against the Senate who began sensibly to incroach on the Regal power that the Tribunes were first instituted to no other end but to preserve the people from unjust oppression and that their opposition to the Consuls was accounted alwayes to be against the rules of their institution and a breach of Articles And as for these Demarchi whom we spake of last that neither by their institution nor by usurpation they did oppose against the Senate in behalf of the people but executed their commands upon the people as their duty bound them So that the great imagination which the Author had of shewing to the world a view of such popular Magistrates as might incourage men of place and eminence to think themselves ordained after these examples to moderate their licentiousness of Kings and Princes is fallen directly to the ground without more ado as being built upon a weak nay a false foundation not able to support the building And more then so in case the instances proposed had been rightly chosen and that the Ephori in Sparta had been first ordained to oppose the Kings the Tribunes to oppose the Consuls and the Demarchi to keep under the Athenian Senate yet these would prove but sorry instances of such popular Officers as were ordained ad moderandum Regum libidinem to moderate the licentiousness of Kings soveraign Princes for proof of which they were produced The Ephori were not instituted in the State of Sparta till the Kings were brought under the command of the Senate and the State become an Aristocratie in which the Kings had very little left them of the Royal dignity but the empty name and were in power no other then the Dukes of Venice save that they were to have the command of the Armies which those Dukes have not And for the Tribunes 't is well known to every one who hath perused the Roman story that there were no such creatures to be found in Rome till the Romans had expuâ—sed their Kings were under the command of Coâ—suls the Monarchie being changed to an Optimatie and the people bound by solemn oaths never to admit of a King amongst them The like may be affirmed also of the Demarchi of Athens supposing that they were of as great authority as either the Ephori or the Tribunes that they were instituted in a time when the affairs of State were managed by nine Annual Magistrates all of them chosen by the people and accomptable to them In all these cases â—um non in regno populus esset sed in libertate e Livie hisâ— lib. 2. when the people had sued out their Wardship and thought themselves to be at liberty freed from those bonds which nature and allegiance formerly had laid upon them they did no more then what a wise and understanding people had good cause to do in taking the best course they could for their future safety And in my minde the people pleaded most unanswerably in their own behalf when they alleadged se foris pro imperio libertate dimicantes domi a civibus captos oppressos f Id. ibid. that fighting valiantly abroad both for their own liberty and their Countries honor against their Kings they were oppressed and wronged at home by their fellow Citizens that their condition as things stood was better in times of war then in times of peace their liberty never more assured then when they were amongst their Enemies and therefore being no otherwise bound to submit themselves to that change of Government then as it had been introduced by their own consent they had all the reason in the world to get as good terms as they could and be no losers by the bargain Which though it were the case and plea particularly of the people of Rome might be used also very fitly by the Spartans and Athenians on the self same reasons But this can no way be pretended or alleadged by those who live in an established and successional Monarchie where there is one only to command in chief and nothing left to the Subject g Tacit. Annal. praeter obsequii gloriam but the glory of obedience only and the necessity of submitting with a loyal heart to those commands and impositions which may be â—aid upon them with an unjust hand So that admitting it for true as indeed it is not that the Ephori the Demarchi and the Tribunes were ordained for the ends supposed yet it can follow by no rules of law or logick that because such popular Officers have been sometimes instituted to keep the scale upright and the balance even betwixt the Nobles and the People in an Aristocratie therefore the like are to be fancied in a setled Monarchie for moderating the licentiousness that is to say for that no doubt must be his meaning for regulating the authority of the Soveraign Prince 8 Thus have we seen a manifest discovery of Calvins purpose for setting up some popular Officers in every Kingdom to regulate the authority and restrain the power of Soveraign Princes and we may see a secret and more subtile danger included in that short Parenthesis then what is obvious at first sight to the unwary Reader For by the instances proposed and presented to us it seems to be his meaning that these popular Officers should not hâ—ve power only to restrain their Kings when they transgress the bounds of law or equity and either tyrannically oppress the Subject or wilfully dilapidate the patrimony of the Common-wealth but that they should set themselves against them and control their doings in the same way after the same manner as the Ephori did the Kings of Sparta or the Tribunes did the Roman Consuls Now we have shewn before out of several Authors h Vide chap. 2. that the Ephori did not only take upon them to appoint such Privie Counsellors about their Kings as to them seemed best to limit and prescribe them in the choyce of their wives to send them out unto the wars and recall them home as if they had been hirelings only and of no more reckoning to put them upon fine and ransome if they did any thing which was not pleasing to these humorous Gentlemen to have them at command both to come and goe as often as they whistled for them or held up a finger and finally to look for lowly reverence from them whensoever they vouchsafed to summon them to attend their pleasures but also to imprison next to banish and in fine to murder them And we have shewed you of the Tribunes i Vide chap. 3â— that after they had fortified themselves with large priviledges and grew predominant in the affections of the common people they did not only quarrel and oppose the Consuls under pretence of setting forth new laws for the peoples benefit nor were content to put the people into the possession of all the offices and honors of the Common-wealth which formerly belonged to the Nobles only whether the Consuls
between St. Peter and St. Paul by which last the Supreme Powers whatsoever they be are called the Ordinance of God The Powers saith that Apostle are ordained of God and therefore he that resisteth the Powers resisteth the Ordinance of God Upon which words Deodate gives this Glosse or Comment That the supreme Powers are called the Ordinance of God because God is the Author of this Order in the world and all those who attain to these Dignities do so either by his manifest will and approbation when the means are lawfull or by his secret Providence by meer permission or toleration when they are unlawfull Now it is fitting that man should approve and tolerate that which God approves and tolerates But thirdly I conceive that those words in the Greek Text of St. Peter viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are not so properly translated as they might have been and as the same words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are rendred by the same Translators somewhat more neer to the Original in another place For in the 8. chapt to the Romans vers 22. we finde them rendring 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the whole Creation and why not rather every Creature as both our old Translation and the Rhemists read it conform to omnis Creatura in the vulgar Latine which had they done and kept themselves more near to the Greek Original in St. Peters Text they either would have rendred it by every humane Creature as the Rhemists do or rather by all Men or by all Man-kinde as the words import And then the meaning will be this that the Jewes living scattered and disperst in Pontus Galatia Cappadocia and other Provinces of the Empire were to have their conversation so meek and lowly for fear of giving scandal to the Gentiles amongst whom they lived as to submit themselves to all Man-kinde or rather to every Man unto every humane Creature as the Rhemists read it that was in Authority above whether it were unto the Emperor himself as their supreme Lord or to such Legats Prefects and Procurators as were appointed by him for the government of those several Provinces to the end that they may punish the evil-doers and incourage such as did well living comformably to the Lawes by which they were governed Small comfort in this Text as in any of the rest before for those popular Officers which Calvin makes the Overseers of the soveraign Prince and Guardians of the Liberties of the common people If then there be no Text of Scripture no warrant from the word of God by which the popular Officers which Calvin dreams of are made the Keepers of the Liberties of the Common people or vested with the power of opposing Kings and soveraign Princes as often as they wantonly insult upon the people or wilfully infringe their Priviledges I would fain learn how they should come to know that they are vested with such power or trusted with the defence of the Subjects Liberties cujus se Dei ordinatione Tutores positos esse norunt as Calvin plainly saies they do If they pretend to know it by inspiration such inspiration cannot be known to any but themselves alone neither the Prince or people whom it most concerneth can take notice of it Nor can they well assure themselves whether such inspirations come from God or the Devil the Devil many times insnaring proud ambitious and vain-glorious Men by such strange Delusions If they pretend to know it by the Dictate of their private Spirit the great Diana of Calvin and his followers in expounding Scripture we are but in the same uncertainties as we were before And who can tell whether the private Spirit they pretend unto and do so much brag of 1 King 22. 22. may not be such a lying Spirit as was put into the mouthes of the Prophets when Ahab was to be seduced to his own destruction Adeo Argumenta ex absurdo petita ineptos habent exitus as Lactantius notes it All I have now to add is to shew the difference between Calvin and his followers in the propounding of this Doctrine delivered by Calvin in few words but Magisterially enough and with no other Authority then his ipse dixit enlarged by David Paraeus in his Comment on the 13. chapter to the Romans into divers branches and many endevours used by him as by the rest of Calvins followers to finde out Arguments and instances out of several Authors to make good the cause For which though Calvin scap'd the fire yet Paraeus could not Ille Crucem pretium sceleris tulit hic Diadema For so it hapned that one Mr. Knight of Brodegates now Pembroke Colledge in Oxford had preach'd up the Authority of these popular officers in a Sermon before the University about the beginning of the year 1622. for which being presently transmitted to the King and Councel he there ingenuously confessed that he had borrowed both his Doctrine and his proofs and instances from the Book of Paraeus above mentioned Notice whereof being given to the University the whole Doctrine of Paraeus as to that particular was drawn into several Propositions which in a full and frequent Convocation held on the 25. of June 1622. were severally condemned to be erroneous scandalous and destructive of Monarchical Government Upon which Sentence or determination the King gave order that as many of those books as could be gotten should solemnly and publickly be burnt in each of the Universities and St. Pauls Church-yard which was done accordingly An accident much complained of by the Puritan party for a long time after who looked upon it as the funeral pile of their Hopes and Projects till by degrees they got fresh courage carrying on their designs more secretly by consequence more dangerously then before they did The terrible effects whereof we have seen and felt in our late Civil Wars and present confusions But it is time to close this point and come to a conclusion of the whole Discourse there be no other Objections that I know of but what are easily reduced unto those before or not worth the Answering 15. Thus have we took a brief Survey of those insinuations grounds or Principles call them what you will which CALVIN hath laid down in his Book of Institutions for the incouragement of the Subjects to rebellious courses and putting them in Arms against their Soveraign either in case of Tyrannie Licentiousness or Mal-administration of what sort soever by which the Subjects may pretend that they are oppressed either in point of liberty or in point of property And we have shewn upon what false and weak foundations he hath raised his building how much he hath mistook or abused his Authors but how much more he hath betrayed and abused his Readers For we have clearly proved and directly manifested out of the best Records and Monuments of the former times that the Ephori were not instituted in the State of Sparta to oppose the Kings nor the Tribunes in the State of Rome to oppose the Consuls nor the Demarchi in the Common-wealth of Athens to oppose the Senate or if they were that this could no way serve to advance his purpose of setting up such popular Officers in the Kingdoms of Christendom those Officers being only found in Aristocraties or Democraties but never heard or dreampt of in a Monarchical Government And we have shewn both who they are which constitute the three Estates in all Christian Kingdoms and that there is no Christian Kingdom in which the three Estates convened in Parliament or by what other name soever they do call them have any authority either to regulate the person of the Soveraign Prince or restrain his power in case he be a Soveraign Prince and not meerly titular and conditional and that it is not to be found in Holy Scripture that they are or were ordained by God to be the Patrons and Protectors of the Common people and therefore chargeable with no lesse a crime than a most perfidious Dissimulation should they connive at Kings when they play the Tyrants or want only abuse that power which the Lord hath given them to the oppression of their Subjects In which last points touching the designation of the three Estates and the authority pretended to be vested in them I have carried a more particular eye on this Kingdom of England where those pernicious Principles and insinuations which our Author gives us have been too readily imbraced and too eagerly pursued by those of his party and opinion If herein I have done any service to Supreme Authority my Countrey and some misguided Zelots of it I shall have reason to rejoyce in my undertaking If not posterity shall not say that Calvins memory was so sacred with me and his name so venerable as rather to suffer such a Stumbling-block to be laid in the Subjects way without being censured and removed than either his authority should be brought in question or any of his Dictates to a legal tryal Having been purchased by the Lord at so dear a price we are to be no longer the Servants of men or to have the truth of God with respect of persons I have God to be my Father and the Church my Mother and therefore have not only pleaded the Cause of Kings and Supreme Magistrates who are the Deputies of God but added somewhat in behalf of the Church of England whose Rights and priviledges I have pleaded to my best abilities The issue and success I refer to him by whom Kings do reign and who appointed Kings and other Supreme Magistrates to be nursing Fathers to his Church that as they do receive authority and power from the hands of God so they may use the same in the protection and defence of the Church of God and God even their own God will give them his Blessing and save them from the striving of unruly people whose mouth speaketh proud words and their right hand is a right hand of iniquity FINIS
against it V The principles of Disobedience in the supposal of some popular Officers ordained of purpose to regulate the power of Kings VI How much the practise of CALVINS followers doth differ from their Masters doctrine in the point of Obedience VII Several Articles and points of Doctrine wherein the Disciples of CALVIN are departed from him VIII More of the differences in point of Doctrine between the Master and his Scholars IX The dangerous consequences which arise from his faulty principles in the point or Article of Disobedience X The Method and distribution of the following work CHAP. II. Of the Authority of the Ephori in the State of Sparta and that they were not instituted for the ends supposed by Calvin I The Kings of Sparta absolute Monarchs at the first II Of the condition of that State when Lycurgus undertook to change the Government III What power Lycurgus gave the Senate and what was left unto the Kings IV The Ephori appointed by the Kings of Sparta to ease themselves and curb the Senate V The blundering and mistakes of Joseph Scâ—liger about the first institution of the Ephori VI The Ephori from mean beginnings grow to great Authority and by what advantages VII The power and influence which they had in the publick Government VIII By what degrees the Ephori incroached on the Spartan Kings IX The insolencies of the Ephori towards their Kings altered the State into a Tyranny X The Spartan Kings stomach the insolencie of the Ephori and at last utterly destroy them XI An application of the former passages to the point in hand CHAP. III. Of the Incroachment of the Tribunes on the State of Rome and that they were not instituted for the ends supposed by Calvin I The Tribunes of the People why first instituted in the State of Rome II The Tribunes fortifie themselves with large immunities before they went about to change the Government III The Tribunes no sooner in their Office but they sâ—t themselves against the Nobility and the Senate contrary to the Articles of their Institution V The many and dangerous Seditions occasioned by the Tribunes in the City of Rome VI The Tribunes and the People doe agree together to change the Government of the State VII By what degrees the People came to be possessed of all Offices in the State both of Power and Dignity VIII The Plots and practises of the Gracchi to put the power of Judicature and Supreme Majesty of the State into the hands of the People IX The Tribunes take upon them to commit the Consuls and bring all the Officers of the State under their command X The Office and Authority of the Tribunes reduced unto its antient bounds by Cornelius Sylla and at last utterly destroyed XI An Application of the former passages to the point in hand CHAP. IV. Of what Authority the DEMARCHI were in the State of ATHENS and of the danger and unfitness of the instances produced by CALVIN I Athens first governed by Kings and afterwards by one Sâ—veraign Prince under other Titles II The Annual Magistrates of Athens what they were and of what Authority III By whom and by what degrees the State of Athens was reduced to Democratie IV Of the Authority of the Senate and the famous Court of the Areopagites V What the Demarchi were in the State of Athens and of what Authority VI The Demarchi never were of power to oppose the Senate nor were ordained to that end VII Calvins ill luck in making choice of three such instances which if true would not serve his turn VIII The danger which lieth hidden under the design of such Popular Magistrates as are here instanced in by Calvin IX What moved Calvin to lay these dangerous Stumbling blockt in the Subjects way X The dangerous Seditions and practises which have hence â—nsued in most parts of Europe XI The Sectâ—â—f Calvin professed Enemies to Monarchy and the Power of Princes CHAP. V. What are the Three Estates in each several Kingdom of which CALVIN speaks and what they are particularly in the Realm of ENGLAND I Of the division of a people into Three Estates and that the Priests and Clergy have been always one II The Priests imployed in Civil Matters and Affairs of State by the Egyptians and the Persians the Greeks Gauls and Romans III The Priests and Levites exercised in Affairs of Civil Government by Gods own appointment IV The Prelates versed in Civil Matters and Affairs of State in the best and happiest times of Christianity V The Clergy make the third Estate in Germany France Spain and the Northern Kingdoms VI That antiently in the Saxons times the Ecclesiasticks of this Realm were called to all publick Councels VII The Prelates an essential fundamental part of the English Parliament VIII Objections answered and that the word Clerus in the Legal notion doth not extend unto the Prelates IX That the inferior Clergy of the Realm of England had antiently their votes in Parliament to all intents and purposes as the Commons had X Objections answered and that the calling of the Clergy to Parliaments and Convocations were after different manners and by several Writs XI The great Diffranchisement and Slavery obtruded on the English Clergy by the depriving of the Bishops of their Votes in Parliament XII A brief discussion of the question Whether that any two of the three Estates conspiring or agreeing together can conclude any thing unto the prejudice of the third CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the actions of the Soveraign Prince I The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II The different influence of the three Estates upon conditional Princes and an absolute Monarch III The Sanhâ—drim of no authority over the persons or the actions of the Kings of Judah IV The three Estaâ—es in France of how small authority over the actions of that King V The Kings of Spain not over-ruled or regulated by the three Estates VI Of what authority they have been antiently in the Parliaments of Scotland VII The King of England always accounted heretofore for an absolute Monarch VIII No part of Soveraigntie invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliaments doth consist especially XII The Kings of England ordinarily over-rule their Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practise of some former Parliaments and the Testimonies given unto them XIV No such Authority given by God in holy Scripture to any populâ—r Magistrates as Calvin dreams of and pretends XV The Application and Conclusion
