amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14. Hen. 3. which is nothing but a Letter of the King to Gerard Son of Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Justices only were received always 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 Elenor 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 until 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 especial 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 King 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 Ed. 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 Ed. 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 Ed. 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 only 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 James 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 Leonards 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
for it was almost forty years after the Rejection of Kings before an Assembly of Tribes were thought on or spoken of for it was the Assembly of the People by Centuries that agreed to the Expulsion of Kings and creating of Consuls in their Room also the Famous Laws of the twelve Tables were ratified by the Assembly of the 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 Month and the other Consul another Month 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 only 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 Council yea and sometimes with the Decree of the Assembly of the Centuries who were their Publick Council 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 Janiculum 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 Turentillus Arsa inveyed 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 whilst 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 Tribes affirm Regio imperio duo sunto iique Consules appellantur 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
the said Statutes should be duly kept 2. That the Sheriffs shall deliver Precepts to Mayors and Bailiffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of Knights Citizens and Burgesses 4. The Penalty of 40 l. for Mayors or Bailiffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Freeholders but all others whosoever were present at the County-Court had Voices in such Elections See the Stat. 7 Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King James in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to give his best Advice to his Sovereign when he is thought worthy to have his Councel asked 13 Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the King's Honour the Salvation of the Realm and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence have warily avoided to give Advice 13 Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and the Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of which they had no Cognisance de queux ils n' ont pas de Cognisance 21 Edw. 3. Justice Thorp declaring to the Peers and Commons that the French War began by their Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to have their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6 Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two days Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7 Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooveful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a-days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates or which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium Finis Parliamentor ' as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate togther and that it appears in Edward the Third's time the Lords and Commons sate together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be endured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consultations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a setled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
of many Officers were left to the meer pleasure of Kings The punitive part of the Law which gives all the Vigour and Binding Part to the Law we find committed by the Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners and Bayliffs for concealing of Felonies shall make grievous Fines at the Kings Pleasure Chap. 13. Ordains That such as be found culpable of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoner that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he that shall take Reward for deliverance of such shall be at the Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall make Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they take shall be Grievously punished at the King's pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to treat upon Debates between Vs and certain Great Men it was accorded that in our next Parliament Provision shall be made by Vs and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Vnderwoods and Bushes in High-ways Murder be done the Lord shall make Fine at the Kings Pleasure 28 Edw. 1. If a Gold-Smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by a Ransome at the Kings Pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the Gift of any Subsidy to which the King answers He would confer with the Lords and do what should be best according to their Advice and the last day of Parliament He gave this Answer That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of their Petitions or Knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any ways change the Good Customs and Usages made and used of ancient Times 5 Hen. 4. c. 6. Whereas one Savage did beat and maim one Richard Chedder Esquire Menial Servant to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTEST AS PRINCIPIS NON EST INCLVS A LEGIBVS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. We read of a Restitution in Blood and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regality to grant or deny such of their Petitions as pleaseth himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King our Sovereign Lord calling to his Remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of Him and the Land against every Rebellion Power Might reared against him and with him to enter and abide in Service in Battel if Case so require and that for the same Service what Fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by His Commandment within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against his Rebels and Enemies for the Subduing and Repressing of them and their malicious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Common-wealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He wished not the making of many Laws since the more we make the less liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edward Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Jo. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of Commons which being received by the King part He received part He put out and part He ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been always acknowledged for Laws and Statutes We have
