Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
Centuries This Assembly by Centuries as it was more Ancient than that by Tribes so it was more truly popular because all the Nobility as well as the Commons had Voices in it The Assembly by Tribes was pretended at first only to elect Tribunes of the People and other inferiour Magistrates to determine of lesser Crimes that were not Capital but only finable and to decree that Peace should be made but they did not meddle with denouncing War to be made for that high Point did belong only to the Assembly of the Centuries and so also did the judging of Treason and other Capital Crimes The Difference between the Assembly of the Tribes and of the Centuries is very material for though it be commonly thought that either of these two Assemblies were esteemed to be the People yet in Reality it was not so for the Assembly of the Centuries only could be said to be the People because all the Nobility were included in it as well as the Commons whereas they were excluded out of the Assembly of the Tribes and yet in Effect the Assembly of the Centuries was but as the Assembly of the Lords or Nobles only because the lesser and richer part of the People had the Sovereignty as the Assembly of the Tribes was but the Commons only In maintenance of the popular Government of Rome Bodin objects that there could be no regal Power in the two Consuls who could neither make Law nor Peace nor War The Answer is though there were two Consuls yet but one of them had the Regality for they governed by Turns one Consul one Moneth and the other Consul another Moneth or the first one day and the second another day That the Consuls could make no Laws is false it is plain by Livy that they had the Power to make Laws or War and did execute that Power though they were often hindered by the Tribunes of the People not for that the Power of making Laws or War was ever taken away from the Consuls or communicated to the Tribunes but onely the Exercise of the Consular Power was suspended by a seeming humble way of intercession of the Tribunes The Consuls by their first Institution had a lawful Right to do those things which yet they would not do by reason of the shortness of their Reigns but chose rather to countenance their actions with the title of a Decree of the Senate who were their private Councel yea and sometimes with the Decree of the Assembly of the Centuries who were their Publick Counsel for both the Assembling of the Senate and of the Centuries was at the Pleasure of the Consuls and nothing was to be propounded in either of them but at the Will of the Consuls which argues a Sovereignty in them over the Senate and Centuries the Senate of Rome was like the House of Lords the Assembly of the Tribes resembled the House of Commons but the Assembling of the Centuries was a Body composed of Lords and Commons united to Vote together The Tribunes of the People bore all the Sway among the Tribes they called them together when they pleased without any Order whereas the Centuries were never Assembled without Ceremony and Religious observation of the Birds by the Augurs and by the Approbation of the Senate and therefore were said to be auspicata and ex authoritate Patrum These things considered it appears that the Assembly of the Centuries was the only legitimate and great Meeting of the People of Rome as for any Assembling or Electing of any Trustees or Representors of the People of Rome in nature of the modern Parliaments it was not in Use or ever known in Rome Above two hundred and twenty years after the expulsion of Kings a sullen humour took the Commons of Rome that they would needs depart the City to Ianiculum on the other side of Tybur they would not be brought back into the City until a Law was made That a Plebiscitum or a Decree of the Commons might be observed for a Law this Law was made by the Dictator Hortensius to quiet the Sedition by giving a part of the Legislative Power to the Commons in such inferiour matters only as by Toleration and Usurpation had been practised by the Commons I find not that they desired an Enlargement of the Points which were the Object of their Power but of the Persons or Nobility that should be subject to their Decrees the great Power of making War of creating the greater Magistrates of judging in Capital Crimes remained in the Consuls with the Senate and Assembly of the Centuries For further manifestation of the broken and distracted Government of Rome it is fit to consider the original Power of the Consuls and of the Tribunes of the Commons who are ordinarily called the Tribunes of the People First it is undeniable that upon the expulsion of Kings Kingly power was not taken away but only made Annual and changeable between two Consuls who in their Turns and by course had the Sovereignty and all Regal power this appears plainly in Livy who tells us that Valerius Publicola being Consul he himself alone ordained a Law and then assembled a general Session Turemillus Arsa inveighed and complained against the Consul's Government as being so absolute and in Name only less odious than that of Kings but in Fact more cruel for instead of one Lord the City had received twain having Authority beyond all Measure unlimited and infinite Sextius and Licinus complain that there would never be any indifferent Course so long as the Nobles kept the Sovereign Place of Command and the Sword to strike whiles the poor Commons have only the Buckler their Conclusion was that it remains that the Commons bear the Office of Consuls too for that were a Fortress of their Liberty from that day forward shall the Commons be Partakers of those things wherein the Nobles now surpass them namely Sovereign Rule and Authority The Law of the twelve Tables affirms Regio imperio duo sunto iique Consules appellantor Let two have regal Power and let them be called Consuls also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls These are proofs sufficient to shew the Royal Power of the Consuls About sixteen years after the first Creation of Consuls the Commons finding themselves much run into Debt by wasting their Estates in following the Wars and so becoming as they thought oppressed by Usury and cast into Prison by the Judgment and Sentence of the Consuls they grievously complained of Usury and of the Power of the Consuls and by Sedition prevailed and obtained Leave to choose among themselves Magistrates called Tribunes of the People who by their Intercession might preserve the Commons from being oppressed and suffering Wrong from the Consuls and it was further agreed that the Persons of those Tribunes should be sacred and not to be touched by any By means of this Immunity of
