which are all the ways whereby any right can be legally established Therefore we must look upon all such as cast in such Baits for the People to nibble at that they intend to make a prey of them and having fastned the gilded Hook in their Jaws may draw them out of their own Element to a free air indeed but such as will stifle them For when any Subjects by the instigation of such pretended Patriots are excited to put in their claim of Original Power and shake the Government though their Rebellion be prosperous it is not without vast effusion of Blood that the Government can be changed After which how will it be possible that the Community of the People can be put into that pristin state of freedom those State-Mountebanks promise but rather into an Anarchy which is contrary to the end of all Society and to quiet and peace and is the Parent of all confusion which is much worse than the hardest subjection This truth by a most chargeable tryal we experimented in the late War when the Pretended Saviours of the Nation and great Promoters of Spiritual and Temporal Liberty having wheedled the People into a belief of their honest Intentions and by their prosperous Arms overthrown the most temperate Monarchy by the effusion of infinite Blood and Treasure by pretended agreements of the People they assumed the Government to themselves enslaving both the Nobility Gentry and Commonalty more than any Foreign Conqueror would do or ever their Ancestors had been in any Age and the Golden Scepter and that of King Edward with the Dove was turned into a Rod of Iron and a Flaming Sword Basilisks and Fiery Serpents CHAP. IV. The Benefit of Government from the Establishing and Instituting of Laws THe (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Alex. c. 1. Philosopher describes Law to be the Promulgation of what by the common consent of the City is defined which commands upon Terms how every thing is to be done Which is to be understood after Government is established where the Lawgivers are agreed upon and the Subjects known that are to obey them In another place the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ethic. Nicom c. 5. Philosopher saith Laws are to be declared concerning all things that may respect the common Benefit of all or of the Optimacy viz. the Nobility or Prime Gentry or the Sovereign or be agreeable to Vertue or to any other Necessity of the People and these he calls Common Laws The same (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repab l. 2. c. 6. Learned and Wise Composer of Politicks tells us That the Law hath no force to compel Obedience but as it receives it from Usage and Custom and this springs not from any thing so much as from length of Time and multitude of Years Of these kind of Laws few Nations make such use as we do in England under the Title of Common Laws and Customs and it is no small Credit to them that so Judicious and Ancient a Writer hath given such a Character of these kind of Laws by which we have something more than a shadow of ours The same (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosopher likewise with great Judgment tells us That to forego Laws received and long used and over-easily to substitute new ones is to make weak and infirm the Laws themselves Yet he is not for tying Posterity to the Laws of their Progenitors too strictly for that it is likely saith he the first Ancestors of them being such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sons of the Earth or such as escaped from some great Calamities and Destructions were rude and illiterate such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so that it would be (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. absurd to persist in their Decrees therefore he saith All seek not their (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Countrys Laws but those onely that are good as generally such are which have had the Approbation of Ages By what hath been noted from so Ancient and Judicious an Author I may easily infer That Laws resulted from Government and were the necessary Products of such Counsels as the first Leaders or Monarchs entertained to order their People by and since he (g) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. makes the Laws of such like validity and force in the Commonwealth as the Rules and Orders of Parents in private Families we may well conclude That as those had their Origination from the Will of the Father of the Family so the other from the Prince who is his Peoples Common Parent Therefore in Homer Kings are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Givers of Laws or Judges of the People as well as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors or Feeders Conductors Defenders or Shepherds of the People So in Sacred Writ the first Hebrew Captains or Kings were called Judges Therefore Pomponius Laetus saith In the ancientest Times before Laws were agreed upon the King's Will was a Law And (i) Regis nutus Arbitrium pro Legibus lib. 10. Dionysius is express That the intimation of their Mind by Signs and their absolute Wills were in stead of Laws (k) Romulus ad libitum imperitaverat dein Numa Religionibus Divino Jure Populum devinxit Sed praecipuus Servius Tullius sanctor Legum fuit quis etiam Râ—g â—s