to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
born slaves by Nature which quite contradicts the Position that all men are born equal and free and therefore Aristotle thought it fitter to allow all imaginable Forms of Government that so he might not disparage any one City than to propound such a Form as might condemn and destroy all the rest Though Aristotle allow so many several Forms of corrupted Governments yet he insists upon no one Form of all those that he can define or describe in such sort that he is able to say that any one City in all Greece was governed just according to such a Form his diligence is only to make as many Forms as the giddy or inconstant Humour of a City could happen upon he freely gives the People Liberty to invent as many Kinds of Government as they please provided he may have Liberty to find fault with every one of them it proved an easier Work for him to find Fault with every Form than to tell how to amend any one of them he found so many Imperfections in all sorts of Commonweals that he could not hold from reproving them before ever he tells us what a Commonweal is or how many sorts there are and to this Purpose he spends his whole second Book in setting out and correcting the chief Commonweals of Greece and among others the Lacedemonian the Cretan and Carthaginian Commonweals which three he esteems to be much alike and better than any other yet he spares not to lay open their imperfections and doth the like to the Athenian wherein he breaks the Rule of Method by delivering the Faults of Commonweals before he teach us what a Commonweal is for in his first Book he speaks only of the Parts of which a City or a Commonweal is made but tells us not what a City or Commonweal is until he come to his Third Book and there in handling the sorts of Government he observes no Method at all but in a disorderly way flies backward and forward from one sort to another and howsoever there may be observed in him many Rules of Policy touching Government in general yet without doubt where he comes to discourse of particular Forms he is full of Contradiction or Confusion or both it is true he is brief and difficult the best Right a man can do him is to confess he understands him not yet a diligent Reader may readily discern so many Irregularities and Breaches in Aristotle's Books of Politicks as tend to such Distraction or Confusion that none of our new Politicians can make advantage of his Principles for the Confirmation of an original Power by Nature in the People which is the only Theme now in Fashion For Aristotle's Discourse is of such Commonweals as were founded by particular Persons as the Chalcedonian by Phaleas the Milesian by Hippodamas the Lacedemonian by Lycurgus the Cretan by Minos the Athenian by Solon and the like but the natural Right of the People to found or elect their Kind of Government is not once disputed by him It seems the underived Majesty of the People was such a Metaphysical Piece of Speculation as our grand Philosopher was not acquainted with he speaks very contemptuously of the Multitude in several Places he affirms that the People are base or wicked Judges in their own Cases 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that many of them differ nothing from beasts 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and again he saith The Common People or Freemen are such as are neither Rich nor in Reputation for Virtue and it is not safe to commit to them great Governments for by reason of their Injustice and Vnskilfulness they would do much Injustice and commit many Errours and it is pleasanter to the multitude to live Disorderly than Soberly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If Aristotle had believed a Publick Interest to have been in the People to the enabling them to be their own carvers in point of Government he would never have entangled himself with such intricate and ambiguous Forms of Commonweals as himself cannot tell how to explain nor any of his Commentators how to understand or make Use of This one Benefit I have found by Reading Aristotle that his Books of Politicks serve for an admirable Commentary upon that Text of Scripture which saith In those days there was no King in Israel every man did that which was right in his own eyes For he grants a liberty in every City for any man or multitude of men either by Cunning or Force to set up what Government they please and he will allow some name or other of a Commonweal which in effect is to allow every man to do what he lists if he be able hence it is that by the Confession of Aristotle the first Commonweals in Greece after Kings were given over were made of those that waged War those several kinds of Commonweals were all summed up into the Government of an Army for it is saith Aristotle in their power who manage Arms to continue or not continue the Form of Government whereby the Estate is Governed which is nothing else but a Stratocratie or Military Government We cannot much blame Aristotle for the Incertainty and Contrariety in him about the sorts of Government if we consider him as a Heathen for it is not possible for the Wit of man to search out the first Grounds or Principles of Government which necessarily depend upon the original of Property except he know that at the Creation one man alone was made to whom the Dominion of all things was given and from whom all men derive their Title This Point can be learnt only from the Scriptures as for the imaginary Contract of People it is a Fancy not improbable only but impossible except a multitude of men at first had sprung out and were engendred of the Earth which Aristotle knows not whether he may believe or no If Justice which is to give every man his Due be the End of Government there must Necessarily be a Rule to know how any man at first came to have a Right to any thing to have it truly called his This is a Point Aristotle disputes not nor so much as ever dreamt of an original Contract among People he looked no farther in every City then to a Scambling among the Citizens whereby every one snatcht what he could get so that a violent Possession was the first and best Title that he knew The main Distinction of Aristotle touching perfect or Right Forms of Government from those that are imperfect or corrupt consists solely in this Point that where the profit of the governed is respected there is a right Government but where the Profit of the Governours is regarded there is a Corruption or Transgression of Government By this it is supposed by Aristole that there may be a Government only for the Benefit of the Governours this Supposition to be false may be proved from Aristotle himself I will Instance about the Point of Tyranny Tyranny saith Aristotle
Religion we find presently after the Building of the City by Romulus the next King Numa most devoutly established a Religion and began his Kingdom with the Service of the Gods he forbad the Romans to make any Images of God which Law lasted and was observed 170 Years there being in all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifex Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not belawful for any to consecrate either Houses Grounds Altars or any other things without the Determination of the People Domitius Aenobarbus another Tribune Enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the Common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or Admission from the Colledge Thus by a Committee of Seven Tribes taken out of Thirtyfive the Ancient Form of Religion was altered and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a Popular Estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or Chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War lib. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Janus shut after the end of the first Punick War but not so long as for one year but for some Months It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius to Augustus Caesar only for one Summer the Bowels of Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone foils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthage the Beginning of which War Sir Walter Raleigh proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kingly Power of the Consuls who as Livy saith had the same Royal Jurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensigns of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shews of Government the Popular which served only to raise Seditions and Discords within the Walls whilst the Regal atchieved the Conquests of Foreign Nations and Kingdoms Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still resort to the Creation of a Dictator who for the time was an Absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all
men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the Citizens of Rome who had been Conquerours of all Nations round about them could not endure of Warriers to become Quarriers and Day-labourers Whereas it is said that Tarquin was expelled for the Rape committed by his Son on Lucrece it is unjust to condemn the Father for the Crime of his Son it had been fit to have petitioned the Father for the Punishment of the Offender The Fact of young Tarquin cannot be excused yet without wrong to the Reputation of so chaste a Lady as Lucrece is reputed to be it may be said she had a greater Desire to be thought chaste than to be chaste she might have died untouched and unspotted in her Body if she had not been afraid to be slandered for Inchastity both Dionysius Halicarnasseus and Livie who both are her Friends so tell the Tale of her as if she had chosen rather to be a Whore than to be thought a Whore To say Truth we find no other Cause of the Expulsion of Tarquin than the Wantonness and Licentiousness of the People of Rome This is further to be considered in the Roman Government that all the time between their Kings and their Emperours there lasted a continued strife between the Nobility and Commons wherein by Degrees the Commons prevailed at last so to weaken the Authority of the Consuls and Senate that even the last sparks of Monarchy were in a manner extinguished and then instantly began the Civil War which lasted till the Regal Power was quickly brought home and setled in Monarchy So long as the Power of the Senate stood good for the Election of Consuls the Regal Power was preserved in them for the Senate had their first Institution from Monarchy It is worth the noting that in all those places that have seemed to be most popular that weak Degree of Government that hath been exercised among them hath been founded upon and been beholden unto Monarchical Principles both for the Power of assembling and manner of consulting for the entire and gross Body of any People is such an unweildy and diffused thing as is not capable of uniting or congregating or deliberating in an entire Lump but in broken Parts which at first were regulated by Monarchy Furthermore it is observable that Rome in her chief Popularity was oft beholden for her Preservation to the Monarchical Power of the Father over the Children by means of this Fatherly Power saith Bodin the Romans flourished in all Honour and Vertue and oftentimes was their Common-weal thereby delivered from most imminent Destruction when the Fathers drew out of the Consistory their Sons being Tribunes publishing Laws tending to Sedition Amongst others Cassius threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the Behoof of the People and after by his own private Judgment put him to Death the Magistrates Serjeants and People standing thereat astonied