by a Humane Law as Grotius teacheth then the Moral Law depends upon the Will of man There could be no Law against Adultery or Theft if Women and all things were common Mr. Selden saith that the Law of Nature or of God nec vetuit nec jubebat sed permisit utrumque tam nempe rerum communionem quà m privatum Dominium And yet for Propriety which he terms primaeva rerum Dominia he teacheth that Adam received it from God à Numine acceperat And for Community he saith We meet with evident footsteps of the Community of things in that donation of God by which Noah and his three Sons are made Domini pro indiviso rerum omnium Thus he makes the private Dominion of Adam as well as the common Dominion of Noah and his Sons to be both by the Will of God Nor doth he shew how Noah or his Sons or their Posterity had any Authority to alter the Law of Community which was given them by God In distributing Territories Mr. Selden saith the Consent as it were of Mankind passing their promise which should also bind their Posterity did intervene so that men departed from their common Right of Communion of those things which were so distributed to particular Lords or Masters This Distribution by Consent of Mankind we must take upon Credit for there is not the least proof offered for it out of Antiquity How the Consent of Mankind could bind Posterity when all things were common is a Point not so evident where Children take nothing by Gift or by Descent from their Parents but have an equal and common Interest with them there is no reason in such cases that the Acts of the Fathers should bind the Sons I find no Cause why Mr. Selden should call Community a pristine Right since he makes it but to begin in Noah and to end in Noah's Children or Grand-children at the most for he confesseth the Earth à Noachidis seculis aliquot post diluvium esse divisam That ancient Tradition which by Mr. Seldens acknowledgment hath obtained Reputation every where seems most reasonable in that it tells us that Noah himself as Lord of all was Author of the distribution of the World and of private Dominion and that by the appointment of an Oracle from God he did confirm this Distribution by his last Will and Testament which at his Death he left in the hands of his eldest Son Sem and also warned all his Sons that none of them should invade any of their Brothers Dominions or injure one another because from thence Discord and Civil War would necessarily follow Many conclusions in Grotius his Book de Iure Belli Pacis are built upon the foundation of these two Principles 1. The first is That Communis rerum usus naturalis fuit 2. The second is that Dominium quale nune in usu est voluntas humana introduxit Upon these two Propositions of natural Community and voluntary Propriety depend divers Dangerous and Seditious conclusions which are dispersed in several places In the fourth Chapter of the first Book the Title of which Chapter is Of the War of Subjects against Superiours Grotius handleth the Question Whether the Law of not resisting Superiours do bind us in most grievous and most certain danger And his Determination is that this Law of not resisting Superiours seems to depend upon the Will of those men who at first joyned themselves in a Civil Society from whom the Right of Government doth come to them that govern if those had been at first asked if their Will were to impose this burthen upon all that they should choose rather to dye than in any case by Arms to repell the force of Superiours I know not whether they would answer that it was their Will unless perhaps with this addition if Resistance cannot be made but with the great disturbance of the Commonwealth and destruction of many Innocents Here we have his Resolution that in great and certain danger men may resist their Governours if it may be without disturbance of the Commonwealth if you would know who should be Judge of the greatness and certainty of the Danger or how we may know it Grotius hath not one word of it so that for ought appears to the contrary his Mind may be that every private man may be Judge of the Danger for other Judge he appoints none it had been a foul Fault in so desperate a Piece of Service as the resisting of Superiors to have concealed the lawful Means by which we may judge of the Greatness or Certainty of publick Danger before we lift up our hands against Authority considering how prone most of us are to censure and mistake those things for great and certain Dangers which in Truth many Times are no dangers at all or at the most but very small ones and so flatter our selves that by resisting our Superiours we may do our Country laudible Service without Disturbance of the Commonwealth since the Effects of Sedition cannot be certainly judged of but by the Events only Grotius proceeds to answer an Objection against this Doctrine of resisting Superiors If saith he any man shall say that this rigid Doctrine of dying rather then resisting any Injuries of Superiours is no humane but a divine Law It is to be noted that men at first not by any Precept of God but of their own Accord led by Experience of the Infirmities of separated Families against Violence did meet together in Civil Society from whence Civil Power took beginning which therefore St. Peter calls an humane Ordinance although elsewhere it be called a divine Ordinance because God approveth the wholsome Institutions of men God in Approving a humane Law is to be thought to approve it as humane and in a humane Manner And again in another place he goeth further and teacheth us that if the Question happen to be concerning the Primitive Will of the People it will not be amiss for the People that now are and which are accounted the same with them that were long ago to express their Meaning in this matter which is to be followed unless it cetainly appear that the People long ago willed otherwise lib. 2. c. 2. For fuller Explication of his Judgment about resisting Superiours he concludes thus The greater the thing is which is to be preserved the greater is the Equity which reacheth forth an Exception against the words of the Law yet I dare not saith Grotius without Difference condemn either simple men or a lesser part of the People who in the last Refuge of Necessity do so use this Equity as that in the mean time they do not forsake the Respect of the common Good Another Doctrine of Grotius is that the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth that
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke