Maxim of Tyranny only to keep the Subject poor To which auri vis Arist l. 5. pol. c. 11. Annal. l. 11. c. 1. opes infensae saith Tacitus Nero never gave to any Favorite any great employment but he added Thou knowst what we want Let us take care Sueton in Neron ne quis quidquam habeat And it is a Proverb relating to the great Turk That where he has once trampl'd there neither grow Leaves nor Grass On the other side we find with what a torrent the Portugals bore down all before e'm to recover their ancient Laws and the Soveraignty of their lawful Princes from the servitude and oppression of the Spaniards insomuch that when the Duke of Braganca had once declar'd his mind the revolt was universal and with such a rapid motion that one single day determin'd the contention with little blood so swift and astonishing was the surprize Nor must we forget how impatiently this Nation bow'd under Usurpation how hainously they bore the exilement of his present Majesty and the loss of their ancient Liberties almost buryed in a most impious Tyranny not ceasing till they had recover'd both their Prince and their Laws to the unspeakable joy of the whole Kingdom In France the King is Absolute and Arbitrary His word is the Law He may thank Lewis the XI for laying the Foundations and Richlieu and Mazarine for perfecting the work However Olden T. 2. as it is brought about the Final cause of the French Government at present is the Grandeur of the Monarch for the support of which the welfare of the People is but trampled under Foot The King squeezes with his Exactions the great Lords and Gentry for their Rents till the Commonalty are reduc'd to utmost penury For which reason France is compar'd to a most flourishing plain that feeds innumerable Flocks of Sheep which are to be fleec'd when the Shepherd pleases He is never safer than when he is in War to keep his haughty Nobility from hatching mischief But his own Subjects being so cow'd and out of heart for Infantry he is forc'd to hire among his Neighbours and Skins the servile Peasant for their pay by that means dilating his Territories to the intolerable detriment of his enslav'd People Only they are happy because they know no better In Swedeland it is quite otherwise Olden T. 2. for there the King is bound to govern by the Laws of the Country which he has no power to alter without the consent of the People So that the Character of the Swedish Government is this That it aims more at the welfare of the Subject than the Interest of the Prince And therefore it is observed that no Commonalty in the World live more happy than they Which renders them stout defenders of their Country and formidable to the most formidable of their Neighbours The Danish Government regards the Common Interest of the People who are govern'd by the ancient Laws of the Country which the King is sworn to observe at his Coronation Therefore the People thrive and live in a plentiful and flourishing condition Whether the English imbib'd their love of Liberty from their ancient Ancestors the Danes is not material here to discuss Yet certainly no Nation under Heaven enjoys those Rights those Priviledges that uncontroul'd Propriety with more ample provision and careful circumspection of Law or a more equal ballance between the Prince and the Subject than the People of England which makes them jealous of their infringement sometimes even to excess For the Laws of England are made with the consent of the People themselves By which means they prevent the imposing any oppressive Burden upon their own Shoulders So that it may well be said that the safety and security of the English People their Lives their Liberties and peculiar Proprieties are as it were entrusted to the Guardianship and deposited in the keeping and defence of Laws and Constitutions of their own framing Not of yesterday but deriv'd from the provisions of distinct Legislators and Princes from the most ancient to these present times carefully deliberated and debated among the most eminent for Wisdom and Counsel in the Nation The want of Laws in the greatest part of those Governments already recited sufficiently declare how little the People have to trust to that are only govern'd by Will and Power On the other side those People who are govern'd by Kings not Tyrants are the most happy and those Kings approach nearest to the King of Kings who govern like Shepherds not like Wolves Which is the reason that David calls God himself the Shepherd of Israel Now then the Common good being the Rule and Quadran of good Government the better the Laws are and the more they tend to the Common good their ultimate end the better must that Government be in regard that where the Law is predominant the Common good can receive no injury and where the Common good is so secur'd there the People are safe in all things that concern their Civil welfare And in this appears the excellency of those Laws that mainly design the common Benefit that they resemble nearest the Laws of God whose Dispensations of Justice were the same to the Peasant as to the Prince And as it was most certainly a greater Prerogative of the Hebrew Kings above all other Kings and Monarchs whatsoever that they govern'd by the Law of God so does it not admit of much dispute whether the Monarchs of England may not claim a Prerogative of the same kind over all other Potentates by governing by a Law the nearest to Divine of any extant more justly far deserving the Title of most Christian Kings than they who glory only in commanding numerous swarms of Slaves But where the National Constitutions of a Kingdom have so interwoven and twisted the Interest of Prince and People that they are inseparable without detriment to both there the Laws are the safety of the Prince and the security of the People and as the ballance kept but duly even render's the Obligation and reciprocal relation between the one and the other indissoluble so it perpetuates their mutual happiness and tranquility Now the People claim their security by the Law from the equal distribution of Justice the preservation of their Freedom and Proprieties and protecting the publick Peace from Tumult and Disorder On the other side the Prince expects all due Obedience from the People in the execution of the Law and an exact condescension to his just Prerogatives without which his Authority lessens and grows into contempt The Laws of England ordain to these ends a limited Authority to the Prince and a consin'd freedom to the Subject thereby providing at one and the same time for the safety of the Prince and the security of the People For it is as equally dangerous and wicked for the People to deny the Prince his just Prerogatives as it is of ill consequence to deny the People their Freedoms
Shepherd to take care of the Flock As for the Persian Monarch it is accorded on all hands that his Dominion is not altogether so uneasie to the Subject however he is an absolute Tyrant the People enjoying nothing of their own but what is absolutely at the disposition of the Sophi And the Constitution of the Government is wholly such as mainly aims at the profit of the Sovereign with little regard to the safety and well-being of the People nor is there any other method or distribution of Publick or Common Justice but what lies solely in the breast of the Emperour His Princes like those of the Grand Turk are his Slaves and he sends for their Heads as he pleases himself upon the least jealousie or distast nor does the Despotic Tyrant think himself oblig'd to give the World satisfaction for what he does So that Sha Shephi is said to have carry'd his Scimitar always ready drawn in his bosom to cut off the Heads of his Nobles upon every slight occasion Yet is he for this never a whit the safer as being harrass'd with frequent Rebellions of his Shans and Emir Hemptza Mirza had the sad fate to have his Throat cut by his Barber by the Command of his great Officers Which is confirm'd by Thuanus in these words speaking of the Persians Crebrae inter eos contra principes suos conjurationes nec in Regia Familia inter fratres aut silios cum patribus Pietatis Officia constant So little does Arbitrary Power avail to the Security of a Prince The Great Mogul is said to be a meer Sponge that sucks away all the Wealth of his chief Governours and Kans after they have squeez'd out the very Heart-blood of the People Who may be only said to Sow the Kans to Reap but the Mogul himself to inn the Harvest And thus he supports his Grandeur by the Misery of his Subjects And yet for all his Guard of 30000 Men watching Day and Night about his Person he is forc'd to part with his Command sometimes to his rebellious Peers sometimes to his undutiful Sons And Aurangzeeb now holds or lately held the Scepter of that vast Empire wrested out of his Father's hands The Ethiopian or Abissinian Potentate commonly tho' erroneously call'd Prester John is so absolute that none of his Subjects whether noble or plebeian can claim any Propriety in what he enjoys Which is the reason that they adore their Prince as their absolute Lord and Master as being perfect Slaves to his Will and Pleasure Yet notwithstanding all their absolute Dominion none less secure in their Thrones than the Habessinian Monarchs As the stories of Maenas slain in battel by his rebellious Subject Bernagassus Jacob Crown'd Depos'd Recall'd and Redepos'd by his own Nobility and the frequent Rebellions against one of the best of their Emperours Susneus sufficiently declare Fatal Documents that the slavery of Subjects is no such protection to regal Power as vainly some imagin Thus it appears upon what Foundations stands the absolute Dominion of the Asiatic and Ethiopian Monarchs Their Subjects are made a Prey as having no refuge to the Sanctuary of known Laws and Soldiers of Fortune are the Pillars upon which they depend For it is necessary that the Power of Princes be sustain'd by the Love of their Subjects or of others for he that is fear'd by all can assure himself of no long continuance But when Tyrants can promise to themselves nothing of security from their Subjects whom they treat as their Slaves there is a necessity for them to guard themselves with Forraign armed Forces and to merit their favour to allow them their full swinge of preying upon and insulting over their Subjects Thus the Turk supports himself by Janizaries who know not only no other Lord but indeed scarce any other Father than himself and therefore he indulges them in all things to preserve their affection And the Kings of Ormus Cambaya Decan and Achen commit the management of their Affairs to their Slaves Whereas a lawful and just Prince takes care to be belov'd by his own Subjects as being the safest Bulwark against his external and domestic Enemies Nor is there any better or securer way to gain the Affections of a People than by protecting them under the rules of their ancient Customs and Constitutions The Europeans are of a more fierce and haughty temper