and not daring to withstand his Fatherly Authority although they would with all their Power have had that Law for Division of Lands which is sufficient Proof this Power of the Father not only to have been sacred and inviolable but also to have been lawful for him either by Right or Wrong to dispose of the Life and Death of his Children even contrary to the Will of the Magistrates and People It is generally believed that the Government of Rome after the Expulsion of Kings was popular Bodin endeavours to prove it but I am not satisfied with his Arguments and though it will be thought a Paradox yet I must maintain it was never truly popular First it is difficult to agree what a popular Government is Aristotle saith it is where Many or a Multitude do rule he doth not say where the People or the major part of the People or the Representors of the People govern Bodin affirms if all the People be interessed in the Government it is a Popular Estate Lib. 2. c. 1. but after in the same Chapter he resolves that it is a Popular Estate when all the People or the greater part thereof hath the Sovereignty and he puts the Case that if there be threescore thousand Citizens and forty thousand of them have the Sovereignty and twenty thousand be excluded it shall be called a popular Estate But I must tell him though fifty nine thousand nine hundred ninety nine of them govern yet it is no popular Estate for if but one man be excluded the same reason that excludes that one man may exclude many hundreds and many thousands yea and the major part it self if it be admitted that the People are or ever were free by Nature and not to be governed but by their own Consent it is most unjust to exclude any one man from his Right in Government and to suppose the People so unnatural as at the first to have all consented to give away their Right to a major part as if they had Liberty given them only to give away and not to use it themselves is not only improbable but impossible for the whole People is a thing so uncertain and changeable that it alters every moment so that it is necessary to ask of every Infant so soon as it is born its Consent to Government if you will ever have the Consent of the whole People Moreover if the Arbitrary Tryal by a Jury of Twelve men be a thing of that admirable Perfection and Justice as is commonly believed wherein the Negative Voice of every single Person is preserved so that the dissent of any of the Twelve frustrates the whole Judgment How much more ought the natural freedom of each man be preserved by allowing him his Negative Voice which is but a continuing him in that Estate wherein it is confessed Nature at first placed him Justice requires that no one Law should bind all except all consent to it there is nothing more violent and contrary to Nature than to allow a major part or any other greater part less than the whole to bind all the People The next difficulty to discovering what a Popular Estate is is to find out where the Supreme Power in the Roman Government rested it is Bodin's Opinion that in the Roman State the Government was in the Magistrates the Authority and Council in the Senate but the Sovereign Power and Majesty in the People Lib. 2. c. 1. So in his first Book his Doctrine is that the ancient Romans said Imperium in Magistratibus Authoritatem in Senatu Potestatem in plebe Majestatem in Populo jure esse dicebant These four words Command Authority Power and Majesty signifie ordinarily one and the same thing to wit the Sovereignty or supreme Power I cannot find that Bodin knows how to
other and is quite contrary to the indivisible nature of Sovereignty The Truth is the Consuls having but annual Sovereignty were glad for their own Safety and Ease in Matters of great Importance and Weight to call together sometimes the Senate who were their ordinary Council and many times the Centuries of the People who were their Council extraordinary that by their Advice they might countenance and strengthen such Actions as were full of Danger and Envy and thus the Consuls by weakening their Original Power brought the Government to Confusion Civil Dissension and utter Ruine so dangerous a thing it is to shew Favour to Common People who interpret all Graces and Favours for their Rights and just Liberties the Consuls following the Advice of the Senate or People did not take away their Right of Governing no more than Kings lose their Supremacy by taking Advice in Parliaments Not only the Consuls but also the Pretors and Censors two great Offices ordained only for the ease of the Consuls from whom an Appeal lay to the Consuls did in many things exercise an Arbitrary or Legislative power in the Absence of the Consuls they had no Laws to limit them for many Years after the Creation of Consuls ten men were sent into Greece to choose Laws and after the twelve Tables were confirmed whatsoever the Pretors who were but the Consuls Substitutes did command was called jus honorarium and they were wont at the Entrance into their Office to collect and hang up for Publick View a Form of Administration of Justice which they would observe and though the edictum Praetoris expired with the Pretors Office yet it was called Edictum perpetuum What Peace the Low-Countries have found since their Revolt is visible it is near about an hundred Years since they set up for themselves of all which time only twelve years they had a Truce with the Spaniard yet in the next year after the Truce was agreed upon the War of Juliers brake forth which engaged both Parties so that upon the matter they have lived in a continual War for almost an hundred years had it not been for the Aid of their Neighbours they had been long ago swallowed up when they were glad humbly to offer their new hatch'd Commonweal and themselves Vassals to the Queen of England after that the French King Henry the Third had refused to accept them as his Subjects That little Truce they had was almost as costly as a War they being forced to keep about thirty thousand Souldiers continually in Garrison Two things they say they first fought about Religion and Taxes and they have prevailed it seems in both for they have gotten all the Religions in Christendom