gathers that the King himself had a High Court of Justice wherein it seemeth He sate in Person for the words be Let him not seek to the King and the same Court of the King did judge not only according to meer Right and Law but also after Equity and good Conscience For the Close I shall end with the Suffrage of our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Justitia solius Regis est c. All Justice of the Kingdom is only the King 's and He alone if He were able should administer it but that being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remiss and so oft Wrong instead of Right will be done if we stand to strict Law also Causes hard and difficult daily arise which are comprehended in no Law-books in those there is a necessity of running back to the King the Fountain of Justice and the Vicegerent of God himself who in the Commonwealth of the Jews took such Causes to His own cognisance and left
should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Jurisdictions Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Jurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not only be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the People may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Jurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Justice But he doth not name so much as one Country or Kingdom that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdom that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdoms or no where is such a moderated Government as our Observator means to be found A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern People as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdom the Nobility who have great Authority in the Diets chusing the King and limiting his Authority making his Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his Daughter and the other for his Son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the Book called the Estates of the World doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute power not only of their estates but also of Life and Death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in War Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publick consultations notwithstanding that they had Absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over his Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for his election yet in many things it is Absolute after he is chosen He appoints the Diets at what time and place he pleaseth he chooseth Lay-Councellers and nominates the Bishops and whom he will have to be his Privy Council He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in his power to advance and reward whom he pleaseth He is Lord immediate of his Subjects but not of his Nobility He is Soveraign Judge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs his Subjects which are immediately his with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Jurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place near to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their Authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Council refused his Senators place to become one of these Officers Every Palatine the King requiring it calls together all the Nobility of his Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these Deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to find among them that the whole Community in its underived Majesty doth ever convene to do Justice nor any election or representation of the Community or that the People assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarch The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his
will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not only among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the People there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wenceslaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Council of Nobles nor to choose any Wife without their leaves then it must be said to be a Commonweal not a Royalty and the King but only the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Counselling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot find in any Kingdom but only where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmark I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmark withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of Life and Death over their Subjects without appeal and the King to give no Office without consent of the Council There is a Chancellour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Council and from this Council to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the People or community may assume its own Power if neither of these Kingdoms have most Countries have not nay none have The People or Community in these three Realms are as absolute Vassals as any in the World the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The Election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Council in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdom such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changeable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the People are so far from liberty that he saith Divers particular Lords exact not only Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Judgments THE END THE POWER OF KINGS And in Particular OF THE KING OF ENGLAND THE POWER OF KINGS And in Particular Of the KING of ENGLAND TO Majestie or Soveraignty belongeth an Absolute Power not subject to any Law It behoveth him that is a Soveraign not to be in any sort Subject to the Command of Another whose Office is to give Laws unto his Subjects to Abrogate Laws unprofitable and in their stead to Establish other which he cannot do that is himself Subject to Laws or to Others which have Command over him And this is that which the Law saith that The Prince is acquitted from the Power of the Laws The Laws Ordinances Letters-Patents Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by Sufferance of the Prince following who had knowledge thereof If the Soveraign Prince be exempted from the Laws of his Predecessors much less shall he be bound unto the Laws he maketh Himself for a man may well receive a Law from Another man but impossible it is in Nature for to give a Law unto Himself no more than it is to Command a man's self in a matter depending of his Own Will There can be no Obligation which taketh State from the meer Will of him that promiseth the same which is a necessary Reason to prove evidently that a King cannot bind his Own Hands albeit that he would We see also in the end of all Laws these words Because it hath so Pleased us to give us to understand that the Laws of a Sovereign Prince although they be grounded upon Reason yet depend upon nothing but his meer and frank good Will But as for the Laws of God all Princes and People are unto them subject neither is it in their power to impugne them if they will not be guilty of High Treason against God under the greatness of whom all Monarchs of the world ought to bow their Heads in all fear and reverence A Question may be Whether a Prince be subject to the Laws of his Countrey that he hath