and were always more impatient of servitude Tho' some of them much more than others In which variety we may easily observe those Princes most secure where the Laws and Constitutions of the Realm are most sincerely adapted for the preservation and welfare of the People The Spaniard takes the first care of himself in the next place indulges his Nobility and takes the least care of his People The Nobility and Clergy get all being altogether Tribute free the People lose all being so intolerably burden'd that they are forc'd to forsake the Tillage of their Country Oldenburgh T. 1. p. 166. not being able to support their Families Hence a scarcity of the People and the strength of the Kingdom weakn'd Hence the Castilians out of their natural Pride no great Lovers somtimes contemners of their Prince The Arragonians cannot forget the loss of their ancient priviledges The Catalomians impatient of their Subjection as they have made apparent by their late revolts The Neapolitans Sicilians and Milaneses unfaithful and tottering upon all opportunities as finding themselves reduc'd to misery to enrich their Oppressors And what he has got by the neglect of his People and by Riding with so strict a Curb is sufficiently known to the most meanly read in modern History As for the Portugals the Scope of their ancient Government was the joynt regard equally both of the Prince and Peoples safety Olden T. 1. p. 370. for som time interrupted under the Spanish Usurpation but afterwards restor'd by John of Braganca Therefore such is their Love to their natural Princes such their hatred of the Castilian that Thuanus said of them in quorum animis incertum plus ad insaniam usque improbus in reges suos amor Lib. 126. circa fin cum implacabile Hispani nominis odium valeat Him they Defend him they Adore and Honour because under him they live in plenty and freedom govern'd by just and equal Laws And if their Country be not over-abounding in People it is to be attributed partly to the heat of the Climate but more especially to their draining their own Country to supply their great Navies and more beneficial acquists in other parts of the World And that the safety of Prince and People are equally sought in that Nation appears by the Laws to which King Philip was sworn in the year 1580. Nor is it a mean sign that the Laws are good and wholsome when they agree with the Constitution of the People The health and soundness of a Common-weal appears in the health and vigour of its particular Members It being the
THE PREROGATIVE OF THE MONARCHS OF GREAT BRITTAIN ASSERTED According to the Antient Laws of ENGLAND ALSO A Confutation of that False Maxim that Royal Authority is Originally and Radically in the People By Bartholomew Lane Esq LONDON Printed for William Bateman at the Kings-Head in the Old-Change 1684. TO THE READER THe Laws and Constitutions of Kingdoms and Common-wealths have ever been esteemed by those happy Subjects whose lot it hath been to be governed by them as the most Precious and Sacred Treasure wherewith the Divine Bounty had Inriched them and therefore they would as soon have been prevailed upon to part with their Lives as their Laws and among all those Nations whose Monarchs are truly Royal and whose happy Subjects are Ruled and Governed by the Unerring Precepts of Equity and Law England is yet the most happy and challengeth the Precedency above the rest of her Neighbours for the Constitutions of her Government are the best in the World being no Absolute Arbitrary or Despotick Tyranny wherein the Will and Pleasure of the Prince disposeth of the Lives and Fortunes of his miserable Vassals nor is it an Oligarchy wherein the Nobles and those who bear sway like the larger Fish in the Ocean prey upon and live by devouring the smaller and raise themselves to Wealth and Grandure by the Oppression and Ruine of their Inferiours nor yet is it a Popular Democracy or a Confused Anarchy but the Law maintains the Sovereigns Dignity and yet secures the Subjects Liberty It is by the Law that the King is enabled to govern and dispose of all things with a Royal Sovereignty and free from any kind of Arbitrary Severity thereby oblig'd the People to a willing subjection without force or compulsion and the same Laws by uniting the Interest of the Prince who governs by that of the People who are governed hath so firmly knit and ty'd them together that the happiness of the one is inseparably wrapped up and Involved in the good of the other so that Majesty may be maintained in its just splendour and the Royal Prerogatives of the Crown preserved from any kind of Diminution and yet the Liberty of the Subject be secured and Property no way infringed or violated and thereby approves it self to be the best security of both and that when it is trampled under Foot and violated neither the one nor the other is safe And that which still augments the excellency of our Constitution and renders it the most happy desirable thing under the Sun for the Prince to govern and the People to be governed by Law is its exact agreement with the dictates of Heaven and the resemblance it bears to the Original of all Government For the Supream Monarch and Sovereign of the Universe governs his Subjects by Laws clearly stating and ascertaining the Duties commanded and the Crimes forbidden together with the rewards of the one and the purishments of the other And as those Sacred Precepts whereby the Almighty rules his Subjects are all of them designed for and directly tend to the Honour and Glory of God who is the Lawgiver so they are as properly designed for and have as direct a tendency to the present good and felicity and the fortune happiness and glory of Mankind who is to yield obedience to them and the honour of the Sovereign and the happiness of the Subject are thereby so inseparably united that one and the same Act of Obedience effects both and the same act of Rebellion reflects dishonour upon the Sovereign and merits punishment to the disobedient Subject so our Wise Legislators in the composeing of our Laws have so contrived them that by the very same act of Subjection whereby we manifest our obedience to them we bring happiness and safety to our selves as well as yield honour and homage to our Prince as is more fully proved in the following Tract wherein you 'l find a brief account of the Laws and Customs of most Nations and a Convincing Demonstration from the most Authentick Historians that those Countries have ever been the most happy and flourishing whose Prince have ruled and whose Subjects have obeyed by Law J. N. IT has been always the Great Happiness of this Nation even as far as we can pierce into the dark and obscure Coverts of Antiquity to have been famous for the Equity and Justice of her Princes and that from such most wise and prudent Legislators she has receiv'd the chiefest of her wholsome Laws according to the Temper and Genius of the People So that although perhaps some few in the long successive Series of her Monarchs may have aspir'd to absolute and uncontroulable Dominion yet the Opposition which they met with from the provident Establishments of their Predecessours would in no wise suffer them to be successful in their Attempts and others tho' perhaps meaning no better than the worst have thought it no imprudence not only to confirm those ancient and wholsom Laws of their Ancestors but to make some new additions of their own to rivet themselves into the favour of the People as being otherwise obnoxious to those Violences incident to Usurpation and a crazy Title Which as it was their Wisdom to do so was it an Excellency in their Government far longer liv'd and much more beneficial to the Publick than the Peccadillio's of their Ambition could be prejudicial to private Interests For all good Laws are the Honour and Renown of them that frame them whether out of real or out of seeming Virtue and Affection to the People Yet some there are perhaps that may despise the Generous Constitutions of their Native Country believing nothing super-excellent but what is Foreign But they are not to imagin there is the same judgment to be made of Governments as of Dyet and Habits besides that it is the Fate of English Travellers to be very unhappy in their Observations of things of Moment Neither is the Insight into Government to be travell'd for only into France or Italy or Spain nor to Jerusalem neither unless it were the ancient Sion but into History and approved Authors where is to be seen the Reasons of the Periods and Dissolutions of Boundless Empires and the Causes of the Revolutions and overturnings of Potent Common-wealths That Law and Government are of Celestial Extraction is a Dispute which will admit of no Controversie For no sooner Man committed a Transgression but Nature which is that Reason which Man at first deriv'd from the benignity of his Maker soon inform'd him he had done amiss And no sooner was Mankind multiply'd into Numbers with disparity of Parts and Genius Temper and Humours but the same Nature taught them the necessity of Rule and the Benefit of Subjection I say these things were instill'd into the Breasts of Men by Nature and not by the growing Experiences which one day prompted by another perceiv'd and concluded to be the only Remedies of the Evils they sustain'd Those Conjectures therefore of Tacitus and Livy