and pay the greatest Taxes in the World they pay Tribute half in half for Food and most necessary things paying as much for Tribute as the price of the thing sold Excise is paid by all Retailers of Wine and other Commodities for each Tun of Beer six Shillings for each Cow for the Pail two Stivers every Week for Oxen Horses Sheep and other Beasts sold in the Market the twelfth part at least be they never so oft sold by the year to and fro the new Master still pays as much they pay five Stivers for every Bushel of their own Wheat which they use to grind in Publick Mills These are the Fruits of the Low-Country War It will be said that Venice is a Commonwealth that enjoys Peace She indeed of all other States hath enjoyed of late the greatest Peace but she owes it not to her kind of Government but to the natural Situation of the City having such a Bank in the Sea of near threescore Miles and such Marshes towards the Land as make her unapproachable by Land or Sea to these she is indebted for her Peace at home and what Peace she hath abroad she buys at a dear Rate and yet her Peace is little better than a continued War The City always is in such perpetual Fears that many besieged Cities are in more Security a Senator or Gentleman dares not converse with any Stranger in Venice shuns Acquaintance or dares not own it they are no better than Bandito's to all humane Society Nay no People in the World live in such Jealousie one of another hence are their intricate Solemnities or rather Lotteries in Election of their Magistrates which in any other Place would be ridiculous and useless The Senators or Gentlemen are not only jealous of the Common People whom they keep disarmed but of one another they dare not trust any of their own Citizens to be a Leader of their Army but are forced to hire and entertain Foreign Princes for their Generals excepting their Citizens from their Wars and hiring others in their Places it cannot be said that People live in Peace which are in such miserable Fears continually The Venetians at first were subject to the Roman Emperour and for fear of the Invasion of the Hunnes forsook Padua and other Places in Italy and retired with all their Substance to those Islands where now Venice stands I do not read they had any Leave to desert the defence of their Prince and Country where they had got their Wealth much less to set up a Government of their own it was no better than a Rebellion or Revolting from the Roman Empire At first they lived under a kind of Oligarchy for several Islands had each a Tribune who all met and governed in common but the dangerous Seditions of their Tribunes put a necessity upon them to choose a Duke for Life who for many hundreds of years had an Absolute Power under whose Government Venice flourished most and got great Victories and rich Possessions But by insensible degrees the Great Council of the Gentlemen have for many years been lessening the Power of their Dukes and have at last quite taken it away It is a strange Errour for any man to believe that the Government of Venice hath been always the same that it is now he that reads but the History of Venice may find for a long time a Sovereign Power in their Dukes and that for these last two hundred years since the diminishing of that Power there have been no great Victories and Conquests obtained by that Estate That which exceeds admiration is that Contarene hath the confidence to affirm the present Government of Venice to be a mixed Form of Monarchy Democraty and Aristocraty For whereas he makes the Duke to have the Person and Shew of a King he after confesseth that the Duke can do nothing at all alone and being joyned with other Magistrates he hath no more Authority than any of them also the Power of the Magistrates is so small that no one of them how great soever he be can determine of any thing of moment without the allowance of the Council So that this Duke is but a man dressed up in Purple a King only in Pomp and Ornament in Power but a Senator within the City
they are necessitated to relinquish that Supreme Power which they think they exercise and to delegate it to a few There are two Parts of the Supreme Power the Legislative and the Executive neither of these can a great Assembly truly act If a new Law be to be made it may in the General receive the Proposal of it from one or more of the General Assembly but the forming penning or framing it into a Law is committed to a few because a great number of Persons cannot without tedious and dilatory Debates examine the Benefits and Mischiefs of a Law Thus in the very first Beginning the Intention of a General Assembly is frustrated then after a Law is penned or framed when it comes to be questioned whether it shall pass or nay though it be Voted in a full Assembly yet by the Rules of the Assembly they are all so tied up and barred from a free and full Debate that when any man hath given the Reasons of his Opinion if those Reasons be argued against he is not permitted to reply in Justification or Explanation of them but when he hath once spoken he must be heard no more which is a main Denial of that Freedom of Debate for which the great Assembly is alledged to be ordained in the high Point of Legislative Power The same may be said touching the Executive Power if a cause be brought before a great Assembly the first thing done is to refer or commit it to some few of the Assembly who are trusted with the examining the Proofs and Witnesses and to make Report to the General Assembly who upon the Report proceed to give their Judgments without any publick hearing or interrogating the Witnesses upon whose Testimonies diligently examined every man that will pass a conscientious Judgment is to rely Thus the Legislative and Executive Power are never truly practised in a great Assembly the true Reason whereof is if Freedom be given to Debate never any thing could be agreed upon without endless Disputes meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governours and the governed the one cannot be without the other mutuò se ponunt auferunt where a Command or Law proceeds from a major part there those individual Persons that concurred in the Vote are