s Plutarch in Pompeio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he gratified them in that point and thought himself an happy man to finde so fair an opportunitie to oblige them to him On which deceitful grounds for they proved no other he set them in their power again as before was said for which he stands accused by Quintus t Cicero de Legâ—buâ— l 3. and I think deservedly Certain I am that Pompey bought the short affection and applause of the common people at no less a price then his own destruction the Tribunes being the very men which pulled down his pâ—ide u Plutarch in I. Caesare and set up Caesar to oppose him Who going the same way to work that Sylla did and knowing that a Tribune and a Tribunitian spirit were no friends to Monarchie left them the name but nothing else The power and priviledge of the Office he kept unto himself for his own security x Dion histor Rom. lib. 53. as one that understood none better how many notable advantanges he should gain thereby for the confirming of his Empire Which course Augustus followed also taking the Tribunitian power into his own hands posito Triumviri nomine y Tacitus Annal lib. 1. assoon as the Triumvirate was expired by the death of his partners and from thence reckoned the years of his Government as Tribunitiae potestatis tertium quartum c. which his Successors did after his example till the time of Constantine when the name of Tribune was laid by as a thing forgotten z Rosin Antiq. Rom. The Empire was then cast into another kinde of mould then it had been formerly new Offices ordained new forms of Government introduced and a new Rome built and to what purpose should they keep the name when the thing was gone 11 Let us look back on all that is said before and we shall finde but little reason to relie upon Calvins word He saith the Tribunes were fet up to oppose the Consuls but the best Writers do affirm that they were instituted only to protect the people and to protect the people in such cases only when they did suffer any tort or unjust oppression He reckoneth them for instances of such popular Magistrates as were ordained to moderate and restrain the vast power of Kings and other Supreme Magistrates but the best Writers do affirm that the Tribunes were not instituted till the Kings were outed nor instituted at the first to restrain the Consular power though by degrees they did restrain it as they pleased and finally that they were again abridged of their power and tyrannie assoon as Monarchie was restored and the State brought to be obedient to one Soveraign Prince He seems to intimate that the Consuls were not wronged by such oppositions as the Tribunes daily made against them and that the Tribunes did no more in such oppositions then by their place and office they were bound to do But the best Writers do affirm that the Consuls made complaint from time to time of those wrongs and insolencies which those proud creatures of the people did afflict them with and they complained not without cause as their stories tell us So that there is but little ground for the supposition touching the first creation of these mighty Tyrants which Calvin trimly puts upon us less for the application of it to his end and purpose What other power soever they enjoyed or exercised more then the power of interceding when any Bill or Ordinance was to pass the Senate by which the people might have suffered in their goods and liberties was an incroachment on the Consuls and wrested from them by strong hand sometimes with bloud but never without dangerous tumults The best use can be made of such false surmises especially when they are false and factious too and some good uses may be made of the strongest poysons is that an Item may be taken by all Kings Princes and Supreme Governors to have a care of their Estates and neither suffer any Tribunes or men of Tribunitian spirits or such as challenge to themselves Tribunitian power to grow up under them or live within the verge of their Dominions The Tribune and the Tribunitian spirit are no friend to Monarchie and have so much of Pompey in them who restored the Office that they will never be content to endure an equall much less to suffer a Superior For further proof of which if more proof be requisite and for discovering to the world with what arts and practises those factious and seditious spirits did attain their height it would be a most excellent piece of service to all Soveraign Princes if a just Tribunitian historie were composed by some man of judgement for the recovery of this Age from the present maladies and a Memento to the future But this I leave to those who have time and leisure and other fit abilities to goe through with it I have another task in hand and the Demarchi call upon me to pass on to Athens where we are like to finde worse work then we met with hitherto Worse work I mean in this respect that we are like to finde less ground for the supposition for otherwise we are like to finde no work at all as will appear more evidently by that which followeth CHAP. IV. Of what authority the DEMARCHI were in the State of ATHENS and of the danger and unfitness of the instances produced by CALVIN I Athens first governed by Kings and afterwards by one Soveraign Prince under other titles II The Annual Magistrates of Athens what they were and of what authoritie III By whom and what degrees the State of Athens was reduced to a Democratie IV Of the authoritie of the Senate and the famous Court of the Areopagites V What the Demarchi were in the State of Athens and of what authoritie VI The Demarchi never were of power to oppose the Senate nor were ordained to that end VII Calvins ill luck in making choyce of three such instances which if true would not serve his turn VIII The danger which lyeth hidden under the disguise of such popular Magistrates as are here instanced in by Calvin IX What moved Calvin to lay these dangerous stumbling-blocks in the Subjects way X The dangerous oppositions and practises which have hence ensued in most parts of Europe XI The sect of CALVIN professed Enemies to Monarchie and the power of Princes 1 THE State of Athens as were all others at the first was under the Government of Kings all of them of the race of Cecrops from whom his Successors were called Cecropidae and they as other Kings in those antient times ut libitum imperitabant a Tacit. Annal. lib. 3. governed the people under them by no other rule then their own discretion Theseus the tenth from Cecrops was the first King of Athens which let goe his hold and parted with so many of the Regal rights as made the Kings weak and the Subjects wanton For having
it should be otherwise in the present times the equity and justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publique Counsails how easie a matter had it been for them either by joyning with the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much conscience to adventure on so great a change an alteration so incompatible and inconsistent with the Constitution of a Parliament how easily might they have suppressed the potency and impaird the Privileges of either of the other two by working on the humours or affections of the one to keep down the other But these were Arts not known in the former daies nor had been thought of in these last but by men of ruine who were resolved to change the Government as the event doth shew too clearly both of Church and State Nor doth it help the matter in the least degree to say that the exclusion of the Bishops from the House of Peers was not done meerly by the practice of the two other Estates but by the asseâ—t of the King of whom the Laws say he can do no wrong and by an Act of Parliament wherof our Laws yet say quae â—ul doit imaginer chose dishonourable c Plowden in Commentar that no man is to think dishonourably For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to flye from his City of London to part with his dear Wife and Children and in a word so overpowred by the prevailing party in the two Houses of Parliament that it was not safe for him as his case then was to deny them any thing And for the Act of Parliament so unduly gained besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and reason that the Parliament can do nothing to the destruction of it self and that such Acts as are extorted from the King are not good and valid whereof we have a fair example in the Book of Statuers d 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and rights royal mark it for this is just the case which he had yielded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good io the said Earls Barons and other wise men that since the Statute did not proceed of our free will the same be void and ought not to have the name nor strength of a Statute and therefore by their counsail and assent we have decreed the said Statute to be void c. Or if it should not be repealed in a formal manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained that the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be holden for none e 42 Ed. 3. c. 1. CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the Actions of the Soveraign Prince I. The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II. The different influence of the three Estates upon conditional Princes and an absolute Monarch III. The Sanhedrim of no authority over the persons or the actions of the Kings of Judah IV. The three Estates in France of 〈◊〉 small authority over the actions of that King V. The King of Spain not over-ruled or regulated by the three Estates VI. Of what authority they have been antiently in the Parliaments of Scotland VII The King of England alwaies accounted heretofore for an absolute Monarch VIII 〈◊〉 part of Soveraignty invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X. The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliament doth consist especially XII The Kings of England ordinarily over-rule tâ—eir Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practice of some former Parliaments and the testimonies given unto them XIV No such Authority given by God in Holy Scripture to any such Popular Magistrates as CALVIN dreams of and pretends XV. The Application and Conclusion of the whole Discourse I Have been purposely more copious in the former Chapter because I thought it necessaâ—y to declare and manifest who made the three Estates in each several Kingdom which are pretended by our Author to have such power of regulating the authority and censuring the actions and the persons of their Soveraign Princes And this the rather in regard it is thought of late and more than thought presented to the world in some publick writings especially as it relates to the Realm of England that the King the Lords and Commons make the three Estates which brings the King into an equal rank with the other two in reference to the businesse and affairs of Parliament A fancy by what Accident soever it was broached and published which hath no consistence either with truth or ordinary observation or with the practice of this Realm or of any other For the proof of this my position that the King is none of the three Estates as is now pretended if all proofs else should fail I have one from Calvin whose judgement in this point amongst many of us will be instar omnium For where he saith in singulis Regnis tres esse Ordines e Calvin instâ—t 4. cap. ult that there are three Estates in each several Kingdom and that these three Estates convened in Parliament or by what other name soever they call their meeting are furnished with a power Regum libidinem moderandi of moderating the licentiousness of Kings and Princes and that they become guilty of perfidious dissimulation si Regibus impotenter grassantibus c. If they connive at Kings when they play the Tyrants or wantonly insult on the Common-people I trow it cannot be conceived that the King is any one of the three Estates who are here
aswell now as formerly in the times of the Roman Emperors Quod Principi placuerit legis habet vigorem nothing but that which the King pleaseth to allow of is to pass for Law the laws not taking their coercive force as judicious Hooker well observeth from the quality of such as devise them but from the power which giveth them the strength of laws d Hooker Ecclesiast Pol I shut up this Discourse with this expression and comparison of a late leatned Gentleman viz. That as in a Copyhold Estate the Copybolder of a meer Tenant at will comes by custom to gain an Inheritance and so to limit and restrain the will and power of the Lord that he cannot make any determination of the Copyholders Estate otherwise than according to the custome of the Mannour and yet doth not deprive the Lord of his Lordship in the Copyhold nor participate with him in it neither yet devest the Fee and Franktenement out of the Lord but that they still remain in him and are ever parcel of his Demesn e Case of our Affairs p. 6. so in the restraining of the Kings Legislative power to the concurrence of the Peers and Commons though the custome of the Kingdom hath so fixed and setled the restraint as that the King cannot in that point use his Soveraign power without the concurrence of the Peers and Commons according to the custom of the Kingdom yet still the Soveraignty and with it the inseparable Legislative power doth reside soly in the King 11. If any hereupon demand to what end serve Parliaments and what benefit can redound to the Subject by them I say in the Apostles words much every way f Rom. 3. 2. Many vexations often times do befall the Subjects without the knowledge of the King and against his will to which his ears are open in a time of Parliament The King at other times useth the eyes and ears of such as have place about him who may perhaps be guilty of the wrongs which are done the people but in a Parliament he seeth with his own eyes and heareth with his own ears and so is in a better way to redresse the mischief than he could be otherwise Nor do the people by the opportunity of these Parliamentary meetings obtain upon their Prayers and petitions a redress of grievances only but many times the King is overcome by their importunity to abate so much of his power to grant such points and pass such Laws and Statutes for their ease and benefit as otherwise he would not yield to For certainly it is as true in making our approaches and petitions to our Lord the King as in the pouring out of our prayers and supplications to the Lord our God the more multitudinous and united the Petitioners are the more like to speed And therefore said Bodinus truly Principem plaeraque universis concedere quae singulis denegarentur g Bodin de Rep. l. 1. c. 8. that Kings do many times grant those favours to the whole body of their people which would be absolutely denied or not so readily yielded to particular persons There are moreover many things of greater concernment besides the abrogating of old Laws and making new which having been formerly recommended by the Kings of England to the care and counsel of their people convened in Parliament are not now regularly dispatched but in such conventions as are altering the tenure of Lands confirming the rights titles and possessions of private men naturalizing Aliens legitimating Bastards adding sometimes the secular authority to such points of Doctrin and forms of worship as the Clergy have agreed upon in their Comvocations if it be required changing the publick weights and measures thorowout the Kingdom defining of such doubtfull cases as are not easily resolved in the Courts of Law raising of Subsidies and Taxes attainting such as either are too potent to be caught or too hard to be found and so not tryable in the ordinary Courts of Justice restoring to their blood and honours such or the Heirs of such as have been formerly attainted granting of free and general pardons h Sir Tho. Smith de Rep. Angl. Camden in Brit. Crompt of Courts c. with divers others of this nature In all and each of these the Lords and Commons do co-operate to the publick good in the way of means and preparation but their co-operation would be lost and fruitless did not the King by his concomitant or subsequent grace produce their good intentions into perfect Acts and being Acts either of special grace and favour or else of ordinary right and justice no way derogatory to the Prerogative Royalâ— are usually confirmed by the Royal assent without stop or hesitancy But then some other things there are of great importance and advantage to the Common wealth in which the Houses usually do proceed even to final sentence the Commons in the way of imquisition or impeachment the Lords in that of judicature and determination with the consent and approbation of the King though many times without his personal assent and presence The King may be abused in his Grants and Patents to the oppression of the people or the dilapidation and destruction of the Royal Patrimony Judges and other the great Officers of Law and Equity are subject to corruptions and may smell of gifts whereby the passages of Justice do become obstructed The Ministers of inferiour Courts as well Ecclesiastical as Civil either exhaust the miserable subject by extortions or else consume him by delayes Erroneous judgements may be given through fear or favour to the undoing of a man and his whole posterity in which his Majesties Justices of either Bench can afford no remedy The great ones of the State may become too insolent and the poor too miserable and many other waies there are by which the Fabrick of the State may be out of Order for the removing of which mischiefs the rectifying of which abuses the Lords and Commons in their several waies before remembred are of special use yet so that if the Kings Grants do come in question or any of his Officers are called to a reckoning they used heretofore to signifie unto his Majesty what they found therein and he accordingly either revoked his Grants or displaced his Servants or by some other means gave way unto their contentment the Kings consent being alwaies necessary and received as a part of the final sentence if they went so far So that we may conclude this point with these words of Bodin who being well acquainted with the Government of this State and Nation partly by way of conference with Dr. Dale the Queens Ambassadour in France and partly in the way of observation when he was in England doth give this resolution of the point in controversie i Bodin de Repub. l. 1. c. 8. Habere quidem Ordines Anglorum authoritatem quandam jura vero majestatis imperii summam in unius Principis arbitrio