warranted by the National and Fundamental Laws of the Land We are then to believe that the Princes just Prerogatives and the Peoples safety are the common Good of this Nation and that their Lives and Fortunes equally depend upon those Provisions which the Law has so equally made for the security of the whole Body of the Commonweal of which the Soveraign Prince is the Head It is one of the Excellencies then of the English Laws that they provide for the Common good which is the end of all true Law For this is the general Axiom That the Reason and Substance of Law demands that every part should be fram'd for the Common Benefit Greg. Lop. in l. 9 â—â—t 1. part 1. which was the Condition that Alphonsus King of Spain requir'd also in his Laws And thus it is understood by the Interpreters of the Civil Law who affirm that the Law is a common Precept respecting the Benefit of all Aristotle observes that the chief end of a Commonweal is to live well and happily And therefore adds Ethied 4. c. 1. That the Laws are to be accommodated to the Commonweal not the Common-weal to the Laws In my opinion saith Plato the Law is made for Benefits sake In Dialog Hippias as intended by the Legislator to be the supream happiness of a Commonweal for the Law being taken away there is no well being in a City And in another place he shews at large that the end of Law is the common safety and felicity And Plutarch tells us In Problem tit 40. That Laws are then accompted good and wholsome when they procure the public Benefit Which is evident from the most sacred Laws of the Almighty For though they be ordain'd to the honour of God for that God cannot will any thing without himself nor operate but for himself yet in those Laws the great Monarch of Monarchs seeks not his own Benefit but the good and felicity of Mankind Suarez l. 1. c. 7. Which then also the Laws of Man most nearly imitate when they drive nearest to the same Perfection Therefore as Laws are impos'd upon a Community so are they to be fram'd for the good of that Community otherwise they are irregular For it is against all rectitude and justice to direct the Common good to private Interest or to make the whole relate to the part for the parts sake And therefore when the Law is fram'd for a public Society the good of that Society ought primarily and principally to be procur'd The same thing is apparent from the Order of small Causes For the end ought to be proportionate to the act its beginning and its virtual efficacy Now the Law is the common rule of moral actions and therefore the first principle of moral actions ought to be the first beginning of the Law For in Morals the End is the beginning of Operation and so the ultimate end is the first beginning of such Operations But common good and felicity is the ultimate end of a Commonweal therefore that also ought to be the beginning of the Law and therefore the Law ought to aim at the Common good This is illustrated by St. Austin who collecting a Consequence from the Relation of the part to the whole argues that a Master of a Family ought to take his pattern from the public Laws and so to govern his House as to be conformable and agreeable to the public Peace Therefore ought the public Laws to give a good Example of public Benefit and common Safety that Domestic Government may not be ruin'd by a bad President Suarez brings another reason from the Original of Law For that the ruling power which is in Men is either immediately from God as in spiritual Power or from men as in Power purely temporal But both ways Suarez l. 1. c. 7. such Authority is given for the public advantage of all in general For therefore are the Rulers of the Church call'd Pastors because it behoves them to lay down their Lives for their Sheep and Dispencers not Lords and Ministers not Primary causes and therefore they are oblig'd to be conformable to the Divine Intention in the use of such Authority Therefore also are the supream Magistrates call'd the Ministers of the Public as not being created for their own benefit but for the advantage of them from whom they derive their Power They are also call'd the Ministers of God and therefore ought to use the Power entrusted in their hands in imitation of the King of Kings who in his Government solely respects the common good of Mankind For which reason St. Basil makes this distinction between a Tyrant and a King that the one seeks his own proper advantages the other labours chiefly for the common good and benefit of all his Subjects not excluding himself as being the supream Member and consequently the first that ought to share in the publick and general Emolument The reason why so few People attain this summum bonum of Government appears by the ways of practizing Dominion already recited the want of a due poyse between Rule and Subjection For in the Arbitrary Eastern Monarchies the People are altogether Slaves and may be only said to live not to live with any comfort or enjoyment of themselves In the Elective Kingdom of Poland the Nobility carry such an unbridl'd sway that the King is but a Cypher a King and no King which subjects the Royal Soveraignty to such an insufferable Bondage that the Title is hardly worth the acceptance of an English Knight A King in subjection to many Kings And all this while the People live miserably under the Slavery of a many-headed Tyranny The Emperor is so overmaster'd by his Golden Bull and so hamper'd with Electors and Dyets that in the most emergent affairs the slowness of deliberation many times renders him useless to his Friends and his Authority cumbersome to himself So that he never moves but like a Clock when his weights are hung on Such clogs upon Soveraignty are frequently the ruine of great Atchievments Neither do the Laws of God any where enjoyn the Kings of Judah when they should make either War or Peace The Ephori were added as a check to the Lacedemonian Kings Which tho' it grieved the Wife of Theopompus who upbraided her Husband for suffering such an Eclipse of his Authority yet was not Theopompus of her mind who return'd her answer So much the greater by how much the more lasting And this Remedy saith Plutarch was invented by the Lacedaemonians to prevent the evil accidents and ruine that befell the Kings of the Messenians and Argines who lost all for obstinately refusing to condescend a little to the Grievances of the People Plut. in vit Lyc. The Romans were terribly pester'd about keeping the ballance even between the People and the supream Magistrate For after they had ingratefully thrown out the Regal Government which had laid the Foundations of all their Grandeur they
bin so chary of them to collect and reduce them into one Body and leave them as a sacred Relieque to the prejudice of his Successors And from thence our Fundamental Laws derive their illustrious Descent and may therefore justly claim the Title of High-born contriv'd by Soveraign Princes as well for their own safety as the Peoples security Which being at length made publick with the unanimous consent and approbation of the Peoples Suffragans there was nothing binding to the Prince but what Princes had already condescended to and nothing impos'd upon the People but what themselves thought necessary and convenient To come to particulars first in reference to the safety of the Prince those good and famous Monarchs of our own gave ample testimonies that they were not ignorant what procures the Honour and Esteem what the ill will of the Subject And therefore in the first place none were more devout according to the knowledge of those times none greater observers and setlers of Religion and none more bountiful enlargers of the Churches Priviledges And in regard the next Applause belongs to them who best provide for the Civil Government therefore they took care to make good Laws that by them they might govern well For as they have justly merited immortal Honours who have bin the Establishers of Religion and good Government so none have clouded their Memories with greater infamy then the Contemners of Religion the Subverters of establish'd Government and Oppressors of the People For it is but the Counterfeit Glitter and Delusion of false Honour that captivates the Ambitious and enslaves them to the desire of enslaving others and mounts their unruly passions rather to an affectation of upbraided Tyranny then renowned and God-like Kingship And yet there is that shame of ignominy and that eager thirst after what is most praise-worthy among Men that the worst of Tyrants would sooner be accompted Agesilaus's Timoleon's and Dio's then Nabis's Phalaris's and Dionysius's Nor shall we find that Timoleon and the rest had less Authority in their several Dominions then Phalaris or Dionysius but this is certain they liv'd in much more safety and security If we consider the difference between those Roman Emperors and virtuous Princes that rul'd according to Law and those that took a contrary course Story is full of the never dying Encomiums of Nerva Trajan Adrian Antoninus Pius and Marcus Antoninus who needed not the Guard of Praetorian Bands nor the Defence of armed Legions to secure them as being sufficiently defended by their own Justice and Moderation the Affection of the People and Love of the Senate whereas all the Power of the Roman Empire could not save Caligula Nero Vitellius and those others like themselves from those mortal Enemies which their own depraved Lusts and Tyranny rais'd to their destruction the most abandon'd of Men at their Falls Which was the reason that of twenty six Emperors from Caesar to Maximus sixteen came to untimely and unfortunate Ends. Land-marks sufficiently visible whereby to discover the happy Road of Honour and Security from the Sands and Shelves of Reproach and timorous Anxiety It is a pleasure to dwell in History under the Raigns of those virtuous Emperors which give us a full view of Princes safe and secure in the midst of their secure and faithful Subjects the World flourish'd in Peace and Justice the Senate enjoy'd their Authority the Magistrates their due Honours the People grew Rich and Wealthy Virtue and Nobility was exalted and fear only possess'd the Gates of the Enemy Reverence Obedience and the Peoples Hearts were the Princes satisfaction Freedom and Security the People's On the other side under the Lawless Raign of Will and Tyranny behold the World all in dismal Combustion there War and Bloodshed here Tumult and Sedition Cities dis-peopled Rapes and Adulteries Triumphant Guards doubl'd the Prince in perpetual Fears and Jealousies in continual disquiet and distrust the People mad and raging and unruly as the inundations of the unfetter'd Ocean and in a word nothing but disorder and confusion till the gaping Jaws of Ruine swallow All. And therefore it is recorded of Numa Plut. in vit Num. so highly eminent for his Justice and Affection to his People that during all his Raign there was neither War nor Sedition nor so much as the least commotion that tended to a Tumult Which was the reason of Plato's assertion That it was impossible to move the Throne of that Prince in whom a Philosophers mind and Regal Supremacy met together On the contrary it is said of Tiberius Non Fortuna Tacit. Annal l. 6. c. 6. non Solitudines prolegebant quin Tormenta pectoris suasque ipse paenas fateretur Therefore saith Cicero Fear is an ill preserver of Diuturnity but love and respect is faithful and to Perpetuity And from hence it was that when the Poets represented in the person of Jove a wise and virtuous Prince they brought him in attended by Obedience and Equity but when they make him a Tyrant they associate with him Injury and Fear And Juvenal setting forth the unsafe Condition of Arbitrary Pomp and the perillous Estate of Tyranny goes a great way in two lines Ad generum Cereris Sat. 10.112 sine caede vulnere pauâ—â— Descendunt Reges sicca morte Tyrannâ—â— Reges being there taken abusive in the same sense with Tyranni But the words and sentence of a King are of greater force Therefore let us hear the determination of Ferdinand of Arragon â—â—uan l. â— 4. who marry'd Isabella of Castilâ— It was a part of the Arragonian Constitutions at that time that if the King went about to violate the fundamental Laws of the Kingdom it might be lawful for the Nobility to create another in his room This seem'd very severe to the Castilians and therefore they advis'd Ferdinand to abolish that Law as prejudicial to Royal Dignity But Ferdinand reply'd That he was bound by the sacred Oath which he had taken from doing any such thing Besides that he was of Opinion that the safety of a King and Kingdom was secur'd by the equal poise of Power and that if at any time it happen'd that the Power of the one out-hallanc'd the other that without doubt the ruine of the one or the other would ensue And it is recorded of Augustus Caesar That when he listen'd to the Advice of his Wife Julia and govern'd by the Law Dio in vit August that he was from thenceforth free from Conspiracies and that the People and Senate were always after that faithful and obedient to him Which was also Escovedo's Counsel to John of Austria Governour of the Spanish Netherlands telling him withal that he could never be safe among those who were not safe from his own Ministers for that Security was to be obtain'd by mutual Security Sâ—ada l. 9. circa princip And indeed the Kingly Office made and ordain'd for the defence of the Law of the Subjects Fortes