the Governours because the Law is only their Will in particular the Power of a major Part being a contingent or casual thing expires in the very Act it self of Voting which Power of a major Part is grounded upon a Supposition that they are the stronger Part when the Vote is past these Votes which are the major Part return again and are incorporated into the whole Assembly and are buried as it were in that Lump and no otherwise considered the Act or Law ordained by such a Vote loseth the Makers of it before it comes to be obeyed for when it comes to be put in Execution it becomes the Will of those who enjoyn it and force Obedience to it not by Virtue of any Power derived from the Makers of the Law No man can say that during the Reign of the late Queen Elizabeth that King Henry the Eighth or Edward the Sixth did govern although that many of the Laws that were made in those two former Princes times were observed and executed under her Government but those Laws though made by her Predecessours yet became the Laws of her present Government who willed and commanded the Execution of them and had the same Power to correct interpret or mitigate them which the first Makers of them had every Law must always have some present known Person in Being whose Will it must be to make it a Law for the Present this cannot be said of the major Part of any Assembly because that major part instantly ceaseth as soon as ever it hath voted an infallible Argument whereof is this that the same major part after the Vote given hath no Power to correct alter or mitigate it or to Cause it to be put in Execution so that he that shall act or cause that Law to be executed makes himself the Commander or willer of it which was originally the Will of others It is said by Mr. Hobs in his Leviathan page 141. Nothing is Law where the Legislator cannot be known for there must be manifest Signs that it proceedeth from the Will of the Sovereign there is requisite not only a Declaration of the Law but also sufficient Signs of the Author and the Authority That Senate or great Council wherein it is conceived the Supreme or Legislative Power doth rest consists of those Persons who are actually Subjects at the very same time wherein they exercise their Legislative Power and at the same instant may be guilty of breaking one Law whilst they are making another Law for it is not the whole and entire Will of every particular Person in the Assembly but that part only of his Will which accidentally falls out to concur with the Will of the greater part So that the Sharers of the Legislative Power have each of them perhaps not a hundredth part of the Legislative Power which in it self is indivisible and that not in Act but in Possibility only in one particular Point for that Moment whilst they give their Vote To close this Point which may seem strange and new to some I will produce the Judgment of Bodin in his sixth Book of a Commonweal and the fourth Chapter his words are The chief Point of a Commonweal which is the Right of Sovereignty cannot be nor insist to speak properly but in Monarchy for none can be Sovereign in a Commonweal but one alone if they be two or three or more no one is Sovereign for that no one of them can give or take a Law from his Companion and although we imagine a Body of many Lords or of a whole People to hold the Sovereignty yet hath it no true Ground nor Support if there be not a Head with absolute Power to unite them together which a simple Magistrate without Sovereign Authority cannot do And if it chance that the Lords or Tribes of the People be divided as it often falls out then must they fall to Arms one against another and although the greatest part be of one Opinion yet may it so happen as the lesser part having many Legions and making a Head may oppose it self against the greater Number and get the Victory We see the Difficulties which are and always have been in popular Estates whereas they hold contrary Parts and for divers Magistrates some demand Peace others War some will have this Law others that some will have one Commander others another some will treat a League with the King of France others with the King of Spain corrupted or drawn some one Way some another making open War as hath been
also to study always to please their Parents But since this Duty is not by force of any moral faculty as those former are but only of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing is void being made by any Owner whatsoever against the rules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the power of a Parent doth so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith The Son is in all things Free and of his own Authority always that Duty remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws only which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth That the power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith That the power over the Son or Daughter to dissolve Vows was not perpetual but did endure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three ways Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Vsufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdom That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title only make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth only put the Conquerour in possession of his old Right but not create a new The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdom which gives a Form to the Kingdom but a Continuation of the old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right only for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he hath a Title it is an unjust War that takes the Kingdom from him If he hath no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule That where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the Judgment of Grotius But if it be admitted that he that attempts to conquer hath a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Vbi Judicia deficiunt incipit Bellum Lib. 2. cap. 1. And thus upon the matter I cannot find in Grotius's Book De Jure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est quâ se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2.