Defended In a well-ordered State the Soveraign Power must remain in One onely without Communicating any part thereof unto the State for in that case it should be a Popular Government and no Monarchy Wise Politicians Philosophers Divines and Historiographers have highly commended a Monarchy above all other Commonweals It is not to please the Prince that they hold this Opinion but for the Safety and Happiness of the Subjects And contrariwise when as they shall Limit and Restrain the Soveraign Power of a Monarch to Subject him to the General Estates or to the Council the Soveraignty hath no firm Foundation but they frame a Popular Confusion or a miserable Anarchy which is the Plague of all Estates and Commonweals The which must be duly considered not giving credit to their goodly Discourses which perswade Subjects that it is necessary to subject Monarchs and to give their Prince a Law for that is not only the Ruine of the Monarch but also of the Subjects It is yet more strange that many hold Opinion that the Prince is subject to his Laws that is to say subject to his Will whereon the Laws which he hath made depend a thing impossible in Nature And under this Colour and ill-digested Opinion they make a mixture and confusion of Civil Laws with the Laws of Nature and of God A pure Absolute Monarchy is the furest Common-weal and without Comparison the Best of all Wherein many are abused who maintain that an Optimacy is the best kind of Government for that many Commanders have more Judgment Wisdom and Counsel than One alone For there is a great difference betwixt Councel and Commandment The Councel of Many wise men may be better than of One But to Resolve Determine and to Command One will always perform it better than Many He which hath advisedly digested All their Opinions will soon Resolve without Contention the which Many cannot easily perform It is necessary to have a Soveraign Prince which may have Power to Resolve and Determine of the Opinions of his Council FINIS AN ADVERTISEMENT TO THE JURY-MEN of ENGLAND TOUCHING WITCHES THE late Execution of Witches at the Summer Assises in Kent occasioned this brief Exercitation which addresses it self to such as have not deliberately thought upon the great difficulty in discovering what or who a Witch is To have nothing but the publick Faith of the present Age is none of the best Evidence unless the universality of elder Times do concur with these Doctrines which ignorance in the times of darkness brought forth and credulity in these days of light hath continued Such as shall not be pleased with this Tractate are left to their liberty to consider whether all those Proofs and Presumptions numbered up by Mr. Perkins for the Conviction of a Witch be not all condemned or confessed by himself to be unsufficient or uncertain He brings no less than eighteen Signs or Proofs whereby a Witch may be discovered which are too many to be all true his seven first he himself confesseth to be insufficient for Conviction of a Witch His eight next Proofs which he saith men in place have used he acknowledgeth to be false or insufficient Thus of his eighteen Proofs which made a great show fifteen of them are cast off by himself there remains then his sixteenth which is the Confession of a Witch yet presently he is forced to yield That a bare Confession is not a sufficient proof and so he cometh to his seventeenth proof which is two credible Witnesses and he here grants That the League between the Devil and the Witch is closely made and the Practices of Witches be very secret that hardly a man can be brought which upon his own knowledge can averr such things Therefore at last when all other proofs fail he is forced to fly to his eighteenth proof and tells us that yet there is a way to come to the knowledge of a Witch which is that Satan useth all means to discover a Witch which how it can be well done except the Devil be bound over to give in Evidence against the Witch cannot be understood And as Mr. Perkins weakens and discredits all his own Proofs so he doth the like for all those of King James who as I remember hath but Three Arguments for the discovery of a Witch First the secret Mark of a Witch of which Mr. Perkins saith it hath no power by Gods Ordinance Secondly The discovery by a fellow Witch this Mr. Perkins by no means will allow to be a good proof Thirdly The swimming of a Witch who is to be flung cross-ways into the water that is as Wierus interprets it when the Thumb of the right Hand is bound to the great Toe of the left Foot and the Thumb of the left Hand to the great Toe of the right Foot Against this Tryal by water together with a disability in a Witch to shed Tears which King James mentions Delrio and Mr. Perkins both argue for it seems they both writ after King James who put forth his Book of Daemonologie in his youth being in Scotland about his age of thirty years It concerns the People of this Nation to be more diligently instructed in the Doctrine of Witchcraft than those of Foreign Countries because here they are tyed to a stricter or exacter Rule in giving their Sentence than others are for all of them must agree in their Verdict which in a case of extreme difficulty is very dangerous and it is a sad thing for men to be reduced to that extremity that they must hazard their Consciences or their Lives A DIFFERENCE Between an English and Hebrew WITCH THE Point in Question is briefly this Whether such a Witch as is Condemned by the Laws and Statutes of this Land be one and the same with the Witch forbidden by the Law of Moses The Witch Condemned by our Statute-Law is 1 Jacob. Cap. 12. One that shall use practise or exercise any Invocation or Conjuration of any evil or wicked Spirit or consult covenant with entertain or employ féed or reward any evil or wicked Spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the skin bone or other part of any dead person to be employed or used in any manner of Witchcraft Sorcery Charm or Enchantment or shall use practise or exercise any Witchcraft Enchantment Charm or Sorcery whereby any Person shall be killed destroyed wasted consumed pined or lamed in his or her Body or any part thereof such Offenders duly and lawfully Convicted and Attainted shall suffer death If any Person shall take upon him by Witchcraft Inchantment Charm or Sorcery to tell or declare in what place any Treasure of Gold or Silver should or might be found or had in the Earth or other secret places or where Goods or things lost or stoln should be found or become Or to the intent to
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel's description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oaths of Kings 8. Of the Benefit of the King's Prerogative over Laws 9. the King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavoured to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the People do subject the Exercise of it to Positive Laws But in this also they err for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the Profit of every Man in particular and of all together in general is not always one and the same and that the Publick is to be preferred before the Private And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the Mischiefs in Monarchy or else a prophetical Description only of the future ill Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy wherein it is evidently shewed that the Scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient for by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this Point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both no Remedy in the Text against Tyrants but in crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckoned by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and Inferiour Lords To serve the King in his Wars and to till his Ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiting with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Judge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant No Man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but God's Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apology for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and all that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his Words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger let none presume to search into his Deeds much less to oppose them When the Jews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the People nor advised them to stay their Payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their