Cur. de Laud. leg Angl. c. â—â— their Bodies and Goods to which end a Prince receives Power of his People so that he cannot govern his People by any other Law is of that vast and high importance to the preservation of Mankind especially consider'd according to those Appellations which are given to virtuous Princes for the reasons aforesaid that nothing in the World ought more to oblige the Subject to the perfect awe and reverence of it as well for their own as the Princes sake Which awe and reverence while it continues towards the Dignity it is impossible but that the Person must be secure and safe in all respects For while Princes govern by the Fundamental Laws of Justice and Equity they are not only impal'd with the defence of a Loyal People but under the promis'd Protection of God himself Their Justice and Moderation demands both Honour and Veneration their Vigilancy Obedience and Loyalty In this respect all Virtuous Princes that seek the prosperity and felicity of the People under their charges are call'd by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Shepherds of the People And certainly it would be the highest Iniquity imaginable for the Sheep to rebel or murmur against a Shepherd that sought nothing more then the common welfare of them all and never shear'd them but when the Tribute of their Fleeces was justly due For which reason Pindarus calls the Royal Dignity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Honour given to Princes for nourishing and cherishing the People He also calls Apollo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Olymph Ode 6. and Acastus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Inspectors Overseers or Guardians of Delos Nemeor Ode 5. and the Magnetes denoting the cares and continual watchings that attend upon true Kingly Government which is also the Character given of it by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And for these reasons is Royal Soveraignty the highest Dignity among mortal men For the Title of Emperour is only a nominal no real difference Wherefore Pindarus speaking of Jamus the Ancestor of Agesias that he was as great as Man could be Some saith he are more eminent then others but he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 had attain'd to the utmost extent of Honour as being in the number of Kings It was the publick Benefit which Men receiv'd by the Glorious Actions of the Ancient Hero's that made them ascribe Divine Honours to their deceased persons And the same Virtues in all just and virtuous Princes produce the same Effects of Veneration and Reverence Obedience and Loyalty in all good Subjects A King thus arm'd with his own Virtues and for their sakes with the Hearts and Affections of his People may justly warrant that Axiom of the King of the Argines in Aeschylus In Trag. Hâ—ertides 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Awe and Terrour of Princes is hardly to be imagin'd And yet he was none of those that lawlesly controul'd for presently after saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I will perswade the Common Good From all that has bin said it plainly appears wherein the true and diuturnal security and repose of a Soveraign Prince mainly and principally consist In which particular the Laws of England cannot be said to have bin any way defective as having extended their power all along to their own satisfaction rather have they bin so tender of it that they would not suffer the Pope to make his Ecclesiastical â—â—â—â—oachments upon it even in the most flourishing Estate of Papal Usurpotical Which was never admitted in England but only when the Desertion of his Barons expos'd King John to the Exorbitancy of Papal Triumph To deseend to the cause and primum mobile of the Subjects security none can be found more apparent then good Laws including Justice and Freedom And he that is the Soveraign of a People so govern'd may be rightly said to be as Agamemmon is frequently stil'd by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King of Men. Which cannot be thought to be where Arbitrary Will only controuls a multitude of Slaves Therefore says the famous Pindar 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The foundation of Cities is firm Justice and Peace accomplish'd with her Virtues the Dispencers of Riches to Men the Golden Daughters of considerate Thenis Olymp. Ode 13. And praising the City of Opus the Metropolis of the Locrians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which Themis and her Sisters good Government the preserver of Common Weals took into their protection And in another place extolling the City of Aetna for its freedom which is the other main happiness of a Kingdom 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To whom meaning his Son Hiero gave that City which he had built and endow'd with Divine Liberty according to the Standard of the Laconic Laws Taking an occasion to commend the Constitutions the Aetnean Commonweal from the Excellency of its Government founded in Justice and Liberty after the example of Lacedaemon then accompted the most exact Form of Dominion in the World and therefore by the Poet stil'd the Standard of all other Governments Certainly the Government of England cannot be thought to stand upon a slight Foundation that has stood so long upon the single Basis of her own Laws And it is observable that then England first began to flourish when the Laws being reduc'd into one Body were under the execution and care of one Universal Monarch Nor could the Breach of Norman Conquest hinder the Chasin of long enjoy'd Liberty from uniting again and closing it self more firmly with the Cement of its former Constitutions calculated by so many Kings of this Island for the Meridian of English Freedom To come to particulars the Statutes are made not only by the Princes pleasure but also by the Assent of the whole Realm so that of necessity they must procure the Wealth of the People and in no wise tend to their hindrance and it cannot be thought but that they are replenish'd with much prudence and wisdom seeing that they are ordain'd not by the Providence and Deliberation of one Man alone but of more then five hundred chosen persons And here now in the distribution of Justice between Man and Man the Excellency of the English above the Civil Laws is manifest from hence that the Issue of the Plea is not try'd by the Deposition of two Witnesses only according to the proceedings of the Civil Law but the Truth of the matter must appear evident to the Judge by the Oaths of Twelve men Neighbours to the place For that Man may well be thought to be the Master of little Cunning or Industry that cannot find two persons who either for fear for love or profit will not be ready to contradict the Truth Nor is it so easie a thing to disprove the affirmative or to expose the wicked Lives and Conversations of persons altogether unknown The second Excellency of the English Laws derives it self from the Equitable proceeding or at least intention of the Law in the Election and Swearing of Jurors Who
when the parties are come to the Issue of the Plea upon matter of Fact are by Writ directed to the Sheriff of the County by him to be chosen good and lawful Men Neighbours to the place where the Fact is suppos'd to be done Upon their attendance either party may refuse them upon the reasonable Allegations of Favour or Affection in the Return Which Exceptions proving true the Pannel shall be quash'd and another Writ directed to the Coroner for the Return of a new Pannel And if that be found faulty the Judges shall appoint two Clerks of the same Court who upon their Oaths are bound to make up an indifferent Pannel which shall be challeng'd by neither party yet notwithstanding all this either of the parties has the liberty to make his particular Exceptions against the person of any if they can tax him either of Alliance Friendship or any other warrantable suspition of prejudice upon which the name of the person shall be cancell'd in the Pannel Moreover they must have Lands or Revenues for term of Life at the least to the yearly value of Forty shillings lest for need or poverty such Jurors might be corrupt and suborn'd Being thus admitted and sworn to Impartiality their determination of the matter is call'd a Verdict or Verum dictum a true Report Here it is evident that the final Cause of this Constitution is the determination of Controversie as much as can be devis'd to the satisfaction as well of the loser as of the gainer For in regard every man is apt to believe his own cause to be the justest he can have no reason to be discontented when he finds himself convinc'd by a fair Tryal and the true report of so many good and substantial Men of whose Probitie he has as it were the winnowing and sifting before he is bound to submit to their Arbitrement The same method or very little different is observ'd in Criminal Proceedings So that no Man can be condemn'd either in Life Forfeiture or any other poenal Punishment unless so many men whose integrity and probity cannot be impeach'd be upon their Oaths and upon mature deliberation fully evinc'd of the Merits of his Crime By this means the Lives and Estates of the People of this Nation are in a great measure secur'd For that no man can be depriv'd of his Possessions if his Tenure be just Nor is his Life or Liberty liable to the blasts of Arbitrary breath So that the Courts of Justice are as it were publick Registers ready to give an Accompt of all the particular Actions and demeanour of the Law Insomuch that the Law it self may in a manner be said to be upon its Good Behaviour And therefore it behoves every Jury-man and every Evidence to be in the highest degree careful how they mislead the intent of the Law since he may have need at one time or other of the same Justice himself And he is to consider that his own Verdict is the fence and pale of all his fellow Subjects Right and Liberty And that he is guilty of all the mischief which shall ensue who opens the least Gap for Injury and Injustice to break in upon Right and Freedom and that thereby he violates the