cap. 5. If Subjection be the Gift of the People how can Supreme Power pleno Jure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of life as that because they can find no other ways to defend themselves or because they are so pressed with poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War only which reduceth a People to such terms of extremity as compels them to an absolute Abrenunciation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Soveraignty and not the free Gift of the People who cannot otherwise chuse but give away that Power which they cannot keep Thus upon the reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Just War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Justice Justitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full Right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith That all Kings are not made by the People which may be sufficiently understood by the Example of a Father of a Family receiving Strangers under the Law of Obedience In both these passages we have a close and curt acknowledgment That a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle That Dominion came in by the Will of the People and so consequently to overthrow his Vsufructuary Kings of whom I am next to speak Grotius saith That the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And That men of their own accord came together into Civil Society from whence springs Civil Power and the People may chuse what Form of Government they please Upon these Suppositions he concludes That Kings elected by the People have but an Vsufructuary Right that is a Right to take the profit or fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Vsufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Vsufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Vsufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the part and Duty of a King to govern and he hath a Right so to do and to that end Supreme Power is given unto him the taking of the profit or making use of the Patrimony of the Crown is but as a means only to enable him to perform that work of Government Besides Grotius will not only have an elected King but also his lawful Successors to have but an Vsufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no power to alienate it for he supposeth the primary VVill of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delatâ sunt concedo non esse praesumendum eam fuisse Populi voluntatem aut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People For he saith The Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Vnum quiddam and in it self indivisible ye he bsaith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to
I find our Author altogether insists upon a rational way of justifying his opinion No man I think will deny but that Aristotle was sufficiently curious in searching out the several forms of Commonwealths and Kingdoms yet I do not find that he ever so much as dreamed of either a limited or mixed Monarchy Several other sorts of Monarchies he reckons up in the Third Book of his Politicks he spends three whole Chapters together upon the several kinds of Monarchy First in his fourteenth Chapter he mentions four kinds of Monarchy The Laconick or Lacedemonian The Barbarick The Aesymnetical The Heroick The Laconick or Lacedemonian King saith he had only Supreme Power when he was out of the bounds of the Lacedemonian Territories then he had absolute Power his Kingdom was like to a perpetual Lord General of an Army The Barbarick King saith Aristotle had a Power very near to Tyranny yet they were lawful and Paternal because the Barbarians are of a more servile nature than the Grecians and the Asiaticks than the Europeans they do willingly without repining live under a Masterly Government yet their Government is stable and safe because they are Paternal and lawful Kingdoms and their Guards are Royal and not Tyrannical for Kings are guarded by their own Subjects and Tyrants are guarded by Strangers The Aesymnetical King saith Aristotle in old time in Greece was an Elective Tyrant and differed only from the Barbarian Kings in that he was Elective and not Paternal these sorts of Kings because they were Tyrannical were Masterly but because they were over such as voluntarily Elected them they were Regal The Heroick were those saith Aristotle which flourished in the Heroical times to whom the People did willingly obey and they were Paternal and lawful because these Kings did deserve well of the multitude either by teaching them Arts or by Warring for them or by gathering them together when they were dispersed or by dividing Lands amongst them these Kings had supreme Power in War in Sacrifices in Judicature These four sorts of Monarchy hath Aristotle thus distinguished and after sums them up together and concludes his Chapter as if he had forgot himself and reckons up a fifth kind of Monarchy which is saith he When one alone hath Supreme power of all the rest for as there is a domestical Kingdom of one House so the Kingdom of a City or of one or many Nations is a Family These are all the sorts of Monarchy that Aristotle hath found out and he hath strained hard to make them so many first