obtemperarent 3 Annal Tacitus giving an account of the Roman Laws saith of Romulus That he commanded at his own pleasure and after him Numa bound the People with Religion and Divine Laws Some were found under Tullus and Ancus but the principal Institutor of Laws was Servius Tullius to which even Kings should obey that is they thought themselves obliged to observe and keep the Laws they had appointed He then notes That after Tarquin was expell'd the People prepared many Laws for the defence of their Liberty and to strengthen their Concord against the Factions of the Fathers A late Judicious (l) Nalson Common Interest p. 14 15. Author saith That God and Nature investing Primogeniture with the Right of Kings and Magistrates they made Laws and this not being observed or wilfully disowned by some Popular Patrons who would possess the People that the Laws made Kings and Governours hath created the greatest Mischiefs by giving an Inlet to the Changes of Governors and Government For granting this most enormous Doctrine and dangerous Principle Laws being alterable for the Convenience of Prince or People by consequence the Right of the Sovereign if it be onely from the Laws must be precarious also The Opinion is in it self most absurd and unreasonable for there never could be Laws till there was some Form of Government to establish and enact such Laws and give them their energy and vigour For nothing can have the force or power of a Law or oblige men to Obedience unless it proceed from such Person or Persons as have a Right to command and Authority to punish the
subsequent Acts of Parliament supplied all Defects and all the Limitations of that absolute Power which accrued by Conquest being the free Concession of himself and his Successors which appears in their Grants by way of Charter as I shall hereafter have occasion to enlarge upon it is most evident that the King's Power is absolute where no Law (f) D. Digs Unlawfulness of Resisting can be produced to the contrary and no special Case can be determined by the Subject to the Kings disadvantage and though the Kings succeeding the Conquest to sweeten Subjection quaedam jura pactis minuerunt and these Acts of Grace were confirmed by Promise and Oath No Contract betwixt King and Subjects whereby they may exact an Account yet we find no Footsteps of any security given that should endanger the Person or Regal Authority by giving to their Subjects any legal Power to unking them if they should not perform Covenant Nor could it be rational to expect such for they knew full well if they should not break such Promises yet a Pretence that they did so as we have known it was alledged concerning the Coronation Oath might upon the first opportunity create a Civil War Therefore their Subjects had as little reason to accept as the Kings had to offer so pernicious a Security as would bring both Parties into such a sad Condition For if Rebellion were to be allowed in any Case that Case would be always pretended and though the Prince were Just Wise and Religious yet ambitious Men to compass their own Ends would impute to him Oppression Weakness or Irreligion as the World knows by too sad Experience was verified in King Charles the Martyr who taking his measures of others Sincerity by the rule of his own Heart suffered pretences of publick Good to grow up to insolent Tumults and at last to Rebellion and notwithstanding his Exemplary Practice in his publick Devotions was traduced to have but handsomly dissembled and favoured another Religion in his Heart and at last brought before a crew of Regicides impeached of breach of Trust Tyranny and I know not how many horrid Crimes against his Subjects who yet died the Peoples Martyr and the Royal Asserter of their Liberties and Priviledges which all his Subjects found to expire with him the greatest Arbitrariness and cruellest Tyranny being during their Power exercised by the new Common-wealth Men that ever was read of in any History Those who read Books among those of the Sect of Libertines in Politicks and so much magnify the great name of Liberty of the Subject and co-ordinate Powers Writers who lived under Common-wealths no Guides to us converse most in Greek and Latin Authors who lived under Commonwealths and so were profuse in the commendation of their Country Government against Usurpers or else these admired Authors were (g) Jus Regium p. 134. Stoicks who out of a selfish Pride equalled themselves not only to their Kings but to their own Gods even as our Quakers who pretend a Light within them a more sure guide to them than the Law Now the same reason they had to commend their form of Government We have more reason to commâ—nd our Government than the Romans or Grecians theirs and so much more as Monarchy is preferrable to Aristocracy we in England have reason to commend our Constitution where our Kings are truly the Fathers of their Country and if they would ballance the convenience or inconvenience of either Government they would soon discover it For whereas they say that the Doctrine of Non-resistance is the readiest Motive to establish Tyranny It is much more certain and experimentally known that the Leaders of the Rabble always prove such and that the Distractions of a civil War which ordinarily are occasioned by the pretence of reforming something amiss in the Governours and Competitions betwixt Persons for Soveraignty destroy more than the Lusts of any one Tyrant can do which made Lucan a Republican and of the Pompeian Party conclude after a sad review of the continual Civil Wars betwixt Sylla and Marius Caesar and Pompey without touching upon what followed under the Triumvirs Foelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis And if he preferred even the Tyranny or absoluteness of those Kings before the State of Civil Wars how much more have we reason to submit and that chearfully to the most easy Yoak of the Sovereignty of our Princes We need not be solicitous that their unaccountableness to their Subjects shall prompt them to Tyranny because we have good Security as strong as humane Wisdom ever invented that we shall live happily under that Constitution which our Fore-fathers enjoyed the Benefit of in an high Degree The Security we have that no Arbitrary Government can be exercised in England never distrusting the sound temper of the Policy For first our Kings swear at their Coronations to preserve the Laws Liberties Properties and Religion Secondly If they should command illegal things the Executors of them are responsible to Parliamentary Inquisitions Lastly the Interest of the King is the same with that of the Subject as to their Prosperity and Misery so that a King will always consult the good of his Subjects which made (h) Praeestis hominibus sed hominum causa nec domini modo Arbitri rerum sed Tutores Administratores estis Collata est in sinum vestrum a deo hominibus Respublica sed nempe in sinum ut foveatur Epist Dedicat ad Imp. Reges Principes Lipsius tell the Sovereigns That they govern over Men but for their good and are not only Lords and Judges of Matters but Tutors and Administrators That the Government of the Commonweal by God and Men is placed in their Bosoms or Laps but so as to be cherished and protected there To conclude this discourse We have heard of or seen the sad Calamities the Republican Rebellion brought upon all his Majesties Dominions when the mild Government of King Charles the First was altered to the most Bloody and Tyrannical one of his rebellious Subjects that any Age could parallel and we have had Experience of the merciful Government of his Royal Son and Successor and have lived to see all the Establishments of Usurpers brought to Confusion We have seen a formidable Rebellion burst forth in our Magnanimous King James the Second's Reign which had been forming seven Years before utterly overthrown in two Months and we cannot peruse Histories but we must meet with infinite Examples of the sad devastations such Rebellions bring to their Country and the unsuccessfulness of them Therefore I would earnestly advise all Malecontents never to make their Country's Ruine and the slain Carcasses of their Countrymen the Steps by which they must ascend the Scaffolds or the Rounds of the Ladders they must mount the Gallows which without a Prince's Clemency are the sure Rewards of all Rebels and their certain Fate CHAP.
fifth when the Multitude rule by majority of Voices and not the Law so that their temporary Votes were Law We have resemblance of these kinds of Governments in our Corporations Concerning the Democracies in Corporations where in the Elections of Magistrates in some places all Freemen in others those only who have Burgage Land in others a Common-Council solely have Vote and the whole Body or such and such parts have Power to make By-laws If we had no other Argument against Democracy but this that it is of that narrow capacity that it cannot be adapted to order Regions of large extent it would be sufficient to discredit it for we find in those incorporated little Democracies there are more Factions and divisions than in the whole large adjoining tracts of Land about them though the Villages contain a much numerouser People It is rarely found but that in all Votes relating to the public Combinations are made by Kindreds Companies or Factions The inferior sort having equal Vote often out-number the Richer and Wiser and so businesses are aukwardly or tumultuarily determin'd and the meaner People must either neglect their domestic affairs to attend frequent Conventions or leave the managery to a stirring factious Party which is (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 5. contrary to the fundamental equality and freedom they labour for As these Corporations were first created by the Sovereigns Grace and Favour for the encrease of Trade and enriching the places and administration of Justice so while they keep themselves within the bounds of their Duties are Loyal to their Prince and Faithful to the Government and presume not by their Pragmaticalness to dispose of the Fate of the Empire or by their factious Elections to make disturbances It is very necessary they should enjoy all their municipal Priviledges But so many Corporations having of late acted contrary it is no wonder that the late King upon solid reason of State issued out his Quo Warranto's against them and in all the new Charters reserv'd a Power in the Crown of displacing the Evil Magistrates at pleasure But to leave this to another place I shall note out of the Philosopher such