intent of the Law which is the common good as well of himself as of all the rest For Injury and Injustice are of the Nature with Quick-silver which upon a smooth and polish'd Table cannot take the least advantage but where it finds the most diminutive chink there it harbours and corrodes Hence we may conclude that there are not two things more pernicious to the Probity of English Verdicts then Ignorance and Faction For the end of Juries being to distribute equal Justice for the publick security Ignorance not knowing when she does well or ill must of necessity be guilty of many gross and foul transgressions while not understanding their value she sports away the Jewels of other Men as Children play away their Parents Jacobus's Therefore the Law has with solemn prudence provided that none should be the Judges of Estate and Liberty but such as enjoy both And therefore if others are put upon that employment whose familiarity with Beggery values not Estate or whose abject Spirit matters not Liberty 't is the miscarriage of Execution not of the Law it self Which many times may prove dreadful in the conclusion even to Posterity Nor is Faction less dangerous which seldom makes a true construction of the Law but carries along with it prejudice and an opiniater'd Zeal for byass'd Interest to the Bar. Thus a Ghibelline is a forejudg'd Offender right or wrong in the breast of a Guelph And a Guelph is fore-condemn'd without any farther consideration by the Verdict of a Ghibelline So that where persons are brought to Trials where they who try believe themselves cock-sure of a Jury for their Turn those cannot properly be said to be Trials but only the Formalities of Trials And Jurors that go with a premeditated good-will or aversion to such a Trial may not be said to give a Verdict but to follow the dictates of Passion and Affection more frequently in the wrong then in the right as being carry'd like floating and unfix'd pieces of Timber which way soever the Stream runs And therefore what is done by Faction cannot be said to be a Law For it brings the World into confusion while one thing shall be accompted lawful to day and another thing lawful to morrow But the Law of England is certain and unalterable It had its Birth from King and People and was solely intended for the common good and preservation of Both. So that there needs no picking and culling of Jurors by Interest and Faction but the return of Men of Understanding Integrity and Probity and then they who fall by their Judgments may be rightly said to fall deservedly The Law most certainly aim'd at the right mark and there is undoubtedly that security of our Lives and Liberties from it that without it there cannot well be any And therefore if there be any such who strain it from its natural and genuine Intention They are in the fault and not the Law and Heaven will require the oppression and blood of the Innocent at their hands For the Law it self is absolutely grounded upon the firm Basis of Reason Nature and Justice the Common good of Prince and People And most assuredly Fortescue when he was so deeply engag'd with Prince Edward in the praise of the Laws of England might have pitch'd upon far more noble Themes setting this of Juries aside then to set them at variance with the Civil Laws only about Bastardy and Wardships But he aim'd at Brevity and therefore passes over Magna Charta in silence wherein as in a Mirror all the World may take a lovely Prospect of the advantages which this Kingdom of England has above all other Nations under the Sun Yet can it not be said to be the Original of the Laws of this
while Men in Holy Orders deviate and maintain the forbidden Interest of Worldly Glory while they seek to support the name and shew of Religion they Adulterate Justice and many times become the main disturbers of the publick Peace Whence Matchiavel makes this observation Matchiavel disâ—câ—â—si l. 1. c. 12. That those People who inhabit nearest to the Church of Rome have the least Religion and ascribes the Bad Estate of Italy to the Roman See And for this he gives two invincible as he calls them Reasons First for that by the evil and wicked Examples of that Court the whole Nation have lost all their Piety and Devotion The next Reason proceeds from the different Interest of Christian Humility and Antichristian Vain-glory. For the Roman Court to maintain the Pomp and Splendour of a Temporal Hierarchy is forc'd to keep not only Italy but all Europe in Division and sometimes to League even with the Turk for its own preservation by which means unhappy Italy being prevented from uniting under their own supream Prince and one frame of Law is expos'd to all the Pretences of her more powerful Neighbours and her pettie Princes are but the precarious Tenants at Will to more mighty Potentates Nor does the Exaltation of the Church encourage the Priesthood to move irregularly out of their Sphere or to lead an Amphibious Life sometimes in the running Streams of the Gospel sometimes upon the Terra Firma of Temporal Government Nor is it in Scripture a warrantable method of seeking Church preferment to oblige the secular Interest by strain'd and wrested Interpretations of the Immaculate Scripture Like Shaw Preaching up the Title of Richard the Third and Latimer the right of Jane Seymour For if the Kingdom of their Lord and Master be not of this World no more does temporal preferment belong to the Ministers of his Doctrine But the true Exaltation of the Church is to protect it's Ministers in the Preaching of sound Scripture to the Conversion of Souls to the building up the new Jerusalem and advancing the future Kingdom of Christ by their endeavouring to increase the number of his Celestial Subjects The Exaltation of the Church protects her neat and pure and exactly cleans'd and swept from all the Cobwebbs of Babylonish Superstition For then will Rome despair of ever setting Foot in England more when with grief she beholds all her Follies and inveigling Allurements Root and Branch extirpated To which end the same resolution might well become the Clergy of England in reference to the Relicks of Popish Ceremonies which was applauded in King Stephen in relation to the Roman Laws who hearing that they were brought into England and lodg'd in the custody of Theobald Archbishop of Canterbury commanded them out of his House publish'd an Edict against the Laws of Italy and banish'd them out of his Realm Not enduring tho' a Forraigner himself any other then the Honesty of the English Constitutions An Act of his not recorded by any of our Historians but by the Learned Selden in his Notes upon Fortescue cited from Roger Bacon's Compendium Theologiae and John of Salisbury in his Treatise de nugis Curiaticum On the other side the Wolf in Sheeps cloathing outwardly Meek and insinuating Heresie and Schisme are equally dangerous and contagious For Heresie the Illegitimate Brat of Contumacy while it labours to shake off from the minds of Men the easie Yoke of Christ at the same time teaches Men to violate their Allegiance to their lawful Princes and they that strive to bring in the Innovations of obstinate Opinion if they get the upper hand seldom change the Religion alone Therefore the Exaltation of the Church defends and guards those Men that give themselves to compose the breaches of Ecclesiastical Differences and labour to beget a harmony and unity of Faith and Devotion which then Religion most truly useful and the most unblemish'd Aid of Civil Justice The second final Cause of this Great Charter was the Amendment of the Kingdom The miscarriages of those times are by our Historians said to be the Cancelling of the Great Charter by the advice of Hubert de Burgh Chief Justiciary of England as first confirm'd by the King during his Nonage The displacing the English Nobility and admitting Poictovins and Forraigners into the Chief employments of the Kingdom and the Impoverishment of the Nation by vast and continual Taxations By the means of which undue proceedings the ancient Laws of the Realm were render'd useless and the Liberty of the People lay at the Mercy of Evil Ministers The amendment of which Grievances as being an Act due to the Honour of God the Salvation of the Kings Soul and the Exaltation of the Church is now intended by the Confirmation of this Great Charter From whence it is inductively demonstrable that if the Establishment of good Laws be the way to procure such inestimable Happiness to a Prince the continuance of bad Customs and Oppression inclines to all the contrary consequences that is to be dishonourable to God hazardous to Salvation and injurious to the Church Which considerations of Eternal Detriment or Felicity when they come to be the inducements to Reformation must certainly be a great advantage to such Reformation that it may prove effectual to all its purposes And then such Act of Reformation is of that high Merit that it produces a benefit of the good exceeding the mischief of the Evil the reason perhaps why Machiavel ascribes a more Exalted renown to those Princes who reform the corruptions of a disorder'd State then to those who only continue the Good Government which they found E veramente saith he un Prencipe cercando la gloria del mondo doverebbe desiderare di possedere una Citta corrotta non par guastarlo come Caesare ma per riordinarla come Romulo A Prince Ambitious of the Honour of this World would desire to come to a Kingdom under the corruption of ill Customs not to ruine it like Caesar but reform it like Romulus For as it is impossible but that Ambition desire of absolute Dominion and many other oversights of Government will many times disturb the Courts of Justice and let in confusion at the Breaches of the Law so is that Prince the more highly to be honour'd who reforms those abuses and restores exiled Justice by how much such Reformation must needs be the more welcome and acceptable even as health is more valued by such as know the Inconveniencies of Sickness then by those who never understood the want of Cure and by how much the Joy is greater for the recovery of the lost Sheep then for those that never went astray Now this Amendment of the Kingdom imply'd the defect of Government and such a defect which endanger'd the Estates Lives and Liberties of the Subject which since they could be no way secur'd but by the Recovery of the Ancient Laws of the Kingdom it follows that seeing the Rights and Liberties of the English People are
still the same they can be guarded by no better security then what has hitherto preserv'd them as upon which the Salvation of the Princes Soul and the Exaltation of the Church depend and all redounding to the Honour of God Neither could Time it self dissolve this Charter as being granted to all the Freemen of the Kingdom to be held and enjoy'd in the Kingdom for ever But what those Liberties were and what the Amendments were is better seen by the Charter it self in regard that what was good by Amendment was on the contrary evil and unjust in practice No Man may be taken or imprison'd or disseis'd of his Free Tenement his Liberties or Free Customs or be Outlaw'd or Exil'd or any way destroy'd nor will we enter upon his Possession Nec super eum ibimus nec super eum mittemus nor Commit him so Selden renders the last words but by the Loyal Judgment of his Peers or Men of his Condition or by the Law of the Land By this Paragraph of the Charter it is plainly to be made out that the Estates and Liberties of the English Subjects are desended and guarded as well by the Law of Nature as by the Law of the Land as having embody'd those Principles of Morality which most conduce to Publick Honesty which is the Common Security All which are muster'd up under that General Head of Alterine feceris quod tibi fieri non vis Which being the Law of Nature is also the Will of God who is the Author of Nature So that as God can command nothing but what is purely honest and just no more can the Law of Nature Now that the Materia prima of this Law is the same with that of the Law of Nature is apparent from hence that it enjoyns necessary Honesty and forbids the Evil contrary to it To clear the point a little farther This Paragraph contains nine Branches relating to the Liberty of Person the security of Property and Possession and the general execution of Justice 1. No Freeman may be taken or imprison'd That is as the Lord Chief Justice Cooke expounds it No Man shall be restrain'd of his Liberty by Petition or Suggestion to the King or his Council but by Indictment or Presentment of good and lawful Men where such deeds be done For Liberty is the power of living at pleasure And no Man lives as he pleases who is not permitted to enjoy that repose and tranquility both of Mind and Body which he proposes to himself Which Liberty was given him by Nature and in some measure granted even to the wild Beasts themselves And therefore to deprive him of the Power of himself is to deprive him of the gift of Nature to which there is nothing that he can have more Right until he forfeit it back to the Law by transgressing it And that it is the gift of Nature is evident from that Love of Liberty which Nature has infus'd even into all the particular Members of the Creation The Elements themselves disdain the Curb of Servitude Imprison'd Fire when it gets loose revenges it self with greater fury The fetter'd Ocean foames and roares at his Confinement The Winds against their will detain'd in the Earth's bowels put the Earth into most violent Convulsions We see how impatiently young Horses brook their Imperious Curbs and how the little Birds at first bewail the Captivity of the Cage Liberty is one of the chiefest Felicities Man has to boast of that he is by Nature Lord of himself and has only Reason to be his Governour Nor does the Law require slavish Subjection from him but natural and necessary Obedience which is therefore so far from being oppressive that it becomes delightful to him because he finds thereby his Liberty preserv'd For these reasons every Man that enjoys his Liberty is said to be the treasurer of a most inestimable Jewel the Priviledge of Nature and his Birthright which they who ravish from him by violence and against the Law of Nature despoil him of the Benefit of Heaven and reduce him to the slavish condition of Beasts as if he were only made for the use of Tyrannizing Power Therefore says this Law let No man be restrain'd of his Liberty or imprison'd but by the Law I omit the fatal Consequences of endangering the Liberty of a People enur'd to Priviledge and Freedom the love of which to them is so excessive that accounting nothing dearer to them in this World they prostrate Life Estate and all at the feet of its Preservation On the other side Popular Licence is with all the severity imaginable to be restrain'd for that unhinges publick Safety and makes an Inundation upon the true Justice of Government Then which nothing can be more pernicious to the Publick Security and the Common Good of Prince and People 2. Let no man be disseis'd or dispossess'd of his Freehold that is of his Lands Livelyhood Liberties or free Customs as belong to him by his free Birth-right And this also depends upon the Law of Nature For no sooner was the World Created but immediately appear'd Propriety Abel was a Keeper of Sheep and Cain a Tiller of the DGround And therefore was Man endu'd by Nature with Industry to advance his Estate to the end he might not only live but live comfortably upon what by his Labour he enjoy'd Which being obtain'd by his own industry and pains Nature instill'd that Moral Principle among Men that it was but just that every man should quietly and peaceably enjoy what he had got by his Labour and the sweat of his Brows And this is evident from the Law of Inheritance the Institution of God himself For if by the Law of Nature he had not power to possess and keep he could not have power to dispose But the undeniable Power of disposition confirms the right of Property and Possession So that for a Man to be despoyl'd of the fruits of his Labour or of the Inheritance of his Ancestors is against the Law of God and Nature Thou shalt eat of the Labour of thy hand happy shalt thou be and it shall be well with thee and He that gathereth by Labour shall encrease This was the Establishment of Property by two of the best of Kings by the dictate of God himself And therefore for Tyranny to waste the Labours of the Subject profusely upon illegal Innovasions and unnecessary Pomp and Riot is a piece of Injustice of the highest Nature And therefore this Law grounded upon the Law of God and Nature takes especial care to secure the Property of the Subject from Exorbitancy and Oppression Not that hereby the Laws of legal Tributes are any way contradicted For they are impos'd upon the People and given to the Prince as a publick Person for the Common Good of which the support of his Dignity is a part And generally in England they are given with the Subjects consent And this is also warranted by Scripture For this reason you pay
Tribute also for they are Gods Ministers Nor can the People expect to be safe in what they possess unless the Prince be sufficiently supply'd for their defence And yet the Law has so provided too that they cannot be put upon the expence of chargeable and unnecessary Wars for tho it be in the power of the Prince to make and proclaim the War yet the Sinews of it are in the Peoples keeping However for the People to deny their Prince his just and legal Tributes is altogether as unnatural as it may be thought unkind in him to deprive them of their Goods and Fortunes without a lawful cause against their good-liking The third and fourth Branches are made to interpose in bar of unjust Exilements and Outlaries Of which the one is the Occasion that a Man is said Perdere Patriam to lose his Country and the other to be depriv'd of the benefit of his Native Laws Two heavy Burthens and two unmerciful Injuries for a Free-born Man to take at the hands of Violence without a Legal Provocation They are a sort of Civil Excommunications which cut a Man off from the society and commerce with his dearest Friends and Country-men and the benefit of the Law and leave him as it were forsaken both of God and Man Banishment was look't upon in former times as an affliction so heavy and so insupportable that it was thought a Punishment sufficient for Treason in the Raign of Henry the First Even in the time of Richard the Second the offences of great Personages were punish'd by Banishment In short they are both when undeserved Breaches of Mans Liberty and consequently contrary to the Law of Nature which gives to every Man the right of a Civis Natu in the Country where he was born For it is not to be question'd but the Land which the Lord thy God has given thee was spoke to every individual Native of the Country and not to particular persons And therefore it is not a thing of that slight Importance to hurry the Free-born Citizens of a Commonweal out of the Land of their Nativity or to put them upon the necessities of voluntary Exile upon the Score of Conscience and Ecclesiastical Interest For all true Ecclesiastical Interest is the Interest of Christ and as such the Interest of Christian Religion as to this World is grounded upon the Law of Nature one of whose chief Maximes therefore is Do as you would be done by For which reason that Law which forces the free-born Subject of a Nation into Exile and all Men are constrain'd that go to avoid some inconvenience or violence prejudicial to their present Peace is contrary not only to this Statute which says that no Man shall be exil'd but by the Legal judgment of his Peers but also to the Laws of Christian Liberty which admits of no Corporeal punishment upon the score of Religion much less of Exilement which is a forfeiture of the highest degree Ecclesiastical Interest which is far the more sublime and more noble Power may exterminate from Heaven but not from Earth For it is the same thing whether Interest advise or act According to that of the Learned Bishop Taylor Many saith he have got a trick of giving People over to the Secular Power which at the best is no better then Hypocrisie removing Envy from themselves and laying it upon others a Refusing to do that in external Act which they do in Counsel and approbation which is a transmitting the Act to another Liberty of Prophecying p. 229 and retaining a proportion of the Guilt to themselves even their own and the others too And therefore this Law having a greater regard to the Publick good and the Defence of the Prince enervated by the dispeopling and emptying of his Country of its chiefest Sinews and Strength which consists in the Number of Inhabitants and which he that travels the Popes Territories may easily observe not to be the Interest of Rome has here taken care that no Man should be exil'd before legal judgment of his Peers Not but they who deserve Banishment ought to be punish'd according to their deserts but then they must be first convicted according to the Law of the Land Otherwise it is not only contrary to the Law but the Customs of the Realm by which no Man can be banish'd out of his Native Country but either by Authority of Parliament or in case of Abjuration for Felony by the Common Law Therefore the secular Law never so certain in its course as when it steers without the helm of Ecclesiastical Ambition is so tender of Exilement that it will not permit even the Prince himself to send any Subject of England to serve him against his will nay if you believe the Lord Cooke a Man cannot by constraint be commanded out of England into Ireland tho' for his Honour to be Deputy of the Kingdom Which shews how nice the Laws of England were to tread the Footsteps of Nature and Reason in this particular 5. No Man shall be destroy'd that is by the interpretation of the Lord Cook No Man shall be forejudg'd of Life or Limb dis-inherited or put to torture or Death And thus all oppression against Law by colour of any usurp'd Authority or under the pretence of Justice is a kind of destruction Which is neither to be done aliquo modo by any way means pretence or shadow whatsoever Of this sort of Destruction the Psalmist complains when he cries out All the Foundations of the Earth are out of course The public good and safety was turn'd into public Violence and Oppression while Lawless Power and Arbitrary Dominion made Havock of the Lives and Liberties of the succourless People Then which a greater Calamity cannot befall Mankind For what more irreparable injury can be done to a Man then to deprive him of his life or maim him in his limbs thereby to demolish not only his well-Being but his very Being it self upon every Cholerick Incentive of Lust Ambition Superstition Revenge and many times of Interest and Politic Conveniency This prudent Nature foresaw and engrav'd in the heart of every Man a desire of association for mutual defence against the Rage of licentious Will and Pleasure Nature approv'd their design aided them with her own Light and dictated to them Her self those Principles and Precepts of Honesty Justice and Moderation which Heaven had infus'd into Her that they might reduce them into Laws to prevent the Havocks of unlimited Controul which wherever it sets footing reduceth All to Beggery Slavery and Destruction Which while it is the chief endeavour of Nature aiming at nothing more then preservation to keep fast bound in the Chains and Fetters of her own Law warrants the same method in Constitutions of Human Frame And certainly if they are to be thought the only Foelices Agricolae that live under the Protection of good Laws the English may be said rightly to be They who have the Laws of God and
Nature spreading their Cherubim-Wings over the Lives and Liberties of every particular person in the Nation The next and sixth Branch Neither will we enter upon his Possession nor commit him may seem to be a particular Promise of moderate Indulgence to the Subject in reference to the peculiar claims and Suits of the King relating to the Crown yet still springing from the same Original Which shews the Kings of England truly fit to rule while they themselves submit to the Laws by which they govern As it was said of Lycurgus Quod nihil lege ulla in alios Sanxit cujus non ipse primus in se Documenta daret The three next Branches relate to the great prejudices and damages which are sustain'd by the ill management and Execution of Justice through the Corruption of its Ministers against which the Law provides in these words We shall sell to no Man Justice or Right We shall deny to no Man Justice or Right We shall delay to no Man Justice or Right The selling of Justice or taking Bribes and the denial and delay of Justice as they are equally dishonourable to God so are they to them that require Justice equally injurious For it is the highest presumption that Man can be guilty of to expose to sale one of the chiefest Attributes of the Almighty There is nothing whereby God more exalts himself to Mankind then in the frequent Repetitions of his Justice Of which he that makes Merchandize prostitutes the Honour of his Maker for filthy lucre and yet neither is it his own to sell for God is the Fountain of Justice from him it all flows and his it is Only he entrusts it with the Ministers of Justice for the good of Mankind He that does Justice uprightly acts like God but he that sells it sells the Act of God and not his own for tho it prove Justice in the purchaser yet it is not Justice in the seller but the Price of the Buyer which if the poor and needy want they must not have because they have not wherewithal to bid for it who are nevertheless under the Protection of Justice equally with the most Opulent However God out of his boundless Providence foresaw how great would be the Temptations of Avarice and the allurements of Gold tho currant no where but upon Earth that he provides against the charming Iniquiry by a strict command Thou shalt not respect persons nor take a Gift for a gift blinds the eyes of the wise So that the high Crimes alledg'd against the Sons of Samuel were that they turn'd after Lucre and took Bribes From whence the Light of Nature infus'd the same detestation of these Misdemeanors in all other Ministers of Justice By Hesiod they are call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Gift-eaters whom he makes Justice to follow weeping and bewailing the fatal Consequences of her bad usage Phocyllides also from the same Law of Nature could give this advice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let not favour byass Justice for if thou dost saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 God will afterwards judge thee And another of the Gnomonicks wouldst thou support thy life 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by doing justly then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fly ill got gain We read in Herodotus of Sesamnes one of the Persian Judges put to death for Bribery by Cambyses who caus'd him to be flea'd after he was dead and his Tann'd Skin to be cut into Thongs to make a Seat for his Son Among the Roman's by the Junian Law Bribery or selling of Justice was punish'd with Exile and by the Acilian Law they were immediately to receive Judgment without any demurs It may be thought that selling of places relating to Courts of Judicature was not a custom then in practice else we might conclude that they who made such ample provision against the selling of Justice would have as carefully provided against the selling of those Inferiour Authorities that refer to the Execution of it Especially when the Rates run so High as now they do Twelve hunder'd Two Thousand pound for a Jaylours place Four hundâ—â—â—â—oâ—â— Serjeants and so proportionably for others For it serves for a specious Plea to those that shall be call'd to accompt for their miscarriages that they have bought so dear Nor does the Name of a Favourite in Court sound well for though it may not be so effectual as some may think yet is the thing it self suspicious to all especially when they see the Fortunes and Emoluments of that person advanc'd above others of equal merit But after pardon for this short digression the two next Grievances by this Charter promis'd to be reform'd are the delay and denial of Justice both much of the same Nature seeing that the Delay is in some measure the denial of Justice Which words delay of Justice are so expounded by several Acts of Parliament that by no means Common Right or Common Law should be disturb'd or delay'd tho' it be commanded under the Great or Privy Seal or by any Order Writ Letters or Command whatsoever even from the Prince himself or any other but that the Justices shall proceed as if no such Writs Letters Messages or Commandment were come to them And therefore the Epithite of Celeris is giv'n to the Law in regard there is nothing which can be more welcom to those who are aggriev'd or distressed then quick and speedy Relief And this is without doubt the meaning of those positive Commands in Scripture to which the Judges of the Earth to hear the cries of the Poor and Needy who if not soon redress'd are doubly undone by unnecessary Expence and with-holding from them the profit of their legal and just claims But as the Delay is bad so is the positive denial so much the more to be avoided by how much the Lamentations and Cries of the injur'd make a louder sound in the Ears of Heaven and open with greater swiftness and more rapid violence the Flood-gates of Divine Vengeance upon a Nation For if the cause of the oppressed be the cause of God then the denial of Justice is the denial of the Almighties own Suit with whom this great Charter would not contend And therefore the Prince here minding his future Salvation freely discards the selling delay and denial of Justice knowing how little they would avail when unreliev'd Oppression should plead against him at the Bar of Heaven If then the Law of England be the surest Sanctuary which an English Man can take and the strongest Fortress to protect the weakest of All it must be assuredly much more sacred and beneficial when built up of the Materials of Gods Commands and Natures Light Nor can they who at any time shall seek to destroy so beautiful a Structure expect other then to perish in its Ruines But here may some advance a Quaere and ask what is meant by this Per legem terrae this Law of the Land A Scrutiny with the same facility as made plainly
in the World may sometimes need a little Physie and the most temperate and sane may sometimes disorder the frame of their Health by their own Excesses But it is rarely known that such accidental Commotions of the blood prove mortal as meeting with those timely Applications which soon restore and settle all again Thus the Epidemic Fever of Dudley and Empsons Prosecutions infected for a while the Veins of the whole Nation but the Healthy Constitution of the Kingdom foon threw it off and it was cur'd with a little Blood-letting The Proceedings Censures and Decrees of the Star-Chamber were for some time in the very words of the Act an Intolerable Burthen to the Subject and lookt upon as a means to introduce Arbitrary Power and Government Even the Privy Council it self was tax'd with determining of the Estates and Liberties of the Subject contrary to the Law of the Land Therefore was the Power of the Star-Chamber by that Act absolutely and clearly dissolv'd taken away and determin'd And that not only for the general reasons already recited but upon the rehearsal of the Grand Charter and the several Confirmations of it from time to time First because the Judges of that Court had undertaken to punish where the Law did not warrant to make Decrees for things having no such Authority and to inflict heavier punishments then by Law were warrantable and secondly for that all matters examinable and determinable before the said Judges might have their proper remedy and redress and thâ—ir due punishment and correction by the Common Law of the Land and in the ordinary Course of Justice elsewhere And with this same Court fell also several other Jurisdictions of the same Nature Then for the Regulation of the Council it was enacted that neither the Prince or his Council had or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libell or by any other Arbitrary way whatever to examine or draw into question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be try'd and determin'd in the ordinary Courts of Justice and by the ordinary Course of the Law And thus the Grievances of a well constituted Nation at one time or other have still their mortal Periods and are forc'd to flie from the stern and awful Countenance of Fundamental Law For Law has Heav'n on her side which Injustice and Oppression cannot pretend to For where Laws are grounded upon the firm Basis of Divine Reason the violation of Humane Constitution