they reduced all matters they commonly declin'd the Kings judgement and his Courts of Judicature as altogether incompetent appealing from them either to their own Presbyteries or to the next general Assembly of their own appointing and standing so wilfully to those Appeals that some of them had like to have paid dear for it after that Kings coming into England if the King had not been more mercifull to them then they deserved at his hands If no man whatsoever he be can lawfully acquit himself from this subjection as is said by Chrysostome what will become of Calvins popular Magistrates and of the great authority which he gives them over Kings and Princes those popular Officers being included equally with the rest of the people in St. Pauls injunction It 's true that Calvins popular Officers may seem to have some colour for it both from our English Translation and the vulgar Latine by which obedience is required sublimioribus potestatibus to the higher powers and all such popular Officers whatsoever they be may warrantably be lookt upon as higher powers in respect of the residue of the people But first the words in the original viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do not so properly signifie the higher as the supreme powers and so the word is rendred in the first of St. Peter cap. 2. vers 13. in which submission is required to every ordinance of man for the Lords sake whether it be unto the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as to the Supreme or unto such as are sent by him c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith St. Peter in the singular 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith St. Paul in the plural number both words proceeding from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Nominative Case and consequently being of the same sense and signification But secondly permitting them the benefit of these translations yet will they finde but little colour for that coercive power that soveraign Authority and Jurisdiction which Calvin hath assigned to the three Estates or any other popular Officers over Kings and Princes For though such popular Officers may warrantably be lookt upon as higher powers in respect of the residue of the people as before was said yet are they lower powers in respect of the King from whom as they receive all the Authority which they have whatsoever it be so unto him they are to render an accompt of their actings in it whensoever he pleaseth So that these popular Officers may be compar'd not unfitly unto the Genera subalterna in the Schools of Logick each of them being subordinate to one another the Constable to the Maior or Bayliff in a corporate Town or to the Justices of the Peace in the County at large the Maiors and Justices to the Judges in their several Circuits the Judges in their several Circuits and their Courts of Judicature to the Lord Chancellor for the time being and he unto the three Estates when convened in Parliament till they end all in genus summum in that supreme power which is subordinate to none and unto which the rest are Species subalternae as the Logicians phrase it in their several orders till they end all in Specie infimâ even in the lowest of the People Less comfort can I give them from the Apostle of the Jewes from the words of St. Peter in which submission is required as before was said to every ordinance of man whether it be unto the King as unto the Supreme or unto Governors as unto them that are sent by him for the punishment of evill doers and for the praise of them that do well Now those which are thus authorised and sent by Kings to the ends and purposes before mentioned may very properly be resembled unto Jehosophats Commissioners in the Kingdome of Judah 2 Chron. 17. 7. or the itinerary Judges in the Realm of England and can neither claim nor exercise any other Authority then what in their Commissions and instructions is assigned unto them And certainly no King did or will ever grant any such Commission whereby his Vnder-officers and inferior Magistrates may challenge any power above him or exercise any jurisdiction or Authority over him If any thing in this Text may be thought to favour Calvin in this strange opinion it is that Kings are said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 humana creatura saith the vulgar Latin an ordinance of man as the English reads it and being but a Creature of the peoples making the rest may think themselves as good men as he The Rhemists will have Kings to be called humane creatures because elected by the people or holding their Soveraignty by birth and carnall propagation ordained for the wealth peace and prosperity of the Subjects to put a difference betwixt that humane Superiority and the spiritual Rulers and Regiment guiding and governing the people to an higher end and instituted by God himself immediately Christ having expresly constituted the form of Regiment used ever since in the Church Whereunto Dr. Fulk for want of a better doth return this Answer viz. That though there be great difference between the government of Princes and Ecclesiastical Governors yet the Apostle calleth not Princes an humane creation as though they were not also of Gods Creation for there is no power but of God but that the form of their Creation is in mans appointment All the Genevians generally do so expound it and it concerns them so to do in point of interesse The Bishop of that City was their Soveraign Prince and had jus utriusque gladini as Calvin signified in a Letter to Cardinal Sadolet till he and all his Clergy were expelled the City in a popular Tumult Anno 1528. and a new form of Government established both in Church and State So that having laid the foundation of their Common-wealth in the expulsion of their Prince and the new model of their Discipline in refusing to have any more Bishop they found it best for justifying their proceedings at home and increasing their Partizans abroad to maintain a parity of Ministers in the Church of Christ and to invest the people and their popular Officers with a chief power in the concernments and affairs of State even to the deposing of Kings and disposing of Kingdoms But for this last they finde no warrant in the Text which we have before us For first admitting the Translation to be true and genuine as indeed it is not the Roman Emperor and consequently other Kings and Princes may be said to be an humane Ordinance because their power is most visibly conversant circa humanas Actiones about ordering of humane Actions and other civill affairs of men as they were subjects of the Empire and Members of that Body politick whereof that Emperor was head Secondly to make soveraign Princes by what name and Title soever called to be no other then an humane Ordinance because they are ordained by the people and of their appointment must needs create an irreconcileable difference
us to honour the King and so doth Solomon also where he requires us to fear God and the King Prov. 24. 21. For the first under the the term of honouring comprehends a good esteem a fair opinion the other joyning God and the King together shewes plainly that in the person of a King there is a ray of sacred majesty And that of Paul is richly worth our observation where he commands us to obey not for wrath only Rom. 13. 5. but for conscience sake By which he means that Subjects are not only to contain themselves within the bounds of their obedience for fear they should incurre the anger and displeasure of their Prince or Governor as men submit themselves to an armed enemy whom they see ready to chastise them if they should resist but also to perswade themselves that the expressions of their duties which they make to them are made indeed to God himself from whom what ever power they have is devolved upon them Nor speak I of the men themselves as if the vizard of authority were enough to hide either their follies or their sloth on their lusts or cruelties or gain the name of virtues to their filthiest vices but that the function is so venerable and so full of honour that they who execute the same and bear rule over us are to be worthily esteemed and reverenced for their Office sake The second duty of the Subjects doth arise from this SECT 23. which is that we express the reverence and respect which we owe unto them by the actions of obedience whether it be in yeelding obedience to their Lawes or in paying tributes or undergoing such publick services and burdens as do relate unto the preservation of the publick or executing such commands as are laid upon us Let every soul saith Paul be subject to the higher powers Rom. 13. 1. for he that doth resist the power resists the ordinance of God Put them in minde saith he to Titus to be subject to Principalities Tit. 3. 1. and powers to obey Magistrates and to be ready to every good work And Peter thus Submit your selves to every Ordinance of man for the Lords sake 1 Pet. 2. 13. whether it be to the King as Supreme or unto Governors as to those which are sent by him for the punishment of evil doers and for the praise of them that do well And to the end the subject may not think that it is sufficient to counterfeit or pretend obedience in the outward shew but to perform it truly and sincerely from the very heart Paul adds that we commend the health and flourishing estate of those under whom we live 1 Tim. 2. 1. in our prayers to God I exhort saith he that first of all supplications prayers intercessions and giving of thanks be made for all men for Kings and for all that are in authority that we may lead a quiet and peaceable life in all godliness and honesty Let no man here deceive himself For seeing the Magistrate cannot be resisted but that God is resisted also though the unarmed Magistrate may possibly be contemned and slighted without fear of punishment yet God is armed sufficiently to revenge those insolencies which are thus offered to himself in them Now under this obedience I also do include that moderation and discretion which private persons ought to have and to impose upon themselves as a rule or law that so they neither intermeddle in affairs of State nor invade the office of the Magistrate nor put themselves on any publick undertakings if any thing be amiss in the publick Government which stands in need of Reformation it appertains not unto them to be tumultuously active in it or to put their hands unto the work whose hands are tied and to be tied on all such occasions but that they make it known unto the Magistrate whose hands are only left at liberty to effect the same My meaning is that they do nothing uncommanded For when the power or precept of the Governor doth intervene they are then armed with just authority and may do accordingly For as the Princes Privy Councel are said to be his Ears and Eyes so those inferiour Ministers by whom he executeth his commands or mandates are not unfitly called his Hands 3. The Magistrate being such as he ought to be SECT 24. and as before we have described him that is to say The Father of the Countrey the Shepheard of his people the preserver of the publick peace the great distributer of justice and the avenger of the innocent he must be somewhat more then mad who is not pleased with such a Government But seeing that all Ages do afford examples of negligent and slothful Princes who have no care at all of the publick safety of others who are so intent of their private profit as to make markets of all laws and priviledges and to expose their justice and their favours both unto open sale of some who drain their peoples purses to no other end but to maintain a vain and wastful prodigalitie and some who spend their time in nothing more then either the rifling of the subjects houses the deflouring of their wives and daughters or in the slaughter of the innocent that these should be received for Princes and their commands obeyed at all even in lawful matters is such a thing as some will hardly be perswaded to consent unto For where men finde so much unworthiness and such filthy facts as do not only mis-become a Magistrate but a private person when they see no resemblance of that Image of God which ought to shine most brightly in a Christian Magistrate when they behold no track nor footstep of such a Minister of Gods as is ordained for the incouragement and praise of those that do well and for the punishment of those that are evil doers they take him not for such a Governour whose office and authoritie is extolled so highly in the Scriptures And to say truth it hath been always naturally implanted in the souls of men not more to love and reverence a just vertuous Prince then to abominate and detest an ungodly Tyrant But if we look into Gods Book SECT 25. we shall there be taught not only to submit our selves to the command of those Princes who faithfully and as they ought do discharge their office but of all those who are advanced unto the highest place of Government though they do nothing less then perform their duties For though the Magistrate be one of the greatest blessings given by God for the good of mankind and that he hath confined the Magistrate within certain limits yet he declares that whatsoever they are they do receive their power from no hand but his that if they principally do intend the publick good they are the greatest testimonies and examples of his goodness to us if they prove insolent and unjust they are the executioners of his wrath and judgement for the sins
to the Regal Throne he doth sufficiently declare his will to be that he would have that man to reign over us Some general testimonies of this truth are in holy Scripture Prov. 24. 2 For thus saith SOLOMON For the transgression of a land many are the Princes thereof Job 12. 18. and JOB He looseth the band of Kings and girdeth their loins with a Girdle Which if confessed there is no remedy at all but we must serve those Kings if we mean to live There is another text in the Prophet Ieremie by which the people are commanded Jer. 29. 7. to seek the peace of Babylon whither God had caused them to be carried away captive and to pray unto the Lord for it for in the peace thereof was their peace to be Behold the Israelites being dispoiled of their estates driven from their houses carried into exile and plunged in a most miserable thraldom are yet required to pray for the prosperitie of the Conquerour not only as we are commanded in another place to pray for them that persecute us but that his Empire might continue in peace and safetie that they themselves might quietly enjoy the protection of it Thus David being appointed King by the Lords own Ordinance and anointed with his holy Oyl when undeservedâ—y he was persecuted and pursued by Saul would not give way that any corporal hurt should be done to that sacred person whom God had raised unto the Kingdom 1 Sam. 24. 6. The Lord forbid saith he that I should do this thing unto my Master the Lords anointed to stretch forth my hand against him seeing he is the Anointed of the Lord. Again But mine eye spared thee aâ—d I said I will not put forth my hand against my Lord for he is the Lords Anointed And again who can stretch forth his hand against the Lords Anointed and be guiltless As the Lord liveth the Lord shall smite him or his day shall come to die or he shall descend into battel and perish The Lord forbid that I should stretch my hand against the Lords Anointed This reverence and dutiful regard we ought to carrie towards our Governours SECT 29. to the very end however they may chance to prove Which therefore I repeat the oftner that we may learn not to enquire too narrowly into the men but to rest our selves content with this that they sustain that place or person by the Lords appointment in which he hath imprinted and ingraved a most inviolable character of sacred Majestie But some will say that Rulers owe a mutual dutie to their Subjects That hath been formerly confessed from which if any should infer that no obedience must be yeelded but to their just and legal power he were a very sorry disputant Husbands are bound in mutual bonds unto their Wives and so are Parents to their Children Suppose that both neglect their duties that Parents who are prohibited by God to provoke their Children unto wrath be so untractable and harsh to them that they do grieve them above measure with continual sowreness and that husbands who are commanded to love their wives and to give honour to them as the weaker vessel should use them with contempt and scorn should therefore children be the less obedient to their Parents or wives less dutiful to their husbands We see the contrary that they are subject to them though both lewd and froward Since thereâ—ore nothing doth concern us more then that we trouble not our selves with looking into the defects of other men but carefully endevour to perform those duties which do belong unto our selves more specially ought they to observe this rule who live under the authority and power of others Wherefore if we are inhumanely handled by a cruel Prince or by a covetous and luxurious Prince dispoiled and rifled if by a slothful one neglected or vexed for our Religion by a lewd and wicked let us look back upon our sins which God most commonly correcteth with this kinde of scourges the thought whereof will humble us and keep down the impatience of our angry spirits Let us consider with our selves that it appertains not unto us to redress these mischiefs that all which doth belong to us is to crie to God in whose hands are the hearts of Kings Prov. 21. 1. and he turneth them whither soever he will He is that God which standeth in the Congregation of the mighty and judgeth amongst the Gods before whose face all Kings shall fall and be confounded and all the Judges â—f the earth who do not reverence his CHRIST but make unjust laws to oppress the poor and offer violence to the man of low condion and make a spoil of Widows and a prey of Orphans And here we may aswell behold his goodness SECT 30. as his power and providence For sometimes he doth raise Avengers from amongst his servants and furnisheth them with power sufficient aswell to execute vengeance on such wicked Rulers as to redeem his people so unjustly vext from the house of bondage and sometimes useth to that end the fierce wrath of others who think of nothing less then to serve his turn Thus he redeemed his people Israel from the tyrannie of Pharaoh by the hand of Moses from Cushan Kâ—ng of Syria by Othoniel from other thraldoms by some other of their Kings and Judges Thus did he â—ame the pride of Tyre by the arms of Egypt the insolence of Egypt by the Assyrians the fierceness of Assyria by the Chaldeans the confidence of Babylon by the Medes and Persians after that Cyrus had before subdued the Medes Thus did he sometimes punish the ingratitude of the Kings of Judah and Israel and that ungodly contumacie which they carried towards him notwithstanding all his benefits conferred upon them by the Assyrians first the Baâ—ylonians after But we must know that though these several instruments did the self same work yet they proceeded not in the self same motives For the first sort being thereto lawfully authorized and called by Almighty God by taking up Arms against their Kings did nothing less tâ—â—n violate that sacred Majestie which is inherent in a King by Gods holy Ordinance but being armed from heaven did only regulate and chastise the lesser power by the help of the greater as Princes use sometimes to correct their Nobles The later sort though guided by the hand of God as to him seemed best so that they did unknowingly effect what he had to do intended only the pursuit of their own designs 5. But whatsoever their designes and intentions were SECT 31. the Lord did justly use them to effect his business when by their means he broke the bloudie Scepters of those insolent Kings and overthrew their wicked and tyrannical Empires Hear this ye Princes and be terrified at the hearing of it But let not this afford the least incouragement unto the subject to violate or despise the authoritie of the Magistrate which God hath filled so full of
Commonwealth And as amongst the Archontes in the State of Athens which were nine in number one of them was called the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Archon in the way of excellency after whose name the year was called and their reckonings made as Titio Sempronio Coss in the State of Rome so had the Ephori their Eponymus one who by way of eminency was called the Ephorus c Pausan lib. 3. in Lacon But for this first reason of their institution take it thus from Plutarch d Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Lycurgus having thus tempered the form of his Common-wealth it seem'd notwithstanding unto those which came after him that this small number of thirty persons which made the Senate was yet too mighty and of too great authority Wherefore to bridle them a little they gave them as he cites from Plato a bit in their mouthes which was the authority of the Ephori erected in the time of King Theopompus about 130 years after the death of Lycurgus A second reason which induced those Kings to ordain these Ephori was to ease themselves and delegate upon them that remainder of the Royal power which could not be exercised but within the City For the Kings having little or no command but in wars abroad cared not for being much at home and thereupon ordained these Officers to supply their places Concerning which Cleomenes thus discourseth to the Spartans e Id. in Agis Cleomenes after they had destroyed the Ephori and suppressed the Office informing them that Lycurgus had joyned the Senators with the Kings by whom the Common-wealth was a long time governed without help of any other Officers that afterwards the City having great wars with the Messenians the Kings were alwaies so imployed in that war that they could not attend the affairs of the State at home and thereupon made choice of certain of their friends to sit in judgement in their stead whom they called the Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and for a long time did govern only as the Kings Ministers though afterwards by little and little they took unto themselves the supreme authority Another reason hath been given of the institution which is that if a difference grew between the two Kings in a point of judgement there might be some to arbitrate between them and to have the casting voice amongst them when the difference could not be agreed And this is that which Lisander and Mandroclidas two that had been Ephori suggested unto Agis and Cleombrotus the two Kings of Sparta declaring f Id. ibid. That the office of the Ephori was erected for no other reason 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But because they should give their voices unto that King who had the best reason on his side when the other would wilfully withstand both right and reason and therefore that they two agreeing might lawfully do what they would without controlment that to resist the Kings was a breach of law considering that the Ephori by law had no power nor priviledge but only to arbitrate between them when there was any cause of jarre or controversie And this was so received at Sparta for an undoubted truth that Cleomenes being sole King upon the death of Agis of the other house recalled called Archidamus the brother of Agis from his place of banishment with an intent to make him King not doubting but they two should agree together and thereby make the Ephori of no power nor use So then we have three reasons of the institution and more then these I cannot finde of which there is not one that favoureth the device of CALVIN or intimateth that the authority of the Ephori was set up to pull down the Kings And to say truth it is a most unlikely matter that the Kings of Sparta having so little power remaining should need more Officers to restrain them then they had before that they should make a new rod for their own poor backs and add five Masters more to those eight and twenty which Lycurgus had imposed upon them Which makes me wonder much at Tully who doth acknowledge that the Ephori were ordained by Theopompus as both Aeristotle h Aristot Polit. l. 5. c. 11. and Plutarch do affirm and yet will have them instituted for no other cause nisi ut oppositi sint Regibus but to oppose and curb the Kings i Cicero de legibus l. 3. but more that Plato who had so much advantage of him both in time and place should ascribe the institution to Lycurgus and tell us that he did not only ordain the Senate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Plato Ep. 8. edit gr lat To. 3. but that he did also constitute the Ephorate for the strength and preservation of the Regal power 5. For out of doubt it is affirmed by Plutarch l Plut. in Lycurgo confirmed by Scaliger m Scalig. animadvers in Euseb Chron. and may be gathered from some passages in Eusebius Chronicon and the authoritie of Aristotle who refers the same to Theopompus as before was shewed that the first Institution was no less then 130 years after the death of Lycurgus Who was the first that bore this Office hath been made a question but never till these later times when men are grown such Sceptics as to doubt of every thing Plutarch affirms for certain n Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the first Ephorus that is to say the first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who had the name of Ephorus by way of excellencie for otherwise there were five in all was called Elatus and hereto Scaliger did once agree as appears expressly pag. 67. of his Annotations on Eusebius where he declares it in these words Primus Elatus renunciatur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But after having a desire to controll Eusebius he takes occasion by some words in Diogenes Laertius to cry up Chilo for the man first positively Primus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fuit Chilon and next exclusively of Elatus Quibus animadversis non fuerit Elatus primus Ephorus sed Chilon To make this good being a fancie of his own and as his own most dearly cherished he produceth first the testimony of Laertius and afterwards confirms the same by a new emendatio temporum a Calculation and accompt of his own inventing The words produced from Laertius are these verbatim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o Diogen Laeâ—t l. 1. in Chilo Which is thus rendred in the Latine and I think exactly Fuit autem Ephorus circa quinquagesimam quintam Olympiada Porro Pamphila circa sextam ait primumque Ephorum fuisse sub Euthydemo autore Sosicrate primumque instituisse ut Regibus Ephori adjungerentur Satyrus Lycurgum dixit If it be granted in the first place that Chilo was not made Ephorus until the 55 Olympiad as 't is plain he was not and Scaliger affirms as much it must
upon them whose businesses and suits of law were brought to be determined by them b Aristot Polit. lib. 3. cap. 1. so they increased that dependance by husbanding such difference as did oft arise between the Senate and the Kings to their own advantage For it is well observed by Aristotle that as long as the Senate and the Kings did agree together they kept all the power in their own hands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c Id. ibid. l. 2. c. 9. but when they jarred amongst themselves they gave the people opportunitie to become their Masters But that which raised them to the height and made them terrible at last both to King and Senate was the mutual tie and correspondence which was between them and the people by whom they were not only chosen and therefore cherished by them as their own deâ—r creatures but for the most part chosen 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 out of the body of the people and sometime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 d Aristot Polit. l. 2. cap. 7. out of the very meanest and the neediest of them which made them on the other side to court the people and to apply themselves unto them upon all occasions And though it happened many times that some of them being indigent and needie men were easily wrought upon by money and apt to sell as well the justice as the honor of the Common-wealth to enrich themselves and raise their families whereof Aristotle much complains and that deservedly e Id. ibid. et c. 8 yet this corruption served to advance their power and put them into a condition to be the better able to oblige the people So that the common sort of people doing all they could to advance the power and reputation of the Ephori whom they accounted for their own as indeed they were and the Ephori striving by all possible means to gratifie the people by obtaining new laws and large immunities to be enacted for them as they saw occasion they altered the whole frame of Government and made it of an Aristocracie to become an Oligarchie and in conclusion a plain popular tyrannie 7. For trusting to the power and interess which they had in the Commonaltie and the support they were assured from them if the case required it they drew unto themselves the managerie of the State-affairs and grew so powerful at the last that if they did not all things of their own authoritie yet they had such an hand on the Kings and Senate that nothing could be done without them Were any laws to be enacted who but the Ephori must propound them Or any Taxes to be levied for the necessarie uses of the Common-wealth who but the Ephori must impose them f Plutarch in Agis Cleomen When Lysander had reduced the City of Athens unto such extremities that they were glad to yeeld unto such conditions as the Conquerors were pleased to impose upon them from whom must the Capitulations come but from the Ephori It was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 g Id. in Lysandro the final resolution of the Ephori from which they were to expect either bonds or libertie Cynado is accused of Treason against Agesilaus and the State of Sparta the Ephori must take the information and proceed accordingly h Xenophâ—n in vita Agesilai and if Pausanias be accused of holding correspondence with the King of Persia the Ephori send out their commands i Thucydides l. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and commit him presently to Prison When any Ambassadors were sent forth on the publick service from whom must they receive their power from whom be furnished with instructions but from the Ephâ—ri alone k Plut. in Nicias and who but they must appoint Commanders for the Wars require accompt of their imployments and either punish or reward them as they have deserved When Cleonymus was displeased because Areus was preferred before him in his pretensions to the Kingdom the Ephori did not only take upon them to sweeten and demulce the man by great gifts and presents 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l Pausan l. 3. in Lacon but also to confer upon him the command of the Army though of right belonging to the Kings When Mindarus the Admiral of their Navie was miserably beat by the Athenians in the straight of Hellespont an express is presently dispatched to Sparta to give unto the Ephori an account thereof m Plutarch in Alcibiades Lysander had no sooner revenged this quarrel and beat the Fleet of the Athenians neer the self same place but he acquaints the Ephori with his good success with all speed that might be n Idem in Lysandro And if the Wars prove fortunate and the spoil so great that part thereof be sent to Sparta to be laid up in the publick Treasurie the Ephori and none but they must have the fingering of the money o Id. ibid. Finally there was no Commander of the Armies or other Officer imployed by the Common-wealth whom they called not to an accompt as their stomachs served not staying till the Office was expired and the Commander or the Officer become a private man again as in other States but even in the midst of their Command and Magistracie whatsoever it was and whom they did not punish when they came before them either by imprisonment or death p Xenophon de Repub. Lacedaem as to them seem'd best Thus have we brought them to their height and seen them absolutely possessed of the Supreme Power in making peace or war as they thought convenient and in disposing of the goods the liberties yea and the lives too of the Spartan subject It had been a strange temper in them had they tarried there and not incroached as much whilest the tide went with them upon the persons and the power of the Kings themselves 8. For howsoever at the first they were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Ministers of the Kings as before was told you and accomptable to none but them yet after they were reckoned for the Officers of the Common wealth they cast off all relation to the Kings their Masters and thought themselves their Equals at the best and at last their betters A point which Theopompus did but little dream of when first he set them up to oppose the Senate although his Queen a wise and understanding Ladie did evidently see and tell him what would follow on it Of which we finde this storie in the works of Aristotle and from him borrowed by Plutarch if I guess aright that his wife seeing what design he was bent upon and how unluckily he was carried on to effect the same advised him to take heed that by erecting this new Magistracie he did not leave the Kingdom in a worse condition to his Heirs and Successors then he received the same from his Predecessors and that he answered thereunto 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 e Aristot Polit. l. 5. c 11. that by
assured the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 z Id. ibid. that he would humble the Nobility and bring down their pride and 't was no reason that such a man as he should be disappointed and not be master of his word Martius being banished at the last their next bout was with Appius Claudius a constant and professed enemy of the popular faction one who had openly took part against them in behalf of Martius and after seeing them apprehend some Gentlemen who opposed their insolencies had openly denied jus esse Tribuno in quenquam nisi in plebeium a Livie l. 2. that they could exercise their power on any but the Commons only Him therefore they accused of Treason or at least sedition in that he had intrenched upon their authority which was made sacred by the Lawes and doubtlesse had condemned him to some shameful punishment had he not died before his triall Which victory on Martius and the death of Appius did so discourage the Nobility and puffe up the Tribunes that from this time forwards as the Historian doth observe the Tribunes cited whom they listed to answer for themselves before the people and to submit their lives to their finall sentence which as it did increase the power of the popular faction in the depressing of the Nobles and weakning the authority of the Senate so did it open them a way to aim at and attain to all those dignities in the Common wealth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 b Dionys Halicarn l. 7. which were most honourable in themselves and had formerly belonged to the Patricians and to none but them And yet the Senate and Nobility did not so give over but that sometimes they put them in remembrance of their first conditions and challenged them of breaking all those bonds and Covenants which were so solemnly agreed on and accepted by them at the first erection of their Office For this did Fabius presse upon them when they went about to make some Law for the restraint and regulating of the power of the Consuls viz. that their authority was given them ad auxilium singulorum for the relief of such particulars as did want their help not for the ruine of the publick and that they should do well to bethink themselves c Livie l. 3. Tribunos plebis se creatos non hostes Patribus that they were chosen Tribunes to protect the people not enemies to oppresse the Senate And the expostulation of the Senate was both just and necessary when they demanded of the Tribunes on the same occasion 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 d Dionys Halicarn l. 10. who gave them power to introduce new Lawes and subvert the old and told them in plain terms they had broke their Covenants and that they were not made upon such conditions as to do all things that they listed nor to do any thing at all but only to protect the poor and preserve the Commons from oppression Which put together makes it a most evident truth that in the creation of the Tribunes there was nothing lesse intended then to curb the Senate or to set up a power to oppose the Consuls as vainly and seditiously is supposed by CALVIN though true it is they did abuse their power with the Common people and the authority of their office to suppresse them both 5. And this they were resolved to do although they had no other way to effect the same then by raising seditions in the State and putting the people into Arms upon all occasions at which they were so perfect and so constant in it that seldome the whole year went round without some tumult or sedition of their setting forward as will appear to any one who is versed in Livie If they held quiet for one year as they seldom did till they had brought the City under their obedience they broke out in the next that followed with the greater violence and when the course of the distemper was so intermitted that it held not alwaies a Quotidian it proved a Tertian Feaver or at most a Quartan and therefore like to tarry longer with the afflicted Patient How many seditions did they raise about the law Agaria of which Livie tels us that it was never moved e Hâ—st Rom. l. 2. sine maximis motibus without great tumults and dissensions How many tumults did they raise to oppose the Consuls when they had any wars in hand and were to press the Souldier to pursue those wars How often finde we in that Author Tribunitium bellum domi territare patres f Id. lib. 3. that when the Fathers had no wars abroad they found a Tribunitian war at home which did more affright them how often finde we them complaining non ultra ferri posse Tribunitios furores g Id. lib. 4. that the insolencies of the Tribunes were no longer sufferable and that they could not look to be without continual alarms and renewed distractions whilest the seditions and the authors of them did succeed so prosperously Nay they were so accustomed to it that having had some intermission and that no otherwise obtained but by yeelding all things to the people which they had a minde to Livie takes notice of it as a thing observable permultos annos esse h Id. lib. 10. that many years had intervened since the Patricians and the Tribunes had their last contention And all this while they managed their seditions by the tongues end only seldom proceeding unto blowes and much lesse to bloud But when the two Gracchi came in play and attained the Office they fell from words to blowes and from blowes to murther Tiberius one of the two Brothers and many of his friends and followers being tumultuously slain in the Common Forum as he was acting the part of a busie and seditious Tribune whom Caius the other of the two not long after followed both in life and death And this saith the Historian initium in urbe Roma Civilis sanguinis gladiorumque impunitatis fuit i Velleius Patercul hist was the first time that the sword was suffered to range at liberty in the streets of Rome and to be discoloured with the bloud of the Citizens their differences before that day though not often afterwards being determined by parlies but not by bloudshed Which being put together and considered seriously it will appear to be no Paradox which we finde in Florus where he affirmeth Seditionum omnium causas Tribunitiam potestatem excitasse k Florus histor Rom. l. 3. that the Tribunitian power was the source and fountain of all those seditions wherewith the quiet of the State had been disturbed Nor was it said by Quintius without very good reason that the authority of the Tribunes in seditione ad seditiones nata was born in a sedition and to raise seditions * Cicero de Legibus l. 3. that it was pestifera potestas a pestilent pernicious office and that Pompey did exceeding ill
to re-invest the Tribunes with that height of power of which they had been justly dispossessed by Sylla Upon which grounds it had been formerly averred by the Consuls and the rest of the Senate that the Tribunes were the cause of those distractions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Authors words which did so miserably afflict the Common-wealth * Dionys Halicarn l. 10. But this to say the truth is so clear a point that it needs no proof I only shall observe and so pass it by how justly the Nobility and Senate were punished by their own example and for how little time they enjoyed that Soveraignty which they had wrested from their Kings From the expulsion of the Kings to the creating of the Tribunes were but sixteen years and from the death of Tarquin to the reign of Brutus and Sicinius but one year no more and in that little span of time the people profited so well in the school of rebellion that they did not only beat the Senate at their own weapon of disloialty but choaked them with their own objection For when it was objected against the Tribunes that their authority was gotten and maintained by seditious courses the Tribunes handsomely replyed that that objection might aswell be made against the authority of the Consuls which had been introduced and established by no other means m Id. lib. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then the rebellion of the Nobles or Patricians against their Kings A very shrewd retortion if you mark it well and fit to be considered of in these present times 6 If any ask to what end all these stirs were raised and these seditions set on foot he may please to know that there was an intent from the first creating of the Tribunes to change the government of the State and to put the Supreme Power of all into the hands of the people that is to say to bring it under the command of a few factious persons on whom the body of the people had devolved their power And this is positively affirmed by Florus where having told us that the Tribunes were the cause of all the tumults and seditions which had been raised within the City he adds that being at first ordained specie quidem tuendae plebis Florus hist Rom. l. 3. under pretence of being Protectors of the Commons and taking care for the preserving of their rights and liberties they sought in very deed to usurp the Soveraignty re autem dominationem sibi acquirere and to get the Supreme power into their own hands To this end as the Tribunes strived to oblige the people by causing new Lawes to be made in their behalf and for the increase of their authority so did the people readily obey the Tribunes and gathered into an head upon all occasions aswell for the protection of their persons as the confirmation of their power When Martius had declamed against them in the open Senate for their factious and seditious courses the Tribunes presently made complaint to the people of it calling upon them to assist them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to save their Tribunes n Plutarch in Coriolano at which the people were so madded and ran on so furiously that they were like to have fallen desperately upon all the Senate And Appius found unto his cost that in offering to attach a Tribune though he well deserved it concio omnis coorta pro Tribuno in Consulem o Livie l. 2. the whole assembly rose against him as one man to defend their Tribune the rascall multitude gathering together out of all the City to do him right against the Consul And Plutarch tels us in the life of Tiberius Gracchus that the people were so sottishly affected to him that many of the needy and seditious rout waited upon him all night long up and down the Town p Plutarch in Tiber. C. Gracchis some of them buying tents and lying about his house to watch it as a guard to his person And on the other side the houses of the Tribunes were kept continually open aswell nights as daies that they might serve as a Protection or a Common Sanctuary for men of all sorts to repair unto whom either debt or misdemeanor or some greater matter had made obnoxious to the Sergeants or other Ministers of justice to the great prejudice of the honest and well meaning Subjects in their suits and businesses And besides this the Tribunes never failed to flatter and bewitch the people by some piece of courtship or by preferring some new Lawes as before was said for their ease and benefit They had no sooner way then that to advance their power or to obtain unto that absoluteness of command and empire which they projected to themselves For doubtlesse that of the Historian is exactly true 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 q Dionys Halicarn lib. 6. that he that means to be a Tyrant must be first a flatterer there being no readier way to advance a Tyranny then by being popular a profest servant of that people whom he would command But this confederacy between the Tribunes and the people and the mutual ties that were between them I cannot better lay before you then in Plutarchs words r Plutarch in Agis Cleomen who speaking of the Gracchi doth inform us thus That having received many favours from the peoples hands they were ashamed to be indebted to them and therefore earnestly endevoured to requiâ—e their courtesies by making new Decrees and Lawes which they propounded and obtained for the peoples profit and on the other side the people for their parts were not wanting to admire and honour them the more by how much they perceived them studious of their good and benefit So that with like strife on either side the one to gratifie and oblige the other their interesses were so mingled and their intentions so concorporated that they must needs hold on as they had begun and either stand or fall together By means whereof the people in conclusion became lords of all the majesty of the State and the power of judicature being absolutely vested in them which since they could not manage but by their Atturneys nor otherwise execute and discharge then by their Proxies who but the Tribunes their own creatures must be trusted with it And this is that which Tacitus observes to be the issue of those quarrels which were kept on foot between the Nobility and the Commons modo turbulenti Tribuni s Tacit. hist lib. 2. modo Consules praevalidi sometimes some factious Tribunes carried it away and then again the Consuls had the better and prevailed in power according as they did comply with the peoples humours till Marius and Sylla first and Julius Caesar afterwards by their example by force of Arms subdued both parties and introduced an absolute Government 7 Now for the steps by which the people did asâ—end to this height of power they were not raised at once but
were long a making When first the discontented Nobles had expulsed their Kings and found they could not master all those difficulties which so great a business as that was did present unto them without being sure to have the people theirs without fear of lapsing Poplicola advised and at last enacted it for Law that no man should presume upon pain of death to take upon him any Office 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 t Plutarch in Publicola unlesse it come unto him by the gift of the people and that if any were condemned and appealed to them the execution should be respited till the people should give sentence in it But then withall the Nobility kept all Offices both of power and State in their own hands only the people being uncapable of the meanest office which did relate unto the Government of the Common-wealth untill they gained the Tribunes and the two Aediles which were under officers to the Tribunes to be chosen out of their own body Which once obtained there was no place how high soever which they did not aim at and which their Tribunes did not finde some way to compasse for them the Nobles and Patricians still in vain complaining how much they were dishonoured in the competition First therefore having gained a Law but with much adoe that the Commons might be married into Noble Families they presently propose another ut populo potestas esset seu de Plebe seu de Patribus vellet Consules faciendi u Livie l. 4. that the people might have liberty to choose the Consuls out of which rank of men they listed and at the first attempt did prevail so far that in stead of the two Consuls which they had before six Military Tribunes should be chosen by them to be possessed of all the Consular authority and they to be promiscuously elected out of the Patricians and the People as they saw convenient x Livie l. 4. and having got this ground they went on a main For not long after P. Licinius Calvus a meer Plebeian is made one of these Military Tribunes and shortly after that the Magister Equitum or the Commander of the horse Thus Silius and Aelius are made Questors those of Patrician rank having had the canvass and next that followed a Decree that the Docemviri Sacrorum who had the custody and charge of the Sibyls Books partim ex Plebe partim ex Patriciis a Id. lib. 6. should be indifferently chosen out of both Estates In little time the Tribunes pressing hotly for it L. Sextus obtains the Consulship b Id. ibid. C. Martius Rutilius is first made Dictator afterwards one of the Censors also c Id. lib. 7. and P. Philo is advanced to the place and dignity of the Prator d Id. lib. 8. Having thus took possession of all Civil Magistracy which were of any power and dignity in the Common-wealth the Tribunes would not rest nor content themselves untill the Commons were made capable of the Priesthood also which after some slight opposition made by Appius Claudius a Family that never yeelded any thing to advance the people was conferred upon them five Augures and four Pontifiâ—es being added to the former number all chosen and for ever to be chosen by and out of the Commons e Id. lib. 10. There were only now two places of respect and credit that of the Maximus Curio and the Pontifex Maximus both which the Nobles did pretend to belong to them but the Tribunes were resolved to have it otherwise According to which resolution C. Manilius got the Office of the Maximus Curio f Id. lib. 26. and in the close of all but a good while after Omnibus honoribus plebi communicatis g Rofin Antiq. Rom. l. 3. c. 22. after all other honors were conferred upon them or rather communicated to them one T. Coruncanius was declared the Pontifex Maximus All this and more they had but it would not satisfie 8 For there was wanting still both the power of Judicature and the Supreme Majestie of the State to make all compleat and to gain this the Tribunes must bestir themselves both with art and violence or else they could not hope to estate it on them A business of so high a nature that it was never in a way to be brought about till the two Gracehi undertook the contrivance of it who being men of excellent parts and great abilities did most unfortunately fall on the undertaking and being fallen upon it did devise all ways which either art or wit could present unto them to effect the work Of these Tiberius was the eldest who stumbling in the way on the Lex Agraria as being a means to make the poor people more confiderable and the rich less powerful and finding that Octavius one of his Colleagues did oppose him in it deposed him from his Office by force and violence only because he stood upon the right of his negative voice h Plutarch in Tib. Caio He had before inflamed the people by making a seditious speech to prefer their business and now he takes a course to inflame them more for the advancement of his own For one of his friends being found dead upon a sudden not without some suspicion of poyson as he gave it out he put on mourning apparrel and brought his sons before the people into the Common Forum beseeching them to have compassion on his Wife and Children as one that utterly despaired of his own safetie having for their sakes got the hatred of the Noble men And sometimes he would be the first man in the Market-place apparelled all in black his face swelled with tears and looking heavily upon the matter would pray the people to stand to him saying he was afraid his Enemies would come in the night and overthrow his house to kill him By means of which devices he so wrought upon them that many of them bought tents and lay about his house continually to keep him from the hands of his deadly Enemies So that being sure of their concurrence and assistance in any project which he should set on foot to advance himself under pretence of doing service to the Common-wealth he presently proposed a law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that any man that would might appeal from the Judges to the people in what cause soever And that he might be sure to embase the Senate to the improvement and increase of the peoples power he had prepared another of an higher nature which was to adde unto the Senate an equal number of the Equites or the Roman Knights who were to be of equal power and to have libertie of voting in all publick businesses with the antient Senators In passing which and other of his Popular laws he got this trick and he was very constant to it that if he found the sense of the house to be against him and was not like to carry with him the major part of the voyces he would
quarrel with his fellow Tribunes to spin out the time till his partie were all come together and if that could not do it neither then he adjourned the Assembly to some other day But yet for all these artifices and unworthy practises he could not compass the design but left it to be finished by his Brother Caius Who taking the same course to ingage the people which his Brâ—ther had pursued before brought those designes about which Tiberius failed in i Id. ibid. For first whereas the Senate were the only Judges in matters which concerned the affairs of the Common-wealth which made them no less reverenced by the Roman Knights then by others of the common people Caius prevailed so far that he gained a law for adding three hundred of these Equites to as many Senators for the Senate did consist of three hundred antiently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 giving them equall power of judging in all causes which were brought before them So that by gaining this and the former law of appealing to the people upon all occasions the people were estated in the power of Judicature and the dernier resort as the Lawyers call it was in them alone The only point now left was the Supreme Majestie and that did Caius very handsomely confer upon them without noise or trouble For whereas all other Orators when when they made their speeches turned themselves towards the Palace where the Senate sate he on the contrary turned himself towards the Market place where the people were and taught all other Orators by his Example to doe the like And thus saith Plutarch by the only turning of his look he gained a point of infinite consequence and importance 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 changing the Common-wealth from an Aristocratie to a meer Democratie which was the matter so aimed at by his Predecessors 9 The Tribunes had been insolent enough in the former times but the obtaining of these laws made them more unsufferable Before they used to quarrel all the greatest Officers as if the State could not consist but by their contentions there being no Magistrate so great nor man so innocent whom they exposed not sometimes to contempt and scorn and made not subject to their tyranniâ— The renowned Scipio himself the very Atlas of the State when it was in danger a man in whom there was not any thing but brave and gallant could not scape so clear but that he was accused by these factious Tribunes k Livie hist lib. 28. and forced to live retired in his Countrey-house far from the employments of that State which did not otherwise subsist but by his abilities Nor could they look on their Dictators but with eyes of malice although they had as much authoritie as that State could give them or any of their Kings had enjoyed before whom they endevour to make subject to their pride and tyrannie by all means imaginable And to that end sometimes denyed him the honor of a Triumph though he had deserved it in all mens judgements but their own and sometimes making this Magister Equitum l Id. lib. 22. to be of equal power and authoritie with him and finally sometimes they declaim against him m Id. ibid. to make him of no reputation with the common people And for their dealing with the Consuls it had been a complaint of old even in the dawning of the day of their new authoritie Consulatum captum oppressum a Tribunitiae potestate n Id. lib. 2. that the Consulship was suppressed and captivated by the power of the Tribunes and we can no where finde that they improved their modestie as they did their power Nor did they only quarrel with the Consuls and proceed no further though that had been an high affront to the Supreme Magistrate but threatned to commit them to the Prison also and many times their threatnings were not made in vain For thus we read that Caius Marius being Tribune o Plutarch in Mario threatned to send Cotta the Consul unto Prison but afterwards was taken off by fair perswasions and Sulpitus one as violent as he though not so valiant assaulted both the Consuls as they sate in the Senate house p Id. ibid. and killed one of their sons there who was not so quick of foot as to scape his hands Which though they were but bare attempts were yet lewd enough sufficiently to the dishonor of such eminent Magistrates and to the infamy and disgrace of the publick Government And therefore to make sure work of it and that the world might see they could more then threaten Quintius will tell you in the Dialogue with his Brother Cicero Brutum P. Scipionem tales tantos viros hominum omnium infimum sordidissinum Trib. Pl. C. Curiatium in vincula conjecisse q Cicero de Legibus lib. 3. that C. Curiatius a most base and unworthy person had caused such gallant men as Brutus and P. Scipio to be cast in Prison And if we make a further search we shall quickly finde that M. Drusus being Tribune caused Philip the Consul to be cast headlong out of his seat to the no small danger of his life only for interrupting him in the middle of a factious speech which was an insolencie beyond imprisonment To speak of their behaviour towards the other Magistrates were a thing impertinent For if the Consuls and Dictators could not scape their hands there is no question to be made but that the Praetors Censors Quaestors yea the Pontifices themselves were most abundantly debased and insulted on by these popular Tyrants 10 Thus have we brought the Tribunes to as great an height both for power and insolencie as were the Ephori before and thereby made them ready for the greater fall A fall which was not long a coming after they had made up the measure of their pride and tyrannie For Lucius Sylla having brought the estate of Rome under his command and knowing full well how dangerous these men would be to him if they were suffered to continue in their former power set forth a law by which they were reduced to their antient bounds inabled only to relieve not to wrong the Subject Sylla Tribunis Plâ—bis lege sua injuriae faciendae potestatem ademit auxilii ferendi reliquit as we read in Tullie r Id. ibid. A thing that much displeased the people and the Tribunes more But Sylla was no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no great applier of himself to the peoples humors and therefore cared but little how they took the matter Pompey succeeding him in power and in purpose too took a course quite contrary and re-established them in that authoritie whereof Sylla had of late deprived them For finding that the common people longed for nothing more then to see the Office of the Tribunes in the height again and being resolved to lay the foundation of his greatness on the affections and dependence of the common people
civil pleas to judge of strangers which abused the priviledges which they had in the City of briberie conspiracies false inscriptions in cases of adultery and publick crimes in points of trade and actions which concerned the Sâ—annaries t Jul. Pollâ—x in Onomall l. 8 c. 9. sect 1. as also to review the sentence of the Provost and the decrees of the Senate if occasion were and to give notice to the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Julius Pollux if any man preferred a law which was not profitable and expedient for the Common-wealth Such were the Officers and such the duty of those Officers ordained at Athens upon the last alteration of the Government which before we spake of and amongst these we finde not any popular Magistrate who was to have a care of the Common people and to preserve them in their rights and liberties from the oppression of the greater and more powerful Citizens much less set up of purpose to oppose the Senate And to say truth we must not look for any such amongst the nine nor in these times in which this alteration of the Government was first established They could not fall immediately from a Regal State to a Democratical but they must take the Aristocratie in the way unto it They had been under Kings at first or such as had the power of Kings although not the name And when they chose these Annual Officers they chose them ex nobilibus urbis out of the Nobles only as Eusebius hath it u Euseb Chron. which Scaliger is forced to grant to be so at first x Scaliger in Animadvers though out of a desire to confute his Author he would very fain have had it otherwise Whether or no they had such Officers as Calvin dreams of when they had setled their Democratie we shall see anon having first shewn by whom and by what degrees the government of the State was cast on the peoples shoulders and the form thereof made meerly popular or Democratical For certainly it is most true that never any Democratical State shewed it self at the first in its proper colours or came into the world by a lawful entrance but crept into it secretly at the back-dore either of faction or sedition 3 Now the first man that gave the hint to the Democratie and made the people fall in love with a factious libertie was Theseus a valiant but unfortunate King who the better to induce the people of Attica to desert their dwellings and be incorporated into Athens promised them as before was said that all of them should have some share in the publick government and after the form and manner of a Common-wealth And so far he performed his promise as to devest himself of some parts of Soveraigntie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and laid the first foundation of that popular State which was after built but he paid deer for it y Plutarch in Thâ—seo For the people who before had been so tractable that they would do whatsoever their Kings commanded at the first words speaking began to take more state upon them and became so stub born that they would do nothing on command but looked to be flattered with and courted upon all occasions z Idâ—ibid Which being noted by Menestheus a popular man but otherwise of the Royal bloud he so sed that humor and wrought so finely on them by his wit and cunning that Theseus was in fine deposed and his sons disherited and the remainder of the Royaltie conferred by them upon Menestheuâ— as their deed of gift And though no doubt the people did improve their power both when their Kings became elective and when their Governors were elected but for term of years and specially when the Magistrates were no more then Annual yet they could get no further then an Aristocratie till the time of Solon which were about 170 years after the Annual Officers were first established the Annual Officers being established in the first year of the 5. Olympiad and Solons reformation hapning in the second of the 47. But Solon being chosen Provost or the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and finding the Republick much embroyled in dangerous factions which had been long since bred between the Nobles and Commons in the change of Governments took on him by the joynt consent of both parties the emendation of the laws and the reducing of the State of the Common-wealth to a more peaceable and equal temper a Id. in Solone And he so ordered their affairs that the chief Offices of the City remained in the hands of the Nobilitie as before they were which for the time contented them but the election of those Officers and the dernier resort or the admittance of Appeals upon Writs of error as we call them that he confirmed unto the people which did not only please the people for the present time but put them into a condition of drawing to themselves the supreme authority Insomuch that Aristotle though he seem to say that Solon setled in the City a mixt form of Government the Court of Areopagites which he also instituted pretending to an Oligarchie the Annual Officers or Archontes to an Aristocratie and the power of judicature being vested in the common people unto a Democratie b Aristot Politic l. 2. c. 10. yet he confesseth at the last that this power of judicature and the necessity which all men found of applying themselves unto the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 changed the Republick in conclusion to a meer Democratie as it continued till his time But yet it was not brought about but with great adoe Pisistratus first reducing the estate to an absolute Monarchy c Plutarch in Soâ—one which because he got it from them by fraud and force they called a Tyranny and after Clisthenes freeing his countrey from that yoke by driving his posterity out of Attica restoring it unto an Aristocratie d Id. in Aristide in Pericle et Cimâ—nc as before it was At last it seemed good to Aristides though for a time he concurred with Clisthenes in his form of government to cast a more indulgent eye on the common people who had behaved themselves exceeding gallantly in the dreadfull war against the Persians and to cause a law to be enacted that all authority and power of government should be communicated equally to all the Citizens e Id. in Aristide 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that they should be capable of all the Offices and honours in the Common-wealth Which as it added much to the authority of the common people so that authority was increased much more by the Arts of Pericles who bearing a grudge unto the Court of the Areopagites whereof he was never any Member and finding that the power thereof and of the Senate of five hundred did derogate exceeding much from the power of the people to whose faction he was wholly wedded by the help and setting on of Ephialtes a busie and
their Priests 3 This brings me on to the power and practise of the Priests in the land of Judah who from the very first beginning of that State and Nation to the final dissolution of it were of great authoritie not only in composing of inferiour difâ—erences which casually did arise amongst the people but in the managerie of the chief affairs both of State and Government and that not gained by connivence of Princes or by entrenching on the rights of the secular powers but by the institution and appointment of the Lord himself When Moses first complained that the sole Government of the people was a burden too heavie for him to bear it pleased God to appoint a standing Consistory of r Numb 11. v. 16. Seventie Elders men of abilitie and wisdom who were to have a share in the publick Government and to decide amongst themselves such weightie businesses great matters s Exod. 18. v. 22. as the Scripture calls them which were reserved to Moses by a former Ordinance Of these the Priests as men who for the most part were at better leisure then the rest to attend the service and generally of more abilities to goe through with it made alwayes a considerable number and many times the major part In which respect it was ordained by the Lord when a matter did arise to be scanned in judgement between bloud and bloud between plea and plea and stroke and stroke being matters of controversie within their gates the people should arise and goe unto the place which the Lord should choose and come unto the Priests the Levites and unto the Judge that shall be in those days and enquire and they shall shew them the sentence of judgement t Deut. c. 17. v. 8 9. The like is also ordered in the case of false witâ—esses where it is said that If a false witness rise up against any man to testifie against him that which is wrong then both the men between whom the controversie is shall stand before the LORD before the Priests and Judges which shall be in those dayes u Deut. 19. v. 17. Which passages are not understood of any particular Priests or Judges dispersed in their several dwellings up and down the Countrey but of the Priests and other Judges united and assembled in that famous Consistorie of the 70 Elders conveened together in that place which the Lord should choose called by the Jews the Sanhedrim by the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and was the great Councel of estate for the Jewish Nation To this Josephus doth attest where he informeth us 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 x Joseph adv Appâ—on lib. 2. that the Priests of Jewrie had the cognâ—zarce of all doubtful matters more plainly Philo who knew well the customs of his native Countrey where he affirms expressly and in terminis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 y Philo de vita Mesis that the Priests had place and suffrage in this great 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Court of Sanhedrim And this is that which Casaubon doth also tell us from the most learned and expert of the Jewish Rabbins Non nisi nobilissimos â—e sacerdotibus Levitis caeteroque populo in lege peritissimos in Sanhedrim eligi z Casaub Exercit in Baron 1. Sect 3. that is to say that none but the most eminent of the Priests the Levites and the rest of the people and such as were most conversant in the Book of the Law were to be chosen into the Sanhedrim But to return again to the Book of God the power and reputation of this Court and Consistorie having been much diminished in the times of the Kings of Judah was again revived by Jehosophat Of whom we read that he not only did appoint Judges in the laâ—d throughout all the fenced Cities of IVDAH a 2 Chron. 19. 5. but that he established at HIERVSALEM a standing Councel consisting of the Levites and of the Priests and of the chief of the Fathers of ISRAEL for the judgements of the Lord and for controversies b Ibid. r. 8. according to the model formerly laid by God himself in the Book of Deuteronomie Which Court or Councel thus revived continued in full force authoritie and power during the time of the captivitie of Babylon as appears plainly by that passage in the prophesie of Ezekiel where it is said of the Priests even by God himself in controversie they shall stand in judgement c Ezeck 44. v â—24 compared with another place of the same Prophet where he makes mention of the Seventie of the Antients of the house of ISRAEL d Id. c. 8. v. 11. and Jaazaniah the son of Shaphan standing in the midst as Prince of the Senate And after their return from that house of bondage they were confirmed in this authoritie by the Edict and Decree of Artaxerxes who gave Commission unto EZRA to set Magistrates and Judges e Ezra c. 7. â— 25. over the people not after a new way of his own devising but after the wisdom of his God e Ezra c. 7. â— 25. declared in the foregoing Ages by his servant Moses In which estate they stood all the times succeeding until the final dissolution of that State and Nation with this addition to the power of the holy Priesthood that they had not only all that while their place and suffrage in the Court of Sanhedrim as will appear to any one who hath either read Josephus or the four Evangelists but for a great part of that time till the reign of Herod the Supreme Government of the State was in the hands of the Priests In which regard besides what was affirmed from Synesius formerly it is said by Justin Morem esse apud Judaeos ut eosdem Reges sacerdotes haberent that it was the custom of the Jews for the same men to be Kings and Priests f Justin hist l. 36. and Tacitus gives this general note Judaeis Sacerdotii honorem firmamentum potentiae esse that the honour given unto the Priesthood amongst the Jews did most especially conduce to the establishment of their power and Empire g Tacit. hist l 3. And yet I cannot yeeld to Baronius neither where he affirms the better to establish a Supremacie in the Popes of Rome Summum Pont. arbitrio suo moderari magnum illud Conciliâ—m c. h Baron Annal. â—n 57. that the high Priest was alwayes President of the Councel or Court of Sanhedrim it being generally declared in the Jewish Writers that the High Priest could challenge no place at all therein in regard of his office and descent but meerly in respect of such personal abilities as made himself to undergo such a weightie burden for which see Phagius in his notes on the 16. of Deuteronomie 4 Thus have we seen of what authoritie and power the Priests were formerly as well amongst the Jews as amongst the Gentiles we must next see whether they have not
that this is only yielded unto such of the Clergy as are possessed os Lands and Houses in those several places where such elections are to be made and not then neither in most places except it be to make a party for particular ends especially where some good man or the main cause it self is concerned therein which as it totally excludeth the greatest part of the Clergy from having any voyce at all in these Elections the greatest part of the Clegy the more the pity having neither Lands nor Houses to such a value in fee simple so it gives no more power unto those that have than what of necessity must serve I am sure occasionally it may to their own undoing For to say truth those that give out that the Clergy may give voice at such elections use it but as a shift for the present turn intending nothing less indeed as hath oft been seen than that the Clergy should be capable of so great a trust The reason is because there is not any Free-man of a City or a Corporate town who hath a voice in the election of a Citizen to serve in Parliament nor almost any Cottager or Free-holder who hath a voice in the election either of a Knight or Burgesse but is directly eligible to the place himself Of Citizens Burgesses â—lected from the very meanest of the people we have many instances and shall have more according as they find their strength and have received a taste of the sweets of Goverment And for the choosing of the Knights of the seveveral Shires it is determined by the Statutes that as 40 s. land of free-hold per Annum q 8 Hen. 6. c. 7. is enough to qualifie a Clown for giving a voice at the election so the same Clown if he have 20l. land per Annum is capable of being chosen for a Knight of the Shire as appears plainly and expresly by the Statute law For though the writ directed to the severall and respective Sheriffs prescribe a choice of duos milites gladio cinctos yet we know well that by the Statute of King Henry 6. which is explanatory in this case of the Common law such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights r 23 Hen. 6. 15. are made as capable as a dubbed Knight to attend that service and he that hath no more than 20 l. per Annum either in Capite or Socage is not only able by the law to be made a Knight s 1 Ed. 2. c. 1. but was compellable thereunto even by the Statute-Law it self untill the Law was lately altered in that point t 17 Carâ—l c. 1. And on the other side it is clear enough for there have been of late some experiments of it that though a Clergy-man be born an Esquire or Gentleman for they are not all born ex fece Plebis as the late Lord Brook u L. Brook against Episcopacy forgetting his own poor extraction hath been pleased to say and though he be possessed of a fair Estate descended to him from his Ancestors or otherwise possessed of some Lands or Houses in Town Burrough or City whereby he stands as eligible in the eye of the Law as any Lay-Gentleman of them all yet either he is held uncapable and so pretermitted or if returned rejected at the House it self to his fowl reproach It is a Fundamental constitution of the Realm of England that every Free-man hath a voice in the Legislative power of Parliament it is an old rule in Politicâ—s â—uod omnes tangit ab omnibus tractari debet x And so acknowleged in a writ of Summons of K. Edw. 1. Which being now denyed to the English Clergy reduceth to them to that condition which St. Paul complains of and make them no otherwise accounted of by the Common people than as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the filth and off-scowring of the world to this very day 12. This tempts me to a brief discussion of a question exceeding weighty in it self but not so much as thought of in this great disfranchisement the slavery obtruded lately on the English Clergy that is to say whether that any two of the three Estates conspiring or agreeiug together can conclude on any thing unto the prejudice of the third Bodinus that renowned States-man doth resolve it negatively and states it thus nihil a duobus ordinibus discerni posse quo uni ex tribus incommodum inferatur si res ad singulos ordines seorsum pertinet z Bodin de Rep. l. 3. c. 7. that nothing can be done by two of the Estates to the disprofit of the third in case the point proposed be such as concerns them severally The point was brought into debate upon this occasion Henry the 3d. of France had summoned an Assembly of the three Estates or Conventus Ordinum to be held at Bloys Anno 1577. The form and order of the which we have at large described by Thuanus Lib. 63. But finding that he could not bring his ends about so easily with that numerous body as if they were contracted to a narrower compass he caused it to be mov'd unto them that they should make choice of 36 twelve of each Estate quosâ— Rex cum de postulatis decerneret in consilium adhibere dignaretur a Thuanus in hist temp l. 63. whom the King would deign call to counsail for the dispatch of such affairs and motions as had been either moved or proposed unto him Which being very readily assented to by the Clergy and Nobility who hoped thereby to find some favour in the Court and by degrees to be admitted to the Privy Counsel was very earnestly opposed by Bodinus being then Delegate or Commissioner for the Province of Veromandois who saw full well that if businesses were so carried the Commons which made the third Estate would find but little hopes to have their grievances redressed their petitions answered b Bodin de Rep. l. 1. c. 7 And therefore laboured the rest of the Commissioners not to yield unto it as being utterly destructive of the Rights and Liberties of the Common people which having done he was by them intrusted to debate the business before the other two Estates and did it to so good effect that at the last he took them off from their resolution and obtained the cause What Arguments he used in particular neither himself nor Thuanus telleth us But sure I am that he insisted both on the antient customes of the Realm of France as also of the Realms of Spain and England and the Roman Empire in each of which it was received for a ruled case nihil a duobus ordinibus statui posse quo uni ex tribus prejudicium crearetur that nothing could be done by any of the two Estates unto the prejudice of the third And if it were a ruled case then in the Parliament of England there is no reason why
now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assemblie or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting aids and subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent f Contin Thuani An. 1610. the Kings themselves together with their Treasurers and Under-officers determine of the taxes g View of France and they that do complain of grievances may either have recourse to the Courts of justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his sales or grants of the Crown-lands the publick patrimony of the Kingdome which were wont to be the proper subject and debates of these grand Assemblies they also have been so disposed of that the Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations and superficially surveyeth the Kings grants and sales * Andr. Du Mesn which they seldom cross The Kings Car tel est nostre plaisir is the Subjects law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerfull as any Act of Parliament Of which Bodinus doth not only say in these general terms Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas k Bodin de Rep. lib. 1. cap. 8. that many times these Kings did abrogate some antient laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailled nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the authority of that Court so great and awfull that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monseiur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandements that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio l Id. ibid. but a constant testimony and expression of the good affections of the subject to their Lord and Soveraign But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which joyn'd with certain of his Counsel and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his Heirs and Successors 5. But to proceed Bodinus having shewn what dutifull respects the Convention of Estates in France shewed unto their King addes this note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur m Id. ibid. the King of Spain hath more obedience and observance from his three Estates than that which is afforded to the Kings of France Which being but general and comparative is yet enough to let us see that the Assembly of Estates in the Realms of Spain which they call the Curia is very observant of their King and obsequious to him and have but little of that power which is supposed by our Author to be inherent in the three Estates of all the Christian Kingdoms But this Bodinus proveth more particularly ascribing to the King and to him alone the power of calling this Assemblie when he sees occasion and of dissolving it again when his work is done according as is used both in France and England And when they are assembled and met together their Acts and consultations are of no effect further than as they are confirmed by the Kings consent Which he declareth in the same form eadem formulà quâ apud nos that hath accustomably been used by the Kings of France which is authoritative enough that is to say n Id. ibid. p. 90. decernimus statuimus volumus We will and we appoint and we have decreed The Kings of Spain though not so despotical in their Government as the French Kings are are as absolute Monarchs and have as great an influence on the three Estates to make them pliant to their will and to work out their own ends by them as ever had the French Kings on their Courts of Parliament a touch whereof we had before in the former Chapter And this we may yet further see by their observance of the pleasure of King Philip the 2d Who having maried the Lady Elizabeth Daughter of Henry the 2d of France Convocatos Castellae reliquarum Hispaniae Provinciarum Ordines o Thuan. â—ist sui temp h 23. l. calling together the Estates of Castile and his other Provinces of Spain he caused them to swear to the succession of his Son Prince Charles whom he had by the Lady Mary of Portugal and after having on some jealousies of State put that Prince to death caused them to swear to the succession of another son by the Lady of Austria And for the power of his Edicts which they call Pragmaticas they are as binding to the Subject as an Act of Parliament or any kind of Law whatever examples of the which are very obvious and familiar in the Spanish Histories For though
be imputed to the three Estates convened in Parliament or to any power or Act of theirs but only praefervido Scotorum ingenio z Rivet cont tenuit as one pleads it for them unto the natural disposition of that fierce and head-strong people yet easilier made subject unto rule and government The three Estates assembled in the Court of Parliament when in the judgement of our Author they are most fit to undertake the business have for the most part had no hand in those desperate courses 7. And now at last we ate come to England where since we came no sooner we will stay the longer and here we shall behold the King established in an absolute Monarchy from whom the meeting of the three Estates in Parliament detracteth nothing of his power and authority Royal. Bodin as great a Politick as any of his time in the Realm of France hath ranked our Kings amongst the absolute Monarch of these Western parts a Bodin de Rep. l. 1. c. 8. And Camden as renowned an Antiquary as any of the Age he lived in hath told us of the King of England supremam potestatem merum imperium habere b Camden in Britan. descript that he hath supreme power and absolute command in his dominions and that he neither holds his Crown in vassallage nor receiveth his investisture of any other nor acknowledgeth any Superiour but God alone To prove this last he cites these memorable words from Bracton an old English Lawyer omnis quidem sub Rege ipse sub nullo sed tantum sub deo that every man is under the King but the King under none saving only God But Bracton tells us more than this and affirms expresly that the King hath supreme power and jurisdiction over all causes and persons in this his Majesties Realm of England that all jurisdictions are vested in him and are issued from him and that he hath jus gladii or the right of the sword for the better governance of his people This is the substance of his words but the words are these c Bracton de leg Aâ—gl l. 2. c. 24. Sciendum est saith he quod ipse dominus Rex ordinariam habet jurisdictionem dignitatem potestatem super omnes qui in regno suo sunt Habet enim omnia jura in manu sua quae ad coronam laicalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernandum c. He addes yet surther Habet item in potestate sua leges constitutiones d Id. l. 2. c. 16. that the Laws and constitutions of the Realm are in the power of the King by which words whether he meaneth that the Legislative power is in the King and whether the Legislative power be in him and in him alone we shall see anon But sure I am that he ascribes unto the King the power of interpreting the Law in all doubtfull cases in dubiis obscuris domini Regis expectanda interpretatio voluntas which is plain enough For though he speaketh only de chartis Regiis factis Regum of the Kings deeds and charters only as the words seem to import yet considering the times in which he lived being Chief Justice in the time of King Henry the 3d. wherein there was but little written Law more than what was comprehended in the Kings Grants and Charters he may be understood of all Laws whatever And so much is collected out of Bractons words by the L. Chancellor Egerton of whom it may be said without envy that he was as grave and learned a Lawyer as ever sat upon that Bench. Who gathereth out of Bracton that all cases not determined for want of foresight are in the King to whom belongs the right of interpretation not in plain and evident cases but only in new questions and emergent doubts and that the King hath as much right by the constitutions of this Kingdom as the Civil law gave the Roman Emperors where it is said Rex solus judicat de causa a jure non definita e Case of the Post-nati p. 107 108. And though the Kings make not any Laws without the counsel and consent of his Lords and Commons whereof we shall speak more in the following Section yet in such cases where the Laws do provide no remedy and in such matters as concern the politick administration of his Kingdoms he may and doth take order by his Proclamations He also hath authority by his Prerogative Royal to dispense with the rigour of the Laws and sometimes to pass by a Statute with a non obstante as in the Statute 1 Henr. 4. cap. 6. touching the value to be specified of such lands offices or annuities c as by the King are granted in his Letters patents But these will better come within the compasse of those jura Majestatis or rights of Soveraignty which our Lawyers call sacra individua f Camden in Bâ—it sacred by reason they are not to be pryed into with irreverent eyes and individual or inseparable because they cannot be communicated unto any other Of which kind are the levying of Arms g Case of our Assairs p. 3. suppressing of tumults and rebellions providing for the present safety of his Kingdom against sudden dangers convoking of Parliaments and dissolving them making of Peers granting liberty of sending Burgesses to Towns and Cities treating with forein States making war leagues and peace granting safe conduct and protection indenizing giving of honor rewarding pardoning coyning printing and the like to these But what need these particulars have been looked into to prove the absoluteness and soveraignty of the Kings of England when the whole body of the Realm hath affirmed the same and solemnly declared it in their Acts of Parliament In one of which is affirmed h 16 Rich. 2. c. 5. that the Crown of England hath been so free at all times that it hath been in no earthly subjection but immediatly to God in all things touching the regality of the said Crown and to none other And in another Act that the Realm of England is an Empire governed by one supreme head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body politick compact of all sorts and degrees of people divided in terms and by names of Spiritualty and Temporalty been bounden and ought to bear next to God a natural and humble obedience i 24 Henr. 8. c. 12. And more than so that the King being the supreme head of this Body Politick is instituted and furnished by the goodness and sufferance of Almighty God with plenary whole and entire power preheminence authority prerogative and jurisdiction to render and yield justice and final determination to all manner of Subjects within this Realm and in all causes whatsoever Nor was this any new Opinion invented only to comply with the Princes humour but such as is
or interrupted by any claim of right made in the behalf of the two Houses which is as sure a title as the Law can make the Houses have declared by a Act of Parliament a Sâ—at 7 Ed. 1. cap. 1. that of right it belongs unto the King streightly to defend that is prohibit all force of Arms and that the Parliament is bound to aid him in that prohibition Touching the Royal navy and the ports and forts the Kings prescription to them is so strong and binding that in the 3d. of Edward 3. Edw. 3. the House of Commons did disclaim the having cognisance of such matters as the guarding of the Seas and marches of the Kingdome which certainly they had not done had they pretended any title to the ports and navy As for suppressing tumults and providing for the safety of the Kingdom against sudden danger the Law commits it solely to the care of the King obliging every Subject by the duty of his allegeance to aid and assist him at all seasons when need shall require b 11 Henr. 7. c. 18. And for their power of declaring law in the House of Peers wherein they deliver their opinion in the point before them in true propriety of speech they have none at all c Case of our Affairs p. 4. And this is that which was affirmed by his Majesty at the end of the Parliament Anno 1628. saying that it belonged only to the Iudges under him to interpret laws and that none of the Houses of Parliament joynt or separate what new Doctrine soever might be raised had any power either to make or declare law without his consent d 3 Car. And if it be done with his consent it is not so properly the declaring and interpreting of an old law as the making rather of a new saith a learned Gentleman e Case of our affairs P. 5. 9. Others have found out a new way to invest the Parliament with the robes of Soveraignty not as superiour to the King but co-ordinate with him and this say they appears sufficiently in that the two Houses of Parliament have not only a power of consulting but of consenting and that too in the highest office of the Monarchy whereof they are a Coordinative part the making of Laws f Fuller Answer to D. F. p. 2. Which dangerous doctrin as it was built at first on that former error which makes the King to be one of the three Estates in Parliament so it is super-structed with some necessary consequents whether more treasonable or ridiculous it is hard to say For on these grounds the Author of the Fuller Answers hath presented us with these trim devises g Id. pag. 1. viz. that England is not a simple subordinate and absolute but a coordinative and mixt Monarchy that this mixt Monarchy is compounded of three coordinate Estates a King and two Houses of Parliament that these three make but one supreme but that one is a mixt one or else the Monarchy were not mizt and finally which needs must follow from the premises that although every Member of the Houses sâ—orsim taken severally may be called a Subject yet all collective in their houses are no Subjects Auditum admissi risum teneatis Can any man hear these serious follies and abstain from laughter or think a fellow who pretends both to wit and learning should talk thus of a Monarchy which every one that knoweth any thing in Greek know to imply the supreme government of one compounded of three coordinate Estates and those coordinate Estates consisting of no fewer than 600 persons Or that a man who can pretend but to so much use of reason as to distinguish him from a beast could fall on such a senselest Dotage as to make the same man at the same time to be a Subject and no Subject a Subject in the Streets and in his private House no Subject when he sits in Haberdashers Hall for advance of moneys or in either of the two Houses of Parliament And yet this senseless Doctrine is become so dangerous because so universally admired and hearkned to that the beginning and continuance of our long Disturbances may chiefly be ascribed unto this opinion to which they have seduced the poor ignorant people The rather in regard that some who have undertook the confutation of these brainless solies have most improvidently granted not only h As in the book called Conscience satisfied that the two Houses of Parliament are in a sort coordinate with the King ad aliquid to some Act or exercising of the supreme power that is to the making of Laws but that this coordination of the three Estates of which the King is yielded every where for one is fundamental and held by the two Houses on no worse a title than a fundamental Constitution which is as much as any reasonable Parliamentarian need desire to have Therefore in Answer to the Fuller not taking notice of his foolish and seditious inferences we will clear those points 1. That the two Houses of Parliament are not coordinate with the King but subordinate to him And 2. that the power of making laws is properly and legally in the King alone As for the first we had before a Recognition made by Act of Parliament by which the Kingdom of England is acknowledged to be an Empire governed by one supreme head and King to whom all sorts and degrees of people ought to bear next to God a natural and humble obedience i 24 H. 8. c. 12. which certainly the Lords and Commons had not made to the dethroning of themselves their heirs and successors from this coordinative part of Soveraignty if any such coordination had been then believed Or if it be supposed to excuse the matter that K. Henry the 8th being a severe and terrible Prince did wrest this Recognition from them which yet will hardly serve for a good defence what shall we say to the like recognition made in the beginning of Queen Elizabeths reign k 1 Eliz. c. 1. when she was green in State and her power unsetled and so less apt to work upon her people by threats and terrors Assuredly had the Houses dream't in those broken times of that coordinative Soveraignty which is now pretended they might have easily regained it and made up that breach which by the violent assaults of King Henry the 8th had been made upon them which was a point they never aimed at Besides if this coordinative mâ—jesty might be once admitted it musts needs follow that though the King hath no Superiour he hath many Equalls and where there is Equality there is no Subjection But Bracton tells us in plain terms not only that the King hath no Superiour in his Realm except God almighty but no Equal neither and the reason which he gives is exceeding strong Quia sic amitteret praeceptum cum par in Parem non habeat potestatem l Bracton de leg Aâ—gl
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the
beginning of the Reign of King Edward the third till the beginning of the reign of King Henry the 7th save that sometimes we find the Lords complaining r 10 Ed. 3. c. or petitioning Å¿ 21 Ed. 3. c. and the Commons assenting t 28 Ed. 3. c. as their occasions did require and sometime also no other motive represented but the Kings great desire to provide for the ease and safety of his people upon deliberation had with the Prelates and Nobles and learned men assisting with their mutual Counsell u 23 Ed. 3. And all this while there is no question to be made but that the power of making Laws was conceived to be the chiefest flower of the Royal Diademe to which the Lords and Commons neither joynt nor separate did not pretend the smallest Title more than petitioning for them or assenting to them it being wholly left to the Kings grace and goodness whether he would give ear or not unto their petitions or hearken unto such advise as the Lords or other great men gave him in behalf of his people And this is that which was declared in the Parliament by the Lords and Commons and still holds good as well in point of Law as Reason that it belonged unto the regality of the King to grant or deny what Petitions x 2 Her 5. in Parliament he pleaseth But as the Kings came in upon doubtfull Titles or otherwise were necessitated to comply with the peoples humours as sometimes they were so did the Parliaments make use of the opportunities for the increase of their authoritie at least in the formalities of Law and other advantages of expression So that in the minority of King Henry the sixth unto those usual words by the advise and assent of the Lords Spiritual and Temporal and at the special instance and request of the Commons which were inserted ordinarily into the body of the Acts from the beginning of the reign of King Henry the 6th was added this By the authority of the said Parliament y 3 Hen. 6. c. 2. 8 H. 6. 3. c. But still it is to be observed that though those words were added to the former clause yet the power of granting or ordaining was acknowledged to belong to the King alone as in the places in the Margin where it is said Our Lord the King considering the premises by the advise and assent and at the request aforesaid hath ordained and granted by the authority of the said Parliament 3 H. 6. 2. and our Lord the King considering c. hath ordained and established by authority of this Parliament 8 H. 6. 3. And thus it generally stood but every general rule may have some exceptions till the beginning of the reign of King Henry the 7th about which time that usual clause the special instance or request of the Commons began by little and little to be laid aside and that of their advise or assent to be inserted in the place thereof for which I do refer you to the book at large Which though it were some alteration of the former stile and that those words By the authority of this present Parliament may make men think that the Lords and Commons did then pretend some title unto the power of making laws yet neither advising or assenting are so operative in the present case as to transfer the power of making laws to such as do advise about them or assent unto them not can the alâ—eration of the forms and stiles used in antient times import an alteration of the form of Government unless it can be shewed as I think it cannot that any of our Kings did renounce that power which properly and solely did belong unto them or did by any solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And this is that which is resolved and declared in our Common law where it is said z Cited in the unlawfulness of resist p 107. Le Roy fait les loix avec le consent du Seigneurs et communs et non pas les Seigneurs et communs avec le consent du Roy that is to say that the King makes Laws in Parliament by the assent of the Lords and Commoni and not the Lords and Commons by the assent of the King And for a further proof of this and for the clearing of this point that the Lords and Commons pretend to no more power in the making of laws than opportunity to propound and advise about them and on mature advise to give their several Assents unto them we need but look into the first Act of the Parliament in the third year of King Charles being a Recognition of some antient Rights belonging to the English subject An Act conceived according to the primitive form in way of a Petition to the Kings most excellent Majesty a Statut. 3 Carol. in which the Lords and Commons do most humbly pray as their Rights and Liberties that no such things as they complained of might be done hereafter that his Majesty would vouchsafe to declare that the Awards doings and proceedings to the prejudice of his people in any of the premises shall not be drawn hereafter into consequence or example and that he would be pleased to declare his Royal pleasure that in the point aforesaid all his Officers and Ministers should serve him according to the Laws and Statutes of this Realm To which although the King returned a fair general Answer assuring them that his Subjects should have no cause for the time to come to complain of any wrong or oppressions contrary to their just Righâ—s and Liberties yet this gave little satisfaction till he came in person and causing the Petition to be distinctly read by the Clerk of the Crown b Ibid. returned his Answer in these words Soit droit fait come est desire that is to say let right be done as is desired Which being the very formal words by which the said Petition and every clause and Article therein contained became to be a law and to have the force of an Act of Parliament and being there is nothing spoken of the concurrent authority of the Lords and Commons for the enacting of the same may serve instead of many Arguments for the proof of this that the Legislative power as we phrase it now is wholly and solely in the King although restrained in the exercise and use thereof by constant custome unto the counsel and consent of the Lords and Commons Le Roy veult c Smith de Rep. Angl. or the King will have it so is the imperative phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons agitate and propound what Laws they please for their ease and benefit as generally all Laws and Statutes are more for the ease and benefit of the Subject than the advantage of the King yet
versari The States saith he of England have a kind of authority but all the rights of Soveraignty and command in chief are at the will and pleasure of the Prince alone 12. And to say truth although the Lords Commons met in Parliament are of great authority especially as they have improved it in these later times yet were they never of such power but that the Kings have for the most part over-ruled them made them pliant conformable to their own desires and this not only by themselves but sometimes also by their Judges by their counsel often For such was the great care and wisdom of our former Kings as not to venture single on that numerous body of the two Houses of Parliament whereby the Soveraignty might be so easily overmatched but to take with them for Assistants as well the Lords of their Privy Counsel with whom they might advise in matters which concerned them in their Soveraign rights as their learned Counsel as they call them consisting of the Judges and most eminent Lawyers from whom they might receive instruction as the case required and neither do nor suffer wrong in point of Law and by both these as well as by the power and awe of their personal presence have they not only regulated but restrained their Parliaments And this is easily demonstrable by continual practice For in the Statute of Bigamie made in the fourth k 4 Ed. 1. year of King Edward 1. it is said expreâ—ly that in the presence of certain reverend Fathers Bishops of England and others of the Kings Counsel the Constitutions under-written were recited and after published before the King his Couusel forasmuch as all the Kings Counsel as well Justices as others did agree that they should be put in writing and observed In the Articuli super Chartas when the Great Charter was confirmed at the request of the Prelates Earls and Barons l 28 Ed. 1. c. 2. we find these two clauses the one in the beginning thus Nevertheless the King and his Counsel do not intend by reason of this Statâ—te to diminish the Kings right m Ibid. c. 20. c. The other in the close of all in these following words And notwithstanding all these things mentioned or any part of them both the King and his Counsel and all they which were present at the making of this Ordinance do will and intend that the right and prerogative of his Crown shall be saved in all things In the 27th of King Edward the 3d. n 27 Ed. 3. The Commons presenting a Petition to the King which the Kings Counsel did mislike were content thereupon to mend and explain their Petition the form of which Petition is in these words following To their most redoubted Soveraign Lord the King praying the Commons that whereas they have prayed him to be discharged of all manner of Articles of the Lyre c. which Petition seemeth to his Counsel to be prejudicial unto him and in disherison of his Crown if it were so generally granted his said Commons not willing nor desiring to demand things of him which should fall in disherison of him or of his Crown perpetually as of Escheats c. but of trespasses misprisions negligences and ignorances c. In the 13 of the reign of King Richard the 2d when the Commons did pray that upon pain of forfeiture the Chancellor or Counsel of the King should not after the end of the Parliament make any Ordinance against the Common law o 13 Rich. 2. the King by the advise of his Counsel answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save his Regalities as his Predecessors have done In the 4th year of King Henry 4. p 4 Hen. 4. when the Commons complained against Sub-poenae's and other writs grounded upon false suggestions the King upon the same advise returned this answer that he would give in charge to his Officers that they should abstain more than before time they had to send for his Subjects in that manner But yet saith he it is not our intention that our Officers shall so abstain that they may not send for our Subjects in matters and causes necessary as it hath been used in the time of our good Progenitors Finally not to bring forth more particulars in a case so clear it was the constant custome in all Parliaments till the Reign of King Henry 5. q Henr. 5 that when any Bill had passed both houses and was presented to the King for his Royal Assent the King by the advise of his Privy Counsel or his Counsel learned in the Laws or sometimes of both did use to crosse ouâ— and obliterate as much or as little of it as he pleased to leave out what he liked not and confirmed the rest that only which the King confirmed being held for Law And though in the succeeding times the Kings did graciously vouchsafe to pass the whole Bill in that form which the Houses gave it or to reject it wholly as they saw occasion yet still the Privy Counsel and the Judges and the Counsel learned in the Laws have and enjoy their place in the House of Peers aswell for preservation of the Kings rights and Royalties as for direction to the Lords in a point of Law if any case of difficulty be brought before them on which occasions the Lords are to demand the opinion of the Judges and upon their opinions to ground their Iudgement As for example In the Parliament 28 of Hen. 6. The Commons made sure that VVilliam de la Pole Duke of Suffolk should be committed to Prison for many treasons and other crimes r 28 Hen. 6 and thereupon the Lords demanded the opinion of the Judges whether he should be committed to Prison or not whose Answer was that he ought not to be committed in regard the Commons had not charged him with any particular offence but with generals only which opinion was allowed and followed In another Parliament of the said King held by Prorogation one Thomas Thorpe the Speaker of the House of Commons was in the Prorogation-time condemned in 1000 l. dammages upon an Action of Trespass at the sute of Richard Duke of York and was committed to Prison for execution of the same The parliament being reassembled the Commons made suâ—e to the King and Lords to have their Speaker delivered to them according to the privilege of Parliaments t The privilege of the Barons p. 15. the Lords demanded the opinion of the Judges in it and upon their Answer did conclude that the Speaker should still remain in Prison according to Law notwithstanding the privilege of Parliament and according to this resolution the Commons were commanded in the Kings name to choose one Tho Carleton for their Speaker which was done accordingly Other examples of this kind are exceeding obvious and for numbers infinite yet neither more
made for the common use and benefit of the Subject they are left at liberty and may proceed in governing the people given by God unto them according to their own discretion and the advice of their Counsel New Laws are chiefly made for the Subjects benefit at their desire on their importunate requests for their special profit not one in twenty nay I dare boldly say not one in an hundred made for the advantage of the King either in the improvement of his power or the increase of his Revenue Look over all the Acts of Parliament from the beginning of the reign of King Henry 3. to the present time and tell me he that can if he finds it otherwise Kings would have little use of Parliaments and less mind to call them if nothing but the making of new Laws were the matter aimed at And as for raising monies and imposing taxes it either must suppose the Kings to be always unthrifts that they be always indigent and necessitous and behind-hand with the world which are the ordinary effects of ill husbandry or else this argument is lost and of little use For if our Kings should husband their estates to the best advantage and make the best benefit of such escheats and forfeitures conâ—iscations as day by day do fall unto them If they should follow the example of K. Henry 7. and execute the penal Laws according to the power which those Laws have given them and the trust reposed in them by their People if they should please to examine their revenue and proportion their expence to their comings in there would be litle need of subsidies and supplies of money more than the ordinary aids and impositions upon Merchandize which the Law alloweth of and the known rights of Sovereignty backed by prescription and long custom have asserted to them So that it is by Accident not by right and nature that the Parliament hath any power or opportunity to restrain their King in this particular for where there is no need of asking there is no occasion of denying by consequence no restraint upon no baffle or affronting offered to the Regal power And yet the Soveraign need not fear if he be tollerably carefull of his own estate that any reasonable demand of his in these mony matters will meet with opposition or denial in his Houses of Parliament For whilest there are so many Acts of Grace and favour to be done in Parliament as what almost in every Parliament but an enlargement of the Kings favours to his people and that none can be done in Parliament but with the Kings fiat and consent there is no question to be made but that the two Houses of Parliament will far sooner choose to supply the King as allwise Parliaments have done than rob the Subject of the benefit of his grace and favours which is the best fruit they reap from Parliaments Finally whereas it is objected but I think it in sport that the old Lord Burleigh used to say that he knew not what a Parliament in England could not do and that King Iames once said in a Parliament that then there were 500 Kings which words were took for a Concession that all were Kings as well as he in a time of Parliament they who have given us these Objections do either mis-understand their Authors or abuse themselves For what the Lord Burleigh said of Parliaments though it be more than the wisest man alive can justifie he spake of Parliaments according as the word is used in its proper sense not for the two Houses or for either of them exclusive of the Kings presence and consent but for the supreme Court for the highest Judicatory consisting of the Kings most excellent Majesty the Lords Spiritual and Temporal and the Representees of the Commons and then it will not serve for the turn intended And what King James said once in jest though I have often heard it used in earnest upon this occasion was spoke only in derision of some daring Spirits who laying by the modesty of their Predecessors would needs be looking into the Prerogative or finding errors and mistakes in the present Government or medling with those Arcana imperii which former Parliaments beheld at distance with the eye of reverence But certainly King James intended nothing lesse than to acknowledg a co-ordinative Soveraignty in the two Houses of Parliament or to make them his Co-partners in the Regal power His carriage and behaviour towards them in the whole course of his Government clearly shews the contrary there never being prince more jealous in the points of Soveraignty nor more uncapable of a Rival in those points than he 14. But yet the main objection which we may call the Objection paramount doth remain unanswered For if the three Estates convened in Parliament or any other popular Magistrate whom Calvin dreams of be ordaned by the Word of God as Guardians of the peoples Liberties and therefore authorised to moderate and restrain the power of Kings as often as they shall invade or infringe those liberties as Calvin plainly saies they were or that they know themselves to be ordained by Gods word to that end and purpose cujus se lege Dei Tutores positos esse norunt as he saies they do then neither any discontinuance or non-usage on their parts nor any prescription to the contrary alledged by Kings and supreme Princes can hinder them from resuming and exercising that Authority which God hath given them whensoever they shall finde a fit time for it But first I would fain learn of Calvin in what part of the Word of God we shall finde any such Authority given to those popular Magistrates by what name soever they are called in their several Countreys as he tels us of Not in the old Testament I am sure though in the institution of the seventy Elders there be some hopes of it For when Moses first ordained those Elders it was not to diminish any part of that power which was vosted in him but to ease himself of some part of the burthen which did lie upon him And this appears plainly by the 18. Chapter of the Book of Exodus For when it was observed by Jethro his Father in Law that he attended the businesses of the people from morning till night he told him plainly ultra vâ—res sâ—as negotium esse that the burthen was too heavy for him vers 18. and therefore that he should choose some Under-officers and place them over Thousands over Hundreds and ever Fifties and over Tens Vers 21. Leviusque sit tibi partito in alios onere that so it might be the easier for him those officers bearing some part of the burthen with him Yet so that these inferior Officers should only judge in matters of inferior nature the greater matters being still reserved to his own Tribunal Which counsel as it was very well approved by Moses so was it given by Jethro and approved by Moses with reference to the