of enlarging their Priviledges have subjected themselves as well to the slavery of Red-coats and the Tyranny of a Corps du guard or Council of War as they had their Prince under their Committees and Armies which considerations I hope will be worth their remembring What I have writ in most of the Chapters of this Treatise less or more appertains to the Gentry out of a true and cordial desire that if any such Critical time should in any Age return as that of Forty and Forty one or Eighty and Eighty one the Gentry may consider the History of former Ages and be able to distinguish betwixt Realities and feigned Pretences and will well weigh what I have writ in the preceding Chapter of the Nobility for that it is in most particulars applicable to to them which makes me shorter in this and that above all things they will seriously consider that though in every (l) Mâ—gis alii 〈◊〉 nes quâ—m alii mores Taâ—it 1. Histoâ— Generation new Men do arise that to carry on their Factious Design pretend different Causes yet the ends of all that are Male-contents and seditiously displeased with the Government is the same and commonly their Fate is parallel Therefore above all the Infections let them study to avoid that of murmuring and repining against the Government or that of being seduced by those who cover their dark Thoughts and Designs too close to be discovered by common Eyes The more such pretend Zeal for the common Good the more they pretend publick Spirits and care of Religion If they be found to have any the least Tincture of Immorality Envy Ambition Revenge Cruelty or aspiring in their Tempers the more they are to be suspected and avoided CHAP. XXXIX Of the Commonalty of England of the lower rank especially THESE are more especially the subject matter of Government The Employments they are engaged in The Common Peoples Duty makes it more profitable for them to look downwards and cultivate their Freeholds and Tenements and reap the golden Fruits of their Toil than to spend their time in the fruitless enquiries after the managery of States and Empire for whereover Soveraignty lodgeth they must still be Subjects Obedience saith a well observing (a) Cornwallis's Es says 46. Author not Examination is the destined Function of the Common People which Laws preserve them in The Industrious would soon be ruined by the Free-booters in every Hamlet if the Laws and Government were not their Guard By the several Rebellions properly of the Commons in Richard 2. H. 8. The Miseries of Insurrections and Edward the Sixth's time we have sad Examples of the Calamities they brought not only on their Neighbours and the disturbance they gave the Government but likewise the ruins they brought upon themselves and when they had wearied themselves with Rapine Murthers and a Hundred cruel Ravages and Butcheries they were at last either totally subdued and their Chieftains Executed and the rest Fined or they perished in the Fight being never able to effect any of their pretended Liberties they made the Insurrections to have obtained It is for want of Consideration that they are decoyed into such barbarous Outrages which in such Rebellions they generally commit They ought to consider Their Obligations to their Prince and that very seriously that it is from their Princes sollicitous Care that they enjoy Peace and Plenty to them they owe not only Allegiance and Obedience as they are their Soveraigns but especially Gratitude Loyalty and all dutiful Services For the good Laws from time to time have been confirmed by their Kings for their Prosperities without which they would be in a continual State of War and Feuds one against another They owe to the Paternal Care and Prudence of the Sovereign and his Government those Methods and Rules whereby they are so benignly ruled in England especially whereby they are in a freer and more plentiful Estate than any other Commoners in the World By the vertue of those Priviledges granted to them by their Kings they have Propriety in their Goods none can out them of their Possessions imprison or molest them while they observe the equitable Laws Their Privileges They have according to their several Capacities and Abilities a participation of Offices in their particular Hamlets Parishes Wapentakes or Counties either relating to the assistance to the Justice of the Land in Juries or conserving of the Peace in being petty or chief Constables or other Officers and have a peculiar Priviledge many other Commoners want of chusing their Representatives whereby they are only subject to such Laws as they or their Ancestors have given consent to The Government worthy Country-men makes fertile your Enclosures protects your Flocks and Herds secures your going out and coming in makes your Sleeps undisturbed guards your home-bred Commodities when you send them abroad secures those are brought home to you appoints you Markets for buying or selling your Corn and Cattle and your own Manufactures Let those among you The Calamities they sustained in the late War that are not ashamed they were Sequestrators Membrs of the Parliaments Army or active Officers Oppressors Plundereres or Informers against their Loyal Neighbours consider what they reaped in the late unhappy Wars begun with all the specious Pretences of redressing grievances securing Propriety and reforming Religion precious Names most wickedly abused Remember how unsupportable were the Taxes and Sequestrations What affrightments were you continually in by the Quartering of imperious Soldiers and their Plunders where they neither left Food nor Rayment for your Wives and Children and what they could not devour or carry away they destroyed Consider the effusion of so much Blood in the cruel Battles and their most unjust High-Courts of Justice how all the Laws either were stifled or miserably distorted The best Preservatives against the relapse into such miserable times Advice to the Commonalty is to reflect upon them often to live quietly under your Sovereign to give him no occasion to unsheath any of his Swords against you to reduce you to Obedience Avoid all Factious Whisperers of discontent You were within these six Years by past wrought so upon by cunning Designers of a Commonwealth that you made choice of such Representatives as neither would supply that Prince o immortal Memory who had preserved them and you in that Peace he had restored them to when nothing but War and miserable Devastations were in all the Countries of the Continent nor admit our present Gracious Soveraign who had adventured his Life so often for their Safety to succeed in the Throne of his Royal Ancestors Remember I beseech you dear Countrymen these things and consider how near the Gulph and Pits Brink of inevitable Miseries you were Be thankful to those Loyal Persons who by their Counsels and Addresses withheld you from the imminent Ruine Be mis-led no more by such as can sow nothing but Darnel Cockle Poppy and Tares among
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
in the Authors in the (o) Sir Edw. Coke 4 Inst Ryley's Appendix p. 521 c. 537 563. Margent the exact Abridgment of the Record of the Tower Tit. Justices of Peace and Prynne's Irenarchus Redivivus The constituting and making of Justices of Peace is inherent in and inseparable from the Crown as appears by the Statute 27 H. 8. c. 24. (p) Dalton c. 3. Some are Justices by Act of Parliament as the Archbishop of York Bishop of Duresm and Ely and their Successors others by the Kings Charters as Mayors and other Officers of Corportion Towns Others are by Commission which are properly Justices of Peace to take care not so much of the publick Discipline and correction of manners as for the Peace and security of the High-ways they being at their Quarter-Sessions to hear and determine of Felons Breakers of the Peace Contempts and Trespasses to suppress Routs and Tumults restore possessions forceably entred c. They (q) Sir Tho. Smith's Commonwealth part 2. c. 22. Who are chosen to be Justices of Peace are elected out of the Nobility Knights Esquires and Gentlemen and such as be learned in the Laws such and such number as the Prince shall think meet and in whom for wisdom and discretion he putteth his trust being mostly Inhabitants within the County saving that some of the High Nobility At the King's Pleasure and chief Magistrates for honour sake are put in all or most of the Commissions Those have no time limited but by Commission from his Majesty alterable at pleasure Much increased in number At first they were but four after eight and now thirty or forty in a Shire either by increase of riches learning or activity in Policy and Government more being found than anciently who have either will or power or both to do their King and Country service and they are not too many to handle affairs of the Commonwealth especially for the benefit of the Subject For the better distributing of Justice that they may have in all parts of the County one or more not very remote to apply themselves to The Faults they may punish Each of them hath Authority upon complaint to him made of any Theft Robbery Manslaughter Murther Violence Complots Routs Riots unlawful Games forceable Entries Excess in Apparel Conventicles evil order in Ale-houses and Taverns of Idle and Vagabond Persons Masters and Servants not observing the Laws Rapes false Moneys Extortions or any such Disturbances of the Peace quiet and good order of the Shire to commit the Persons supposed to be Offenders to the Prison and to charge the Constable or sheriff to bring them thither and the Jaylor to neceive them till the next Quarter-Sessions when the Sheriff or his Under-Sheriff with his Bailiffs be to attend him at their Sections where Informations are given in to them by Bill which is shown to the Juries and if they find just cause for the complaint they find the Bill and the Party is Indicted and Tryed by a Jury of twelve men at the Kings Suit for the King is reckoned the one Party and the Prisoner the other They are also to order the repair of Bridges High-ways the Poor the lame Souldiers pensions and do many things besides according to the Power given in their Commissions which particularizeth all things they are to take Cognizance of sometimes upon suspicion of War to take care for the order of the Shire and sometimes to take Muster of Harness and able men Once in a year or two the Prince with his Council Instructions given to Justices of the Peace saith a Manuscript I have seen chuseth out certain Articles out of Penal Laws made to repress the pride and evil rule of the People and sends them down to the Justices willing them to meet together and consult among themselves how to order the matter most wisely and circumspectly whereby the People might be kept in good order and obedience according to Law and they after a certain space meet and certify the Prince or his Privy-Council how they do find the Shire in rule and order touching those points and all other disorders There was never saith Sir Thomas Smith (r) Part 2. tit Juslices of Pearce in any Commonwealth devised a more wise a more dulce and gentle How beneficial the Institution of Justices of Peace or more certain way to rule the People whereby they are kept always as it were in a Bridle of good order and sooner looked to that they do not offend than punished when they have offended for seeing the chief Persons of Quality and Interest among them have such charge and Authority given them by the King and if occasion be do commit cause to be Indicted and punished or sent to Prison for disobedience Offenders against the Laws It curbeth and terrifieth Offenders so that it is a new Furbishing of the good Laws of the Realm and a continual repressing of Disorders which the Common sort of People are too prone to if it were not for this impending lash which every where is held over Criminals The Law it self as registred and printed is but a dumb and dead thing the Ministers of the Law are those that give life to it and for that end were Justices of the Peace Constituted who being Gentlemen of Interest and parts are the fittest Instruments to see the Laws duly Executed They are principally concerned in seeing to the Execution of several Laws which are Committed to their Charge and it is greatly advantagious to the Country that at every Quarter-Sessions in the face of the Country one of the Justices of the Peace gives a charge to the Jurys wherein with learning and Judgment he acquaints them with the Excellency Antiquity and Utility of Monarchical Government the usefulness of those Laws Wise and Gracious Princes have granted to their Subjects the excellent Composure Contexture and Harmony in the Government and many other particulars fit for them to know as good Subjects and good Neighbours Having met with some Speeches made in Queen Elizabeth's time which relate either to Justices of the Peace or the Execution of Laws in general I think it may not be unacceptable to the Reader to understand in what manner that Queen caused her Chancellor to quicken the execution of the Laws Some touches of which follow (s) MS. Speech to the Justices Itinerant Anno 1559. The Conservation of Peace their principal Charge By the Conservation of Peace and Concord every Commonweal hath a perfect Foundation to begin marvelous good course to increase a strong Pillar to sustain it and a strong Buckler to defend it The plain and good order of each County consisteth in the well or evil Executing of Justice for thereby either every man enjoyeth his own and the whole Commonweal is in a calm and even Temper or by remisness in Execution the Free-Booters and Beasts of Prey are let loose to rob and despoil some and affright
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be