Arguments as he useth against Democracy 1. Argument against Democracy Injustice As first that the common People being the greater number and the Soveraignty being supposed to be in the whole complex Body whatever they approve must be establish'd as a Right and Law (l) Vbi plebs est domina necesse est ut quod plurimis visum sit hoc quoque sit ratum hoc sit jus Polit. l. 6. c. 2. and suppose they vote a Dividend of the richer Citizens Estates among themselves though this by the force of their Government be just yet in its own nature it is great Injustice to destroy the rich Man's Propriety as well as it were for the Rich to do the same to the Poor 2dly 2. Against the Common Peoples Liberty of Elections Liberty being the principle of all Democratical Government it consists in two things either to live (m) Plerisque jucundius est licenter vivere quam modeste Ib. c. 2. licentiously which in Athens and other places was very fatal and as Demosthenes Isocrates and Cicero complain that under the specious pretence of Liberty even Anarchy prevail'd Or Secondly in the free and uncontroulable Power of chusing their Magistrates and this accasioned the contest of parties for Victory hence Crowds Tumults Routs Riots Frays and Quarrells and after all Heart-burnings (n) In Licurg Vide Giphanii Com. in c. 7. l. 2. Polit. Arist Plutarch gives us an account of the manner of some Elections for Senators that certain Persons being closed in a Room where they might hear the peoples Voices but not see the People One Competitor after another was proposed and him who was judged to have most Voices they carried Crowned to the Temples of the Gods Women and Children following him with Shouts This (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. Polit. c. 9. Aristotle calls a Childish action in so grave an affair it being not fit for any to seek Magistracy in such a way that by the judgment of the Multitude only is thought fit to Rule but (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. he that is worthy be he willing or unwilling should have the place Therefore we observe where the King hath the sole Power of nominating Judges Sheriffs Justices of Peace c. though they are of as great advantage to the Peace and order of the Government as Mayors Sheriffs or Common-Council Men of Corporations there are neither Hubbubs or Quarrels at their Elections and they are generally better qualified than such as court the peoples Favour Therefore (q) Rempublicam perituram in qua viri Principes consultant Populus vero imperita plebecula decernit Laertius exclaims justly that the Common-weal must perish in which the Nobility consult but the People and unskillful common Rabble give Judgment 3dly 3. Their Faction In this Government there is a continual spawning of Faction So it is (r) Giphanii Comment in lib. 5. c. 5. Polit. observ'd that at Athens the Democratical Government mostly obtain'd yet in the Attick State there were no less than three Factions according to the tripartite division of the People viz. the Diacrii that inhabited the mountainous Parts who were for pure Democracy the Pediaci who inhabited the lower Grounds and they were for a mixture of Oligarchy and the Parulii or Inhabitants on the Sea-Coasts and those were a mixture of both which Aristotle calls the Politick Hence Pisistratus appearing an Enemy to the Pediaci made himself gracious with the People and so easily got the Government So he instanceth in the changes of those of Milesia by the Prytania which was like a Consulship or Dictatorship at â—â—me So he gives an account of Dionysius feigning himself to be wounded by the Nobility who hated him for his love to the People raised a great Envy and Rage of the People against them and so established himself So Theagenes by slaying the Cattle of the Nobility animated the People of Maegara to follow him till by suppressing the Nobility and Richer he got himself to be Master of all The like we may read in (s) Lib. 13. c. 9. Diodorus Siculus that Agathocles did at Syracuse All which Changes were the Issues of Factions betwixt the Nobility and Common-people which is as inseparable from this sort of Government as the Prickle is from the Thistle or the Husk from the Corn. Fourthly The Philosopher notes That in this Government the Demagogues were most used These indeed were the Bell-wethers of Faction the Conductors of the Peoples Wills and Affections by the power of their Popularness The (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. l. 4. c. 4. Philosopher tells us there was no use of them where the Law commanded but where Matters were judged by the Decrees of the