is the violation of Heavenly Justice Against which for Cruelty and Oppression to make a kind of a Titanic War proves as fatal in the end as the Insurrection of those Gyants against Heav'n it self Leges dormiunt non moriuntur The Laws may sleep but never dye The locks of the Law may be cut off but they will grow again and then she rouzes up her self more vigorously and with new recover'd strength shaking off the feeble bands of Violence nere ceases till she has brought Illegal Force and Arbitrary prosecution upon their Knees Nor fares it better with those who to enrich and raise their own Families advise the infringement of Fundamental Law and moderate Rule Who for the sake of Temporary Splendour and Command care not tho they drive the Chariot Wheels of their Ambition over the Necks of undone Millions And thus we may behold in History even where Tyranny it self controuls an Ibrahim Bassa with all his tickling flattery dragg'd to the block to attone the oppression of the Incens'd Multitude with the loss of his Criminal Head Our own story brings us forth the Great Justiciary of England Hubert de Burgo once a Patriot and lover of his Country but at length beguil'd by the Advantages of Honour and Preferment for Caressing the humour of a young Prince and instructing him which way to avoid this very Charter granted by his Father and by himself in his Nonage confirm'd for which he was advanc'd to the highest Dignity in the Kingdom and made Earl of Kent not only degraded of his Honour not only stripp'd of all his Wealth which he had so unduly obtain'd but which wat more he saw himself a forlorn sufferer under the heavy Indignation of that Prince to whom he had so officiously devoted his Illegal Industry We may also in the progress of the same Story read the Tragical Exits of the Potent and Opulent Spencers Father and Son for giving rash and evil Counsel to their Soveraign against the Form of the Grand Charter So hard a matter it is for the most powerful and politic Champions of Illegality and Oppression to wrastle with the Fundamental Law of this Nation without a dismal fall According to that of Pindar for this is not novel but ancient Experience Isthm Ode 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Most bitter is the end which attends the sweets of Injustice And therefore Thuanus reflecting upon the Calamity of Ibrahim Bassa before-mention'd A most remarkable example saith he to those who for the sake of one person whose favour they have won by most unseemly and pernicious Devotion trample under Foot the general Hatred of all others whereas they ought rather to imitate those persons who being advanc'd to highest preferments so behav'd themselves in the discharge of their Trusts Thuan. l. 96. that they may be always ready to part with their preferments and not be afraid to retire to a private life if it be their Fortune to be remov'd Otherwise it many times falls out that they are left to the free revenge of all whom they have offended or else with the great regret of the Prince himself are hurry'd away to open punishment for the satisfaction of Popular indignation Even Princes themselves have labour'd under the evil consequences that have attended the Injuries which they have done to the fundamental Constitutions of their own Realms which has only serv'd to render their Lives and all their Glory troublesome vexacious and full of perplexity and to deprive them of that quiet and tranquility which makes the Enjoyment of Life sweet Lewis the XI as Comines his own Servant records was the first to use his own words who at his own pleasure levy'd mony upon the People without their consent And to gain the consent of the Nobility so to do within their own Jurisdictions promis'd them Annual Pensions Certainly saith the Historian he gave so great a wound to France that it will not easily be cur'd For none of the former Kings so afflicted France as he did but more especially by subverting the Authority of their Parliaments And is therefore said to have bin the first of the French Monarchs that freed his Successors hors de Page out of Guardianship Of this Prince Mezeray gives this accompt The Conduct which Lewis while he was yet but Dolphin observ'd in all his Actions particularly toward his own Father and Subjects
of the Dauphinate La vie du Louis XI sufficiently demonstrated what his Friends and Subjects were to hope from him He govern'd always without Counsel most commonly without Justice without reason He thought it the height of Policy to forsake the Road of all his Predecessors and to leave nothing unassay'd whether good or evil to make himself redoubted His piercing but too fine and crafty Wit was the greatest Enemy of his own and the repose of France He chose rather to follow his own irregular Fancies then the prudent Laws of the Realm And he caus'd his Grandeur to consist in the Oppression of his People the undoing and debasing his Nobility and the advancement of the meanest and most indigent But when he grew near his end then the considerations of what he had done tormented him in so cruel a manner that he was afraid of every one that came near him grew jealous of his own Son and Daughter Comines and he that had invented Prisons and Fetters for others was now his own Prisoner in his Castle of Plessis fortify'd with a grate of Iron-Bars and planted with Watch-houses of Iron for his Guards So that it was impossible to hold a King in a streighter Prison then he held himself where he liv'd unseen of any because he would let none come at him His Physitian who had sworn to him he should not live eight days if he turn'd him away as he did his other Servants he so dreaded that he flatter'd him to obtain his Favour And to prolong his Life which he was so afraid to lose he superstitiously sent for a Hermit from the farthest Corner of Italy expecting great matters from his prayers In short says Comines From his Childhood to his Death he was in continual noise and trouble so that were his joyful days to be number'd they would be found but very few But when there was no hopes of life he sent for his Son and gave him other advice then he had follow'd himself to rule according to the Law to ease his People and reduce the Taxes to their former Establishment So that the Law is as much the security and safety of the Prince as of the People and the Observation of the Law is so far from being a servitude that it is a Royal Vertue For this is that which as it secures his outward felicity secures the Inward tranquility of his mind and raises him a Monument of lasting Fame and Veneration after death in the hearts of his Subjects from Generation to Generation And thus Lewis the XII sirnam'd the Just so dear to his People while He liv'd became so much the Darling of Posterity and his memory continu'd so sacred and so much reverenc'd even in the time of Thuanus that when any debate arose either in Council Parliaments or Courts of Judicature about the Miscarriages of the Government always the Raign of Lewis the XII was propos'd as the Pattern and Standard of the Reformation intended Thus the Law of England is the Security of the Prince and People The security of the Prince as being the security of his Prerogative which is a part of the Law and comprehended in it And so the security of the Prerogative becomes in course the security of the Peoples Liberty being both determin'd by the Law and Customs of the Land there being no other Prerogative nor any other Liberty of the Subject then what they allow So that there is nothing can injure the Law of England but wresting and misinterpretation nor can it well be wrested neither unless it be screw'd from the intent of Reason and Honesty Neither is it possible for any man to mis-interpret it without the Shipwrack of his Conscience upon the Rocks of specious pretence For misinterpretation mis-guides the Law to Evil which no man can think to be a vertuous Act whatever may be his aim in doing of it The Law of England imposes nothing but what is grounded upon the Maximes of what is just and honest in it self and is currant to all as bearing the Stamp of Right Reason and Divine Truth which They who mis-interpret counterfeit the Impression and utter the base Coyn of Falshood and Dissembl'd Pretence for Real Verity But when Dominion and Authority believing it self too rudely curb'd or Popular Liberty deeming it self too severely checkt seek to transcend the Limits of the Law then Interest and Faction create Sidings and Parties and invent wicked Names of Distinction and the whole Frame of Law is put into Disorder Nor does either party want Incendiaries who for their private Emoluments and Advantages kindle those Fires on Earth that shall torment 'em hereafter Whereas the strict observance of Command according to the Law and the due performance of Homage and Obedience according to the Injunctions of the same Law would keep all things right and nothing could shake the Prerogative and Safety of the Prince or the Liberty and Security of the Subject The greatest Happinesses that God bestows upon Mankind have all their Limits set The Sun is ty'd to his Diurnal and Annual Motions The Stars are fix'd within their proper Spheres and cannot stir beyond the Law of Nature The Seasons have their limits the Sea and Land have both their bounds Nay Vertue her self if she runs into Excess mounts or descends to some particular Vice And therefore good Government cannot take it ill if it be impal'd within the Laws of Order and Moderation Especially seeing that Justice it self whose Minister it is is restrain'd and limited in her Power The same considerations fasten the Ligaments of Obedience For the whole World is but one entire piece of Obedience to its Soveraign of which that only unruly part is Man himself We are bound to obey our lawful Supream not only as Subjects for the outward benefits of Peace and Protection but as Christians for the inward satisfaction of Conscience as being a part of our Christian Duty Neither is it less folly then Impiety to be disobedient to those that govern by good and wholsome Laws For thereby they destroy their own preservation Therefore it was one of the highest praises of the Lacedemonians that they knew when they had good and wholsome Laws and as well knew how to obey them And it was their constancy in adhering to their fundamental Laws and the reverence they bare to their Princes so strict in the Observance of them that so long preserv'd them their Reputation of being what they were the most renowned People of Greece To serve a Prince because we receive particular Benefits and Graces from his Authority is no Obedience but Self-Interest and consequently there is no assurance of their Fidelity which changes of an instant upon the hopes of a better Market Neither can that be said to be true Obedience which is only a submission out of fear of punishment For that is only Self-love and a natural propensity to ease and repose If it may not rather be said to be