Selected quad for the lemma: state_n
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A02848
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An ansvver to the first part of a certaine conference, concerning succession, published not long since vnder the name of R. Dolman
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Hayward, John, Sir, 1564?-1627.
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1603
(1603)
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STC 12988; ESTC S103906
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98,388
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178
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vntil it was violently drawn froÌ„ Sardanapalus to the Medes From them also Cyrus by subuersion of Astyages did transport it to the Persians and from them againe the Grecians did wrest it by conquest After the death of Alexander his captaines without any consent of the people made partition of the empire among them whose successors were afterwards subdued by the armies and armes of Rome And this empire beeing the greatest that euer the earth did beare was in the end also violentlie distracted by diuers seueral either conquests or reuolts Leo After writeth that it is not a hundred yeares since the people of Gaoga in Africk had neither king nor Lord vntill one hauing obserued the greatnesse and maiestie of the king of Tombute did enterprise to attaine soueraigntie aboue them which by violence he effected and left the same to his posteritie And because I will not bee tedious in running through particulars giue you an instance of anie one people which hath not diuers times receiued both Prince and gouernment by absolute constraint Et Phillidasolus habeto and I will yeeld to all that you affirme But failing herein you shall bee enforced to confesse that in manie yea in most if not in all countries the people haue receiued libertie either from the graunt or permission of the victorious Prince and not the prince authoritie from the vanquished people What helpes nowe doe you imagine that the people haue assigned to their Prince The first you affirme to be the direction of lawes But it is euident that in the first heroicall ages the people were not gouerned by anie positiue lawe but their kings did both iudge and commaund by their word by their will by their absolute power and as Pomponius saith Omnia manu a regâ—bus gubernabantur Kings gouerned all things without either restraint or direction but onely of the lawe of nature The first lawe was promulged by Moses but this was so long before the lawes of other nations that Iosephus writeth It was more ancient then their gods affirming also that the word Law is not found in Homer or in Orpheus or in anie Writer of like antiquitie Of this law of nature Homer maketh mention in these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And they who keepe the lawes which God hath prescribed And againe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vnciuill and vniust is he and wanting priuate state Who holdeth not all ciuill war in horror and in hate And of the iustice of kings he writeth in this maner 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In which verses Chrysostome affirmeth by the iudgment of Alexander that Homer hath delineated the perfect image of a King but that hee maketh mention of anie positiue lawes I doe rather doubt then assuredlie denie For Kings in auncient times did giue iudgment in person not out of any formalitie in lawe but onlie according to naturall equitie Virgil saith Hoc Priami gestamen erat cumiura vocatis More daret populis This was the robe which Priamus did alwaies vse to weare When he the people to him called their causes for to heare Which he doth also affirme of Aeneas Dido and of Alcestes The like doth Herodotus report of Midas king of Phrygia who consecrated his tribunall to Apollo and the like also dooth Plutarch of diuers kings of Macedonia Philarchus affirmeth in Athenaeus that the kings of Persia had palme trees and vines of goulde vnder which they did sit to heare causes But because it grew both troublesome tedious for al the people to receiue their right from one man lawes were inuented as Cicero saith and officers also appointed to execute the same Another original of lawes was thus occasioned When anie people were subdued by armes lawes were laid like logs vpon their necks to keepe them in more sure subiection which both because it is not doubtful and to auoid prolixitie I will manifest onlie by our owne example When the Romans had reduced the best part of this Iland into the forme of a prouince as they permitted libertie of lawe to no other countrie vnder their obedience so here also they planted the practise of their lawes and for this purpose they sent ouer manie professors and among others Papinian the most famous both for knowledge and integritie of all the authors of the ciuill lawe Againe when the Saxons had forced this Realme and parted it into seauen kingdomes they erected so manie settes of law of which onelie two were of continuance the Mercian lawe and the West Saxon law After these the Danes became victorious and by these newe Lordes new lawes were also imposed which bare the name of Dane-lawe Out of these three lawes partlie moderated partlie supplied King Edward the confessor composed that bodie of lawe which afterwardes was called Saint Edwards lawes Lastly the Normans brought the land vnder their power by whom Saint Edwards lawes were abrogated and not onlie new lawes but newe language brought into vse in somuch as all pleas were formed in French and in the same tongue children were taught the principles of Grammar These causes wee find of the beginning of lawes but that they were assigned by the people for assistance and direction to their kinges you bring neither argument nor authoritie for proofe it is a part of the drosse of your owne deuise The second helpe which you affirme that common wealthes haue assigned to their kings is by parliaments and priuie councelles But Parliaments in al places haue bin erected by kings as the parliament of Paris and of Montpellier in Fraunce by Philip the Faire the parliament in England by Henrie the first who in the sixteenth yeare of his raigne called a councell of all the states of his realme at Salisburie which our Historiographers do take for the first Parliament in England affirming that the kings before that time did neuer call the common people to counsell After this the priuie councell at the instance of the Archbishop of Canterburie was also established and since that time the counsellors of state haue alwaies bin placed by election of the Prince And that it was so likewise in auncient times it appeareth by thaâ— which Homer writeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 First hee established a councell of honorable old men And likewise by Virgill gaudet regno Troianus Acestes Indicitque foru et patribus dat iura vocatis Acestes of the Troiane bloud in kingdome doth delight He sets a Court and councell cals giues ech man his right I will passe ouer your course foggio drowsie conceite that there are few or none simple monarchies in the world for it would tire any â—to toyle after your impertinent errours and wil now rip vp your packet of examples whereby you indeuour to shew that the power of kings hath bin brideled by their subiects But what do you infer hereby What can you inforce will you