Preamble to the Writ of Summons 4 E. 3. is very (r) Cl. 4 E. 3. m. 13. dorso General Causes of Summons remarkable Rex c. Qualiter negotia nos statum Regni nostri contingentia postquam suscepimus gubernacula Regni nostri hucusque in nostri dampnum dedecus ac depauperationem populi nostri deducta erant vestram credimus prudentiam non latere propter quod non volentes hoc urgente conscientia ulterius sustinere ac desiderantes toto corde statum Regimen Regni nostri secundum juris ac rationis exigentiam ad honorem Dei tranquillitatem pacem Sanctae Ecclesiae ac totius populi ejusdem Regni reformari Ordinavimus c. Parliamentum c. The 22 of E. 3. hath a peculiar (s) Cl. 22 E. 3. part 2. m. 9. dorso Clause Quod dictum Parliamentum non ad Auxilia seu Tallagia a populo dicti Regni nostri petenda vel alia onera eidem populo imponenda sed duntaxat pro justitia ipsi populo nostro super dampnis gravaminibus sibi illatis facienda Another considerable (t) Cl. 31 E. 3. m. 21. dorso Clause is to be found 31 E. 3. Et quum praedicta negotia perquam ardua sine maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni nullo modo expediri poterunt ad quorum expeditionem Auxilium Consilium tam a vobis c. habere necessario oportet The (u) Cl. 3 H. 6. m. 9. dorso Preamble 3 H. 6. is to enquire how Justice hath been done c. Quia nos jam dum in Annis degimus teneris an pax justitia ubilibet inter Ligeos nostros Regni nostri Angliae sine quarum observatione Regnum aliquod prospicere non potest debite conserventur exhibeantur necne c. Therefore he summons a Parliament The cause (w) Cl. 22 23 E. 4. m. 11. dorso of the Summons 22 E. 4. is thus expressed Quibusdam arduis urgentibus negotiis nos securitatem defensâ—onem Ecclesiae Anglicanae ac pacem tranquillitatem bonum publicum defensionem Regni nostri Subditorum nostrorum ejusdem concernentibus Therefore he summons them The special causes are mostwhat to have supply against the Kings Enemies Special Causes of Summons the French or Scotch Kings and it is to be noted that in the Summons of King E. 2. mostly the (x) Sâ—otis Inimiâ—is Rebellibus nosâ—ris Claus 2. E. 2. m. 20. dorso Scots are not only called the Kings Enemies but his Rebels which implies them Subjects by vertue of the Homage done to his Father and so 8 E. 2. M. 24. dorso it is called Terra nostra Scotiae though he was the most unfortunate of all our Kings in his Expeditions against that Kingdom The first (y) Cl. 14 E. 3. part 2. m. 28. dorso With the Advice of the King's Council Writ I have found wherein it is said the King called his Parliament with the Advice of his Council was 14 E. 3. quia de avisamento Concilii nostri ordinavimus and so in 46 E. 3. and afterwards sometimes used and often omitted but in later times generally used The last considerable thing in their Writs is what the Prelates c. summoned were to do at these Parliaments which most-what is comprehended in these Words That it is (z) Vestrum expedit habere consilium Cl. 6 Jo. m. 3. dorso What the Summoned were to do expedient to have their Counsel or nobiscum super dictis negotiis tractaturi vestrumque consilium impensuri 23 E. 1. m. 9. dorso or ad tractandum ordinandum faciendum nobiscum Cl. 24 E. 1. m. 4. dorso Ad ordinandum de quantitate modo subsidii Ibid. m. 7. dorso habere colloquium tractatum Claus 2 E. 2. m. 20. dorso ad tractandum consentiendum Cl. 6 E. 2. m. 2. dorso So in (a) Cl. 14 E. 3 par 1. m. 33. dorso another Ordinabimus quod juxta consilium vestrum aliorum Praelatorum Magnatum caeterorumque ibidem convocatorum viderimus opportunum In the (b) Cl. 20 E. 3. par 2. m. 22. dorso 20 of E. 3. it is thus expressed Ad consentiendum hiis quae tunc praedictos Praelatos Comites alios Proceres ordinari contigerit super negotiis antedictis and the like 46 E. 3. m. 11. dorso In the Writ 38 H. 6. m. 29. dorso it is Ad tractandum consentiendum praecludendum super praemissis aliis and 23 E. 4. Et concludendum and so in the 15th of K. Ch. the First Ad tractandum consentiendum concludendum SECT 3. Of the Summons of the Temporal Lords I Have been the longer upon these Writs of Summons to the Clergy Summons to the Lords Temporal like those to the Prelates excepting in some few Particulars because those to the Nobles differ'd not much and the material differences will be all I need note in their Writs and in these we may find the gradual alteration from giving Counsel and Advice only it came to Treaty Ordaining Consenting Doing and Concluding I shall refer the curious Reader for the remarks that may be made from all these Writs to Mr. Prynn's (c) Part 1. Briâ—f Register p. 1â—2 c. Collection of them and only note some few most to my purpose of the Earls Barons and the greater Tenents in Capite's Writs and then proceed to the Writs of the Knights Citizens and Burgesses The first Writ of Summons to a Parliament now left upon Record as (d) Ibid. p. 160. Mr. Prynn notes is that of 49. H. 3. those of the (e) Cl. 45 H. 3. m. 3. dorso 45th being only Summons to assist the King cum Equis Armis cum Posse vestro as that to W. de Bello Campo de Aumel and others shew being only to afford him aid against his Enemies and Rebels In most of the Writs to the Princes Dukes Earls Barons and Peers In Fide Homagio vel Ligeanâ—ia proper to Temporal Lords we find the Mandamus is Vobis in fide homagio quibus nobis tenemini But sometimes as to Edmund Earl of (f) Cl. 25 E. 1. m. 25. dorso Cornwal it is Mandamus in homagio fide dilectione and that to Thomas de (g) Cl. 36 E. 3. m. 42. dorso Furnival 36 E. 3. is fide ligeancia quibus nobis tenemini That to Edward Prince of Wales 49 E. 3. 6 m. dorso is directed Carissimo primogenito suo Ed. Principi Walliae and the Mandamus neither hath adjoined to it fide homagio or any other Word See Prynne's Brief Register part 1. p. 207. but only commands him to be present in propria persona though others have fide homagio or ligeancea It is to be noted that the clause in