speake otherwise then you thinke There is no authoritie which the people hath in matters of state but it may bee either bound or streightned by three meanes The first is by cession or graunt for so the Romans by the law of royaltie yeelded all their authoritie in gouernment to the Prince Of this lawe Vlpian maketh mention and Bodin reporteth that it is yet extant in Rome grauen in stone So the people of Cyrene of Pergame and of Bithynia did submit themselues to the Empire of the Romanes So the Tartarians commit absolute power both ouer their liues and their liuings to euerie one of their Emperours so haue our people manie times coÌ„mitted to their king the authoritie of the parliament either generallie or els for some particular case For it is held as a rule that any man may relinquish the authoritie which he hath to his owne benefit fauour Neither is he againe at pleasure to be admitted to that which once hee did thinke fit to renounce And as a priuate man may altogether abaÌ„don his free estate and subiect himselfe to seruile condition so may a multitude passe away both their authoritie and their libertie by publike consent The second is by prescription and custome which is of strength in all parts of the world least matters should alwaies float in vncertaintie and controuersies remaine immortall And that this authoritie of the people may be excluded by prescription it is euident by this one reason which may be as one in a third place of Arithmeticke in standing for a hundred Euerie thing may be prescribed wherein prescription is not prohibited but there is no lawe which prohibiteth prescription in this case and therefore it followeth that it is permitted And generallie custome doth not only interpret law but correcteth it and supplieth where there is no lawe in somuch as the common lawe of England as well in publick as priuate controuersies is no other a fewe maximes excepted but the common custome of the Realme Baldus saith that custome doth lead succession in principalities which Martinus aduiseth to fixe in memorie because of the often change of Princes and the particular custome of euerie nation is at this day the most vsuall and assured law betweene the Prince and the people And this doe thâ— Emperours Honorius and Arcadius in these wordes coÌ„mand punctuallie to be obserued Mos namque retinendus est fidelissimae vetustatis the custome of faithful antiquitie must be retained which place is to this sense ballanced by Pau. Gastrensis Frane Aretinus and Phil. Corneus who termeth it a morall text The like whereto is found also in the Canon lawe and noted by the Glossographer Archidiaeonus Romanus and Cepola Neither were the Fathers of the Nicene councel of other opinion who thus decreed Let auncient customes stand in strength Whereto also agreeth that old verse of Ennius Moribus antiquis res stat Romana virisque Customes and men of oldest sort The Romane state do best support which is cited by Saint Austin and esteemed by Cicero both for breuitie and truth as an oracle To the same sense Periander of Corinth said that old lawes and new meates were fittest for vse which saying Phauorinus in Gellius did in this manner a little vary Liue after the passed manner speake after the present Hereto also pertaineth that edict of the censors mentioned by Suetonius Aul. Gellius Those things which are beside the custome and fashion of our Elders are neither pleasing nor to be adiudged right Of this point I shall haue occasion more particularlie hereafter to write The third meanes whereby the people may loose their authoritie is by way of conquest For howsoeuer Saint Augustine and after him Alciate doe disallowe ambition of enlarging Empire and tearme warres vpon this cause great theeueries Whereupon Lucane and his vncle Seneca called Alexander the Great a great robber of the world Yet there is no doubte but the sentence of victorie especiallie if the war was vndertakeÌ„ vpon good cause as the conqueror being made his own arbitrator wil hardlie acknowledge the contrarie is a iust title of acquisition reducing the vanquished their priuileges liberties and whole estate vnder the discretion of him that is victorious Caesar sayth He geueth all that denieth right which sentence is approoued by Couaruuias affirming that the victor maketh all which his sword touâ—heth to be his owne So sayth Baldus that he doth his pleasure vpon the vanquished and againe Caesar in the speech of Ariouistus it is the law of armes that the victorious should commaÌ„d those whom they haue subdued euen as they please Clemens Alexandrinus saith the goods of enemies are taken away by right of warre Isocrates hath written that the Lacedaemonians did by title of victorie in this sort maintaine their right We hold this land giuen by the posteritie of Hercules confirmed by the Oracle of Delphos the inhabitantes thereof being ouercome by warre Which was not much vnlike that which Iephte captaine of Israell expostulated with the Ammonites Are not those things thine which Chamos thy God hath possessed but whatsoeuer the Lord our God hath conquered pertaineth vnto vs. Yea God doth expressely giue to the people of Israel the cities which they should subdue some into ful possession others into seruitude subiection by which title Iacob also had giuen to Ioseph his partage among his brethreÌ„ euen the land which he had taken froÌ„ the Amorites with his sword and with his bow It was vsuall to the Romans and as Appian saith iust to retaine principall or direct dominion in al thinges which they brought vnder the sway of their sworde Brissonius hath collected certaine examples of the forme of yeelding vnto the Romans whereby al prophane sacred al humane and diuine matters were submitted vnto them Seeing therefore that the people may so many wayes loose both their power and their right in affaires of state is not your ignorance aduenturous so generallie to affirme that if no one forme of gouerment bee naturall there is no doubt but the people haue power both to alter and limit the same as they please Can no lawe no custome no conquest restraine them Your pen doth range and your iudgement rage beyond al compasse and course of reason You should haue said that there is no doubt but if by al or any of these meanes the right both of succession and gouernment be setled in one familie according to propinquitie and prioritie of bloud the people may neither take away nor varie the same and if they doe they commit iniustice they violate the law of nations whereby they expose themselues not onlie to the infamie and hate of al men but to the reuenge of those who wil attempt vppon them