for his Lacedemonian King himself confesseth that he was but a kind of Military Commander in War and so in effect no more a King than all Generals of Armies And yet this No-king of his was not limited by any Law nor mixed with any Companions of his Government when he was in the Wars out of the Confines of Lacedaemon he was as Aristotle stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of full and absolute Command no Law no Companion to govern his Army but his own will Next for Aristotle's Aesymnetical King it appears he was out of date in Aristotle's time for he saith he was amongst the ancient Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristotle might well have spared the naming him if he had not wanted other sorts for the honour of his own Nation for he that but now told us the Barbarians were of a more servile nature than the Grecians comes here and tells us That these old Greek Kings were Elective Tyrants The Barbarians did but suffer Tyrants in shew but the old Grecians chose Tyrants indeed which then must we think were the greater slaves the Greeks or the Barbarians Now if these sorts of Kings were Tyrants we cannot suppose they were limited either by Law or joyned with Companions Indeed Aristotle saith some of these Tyrants were limited to certain times and actions for they had not all their Power for term of life nor could meddle but in certain businesses yet during the time they were Tyrants and in the actions whereto they were limited they had absolute Power to do what they list according to their own will or else they could not have been said to be Tyrants As for Aristotle's Heroick King he gives the like note upon him that he did upon the Aesymnet that he was in old time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Heroick times The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms was only the means by which the first Kings obtained their Kingdoms and not the manner of Government for in that they were as absolute as other Kings were without either limitation by Law or mixture of Companions Lastly as for Aristotle's Barbarick sort of Kings since he reckoned all the World Barbarians except the Grecians his Barbarick King must extend to all other sorts of Kings in the World besides those of Greece and so may go under Aristotle's fifth sort of Kings which in general comprehends all other sorts and is no special form of Monarchy Thus upon a true account it is evident that the five several sorts of Kings mentioned by Aristotle are at the most but different and accidental means of the first obtaining or holding of Monarchies and not real or essential differences of the manner of Government which was always absolute without either limitation or mixture I may be thought perhaps to mistake or wrong Aristotle in questioning his diversities of Kings but it seems Aristotle himself was partly of the same mind for in the very next Chapter when he had better considered of the point he confessed That to speak the truth there were almost but two sorts of Monarchies worth the considering that is his first or Laconick sort and his fifth or last sort where one alone hath supreme Power over all the rest thus he hath brought his five sorts to two Now for the first of these two his Lacedemonian King he hath confessed before that he was no more than a Generalissimo of an Army and so upon the matter no King at all and then there remains only his last sort of Kings where one alone hath the supreme Power And this in substance is the final resolution of Aristotle himself for in his sixteenth Chapter where he delivers his last thoughts touching the kinds of Monarchy he first dischargeth his Laconick King from being any sort of Monarchy and then gives us two exact rules about Monarchy and both these are point blank against limited and mixed Monarchy therefore I shall propose them to be considered of as concluding all Monarchy to be absolute and arbitrary 1. The one Rule is That he that is said to be a King according to Law is no sort of Government or Kingdom at all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. The second Rule is That a true King is he that ruled all according to his own will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This latter frees a Monarch from the mixture of partners or sharers in
Most of the Civilest Nations of the Earth labour to fetch their Original from some One of the Sons or Nephews of Noah which were scatterd abroad after the Confusion of Babel In this Dispersion we must certainly find the Establishment of Regal Power throughout the Kingdoms of the World It is a common Opinion that at the Confusion of Tongues there were 72 distinct Nations erected all which were not Confused Multitudes without Heads or Governors and at Liberty to chose what Governors or Government they pleased but they were distinct Families which had Fathers for Rulers over them whereby it appears that even in the Confusion God was careful to preserve the Fatherly Authority by distributing the diversity of Languages according to the diversity of Families for so plainly it appears by the Text First after the Enumeration of the Sons of Japhet the Conclusion is By these were the Isles of the Gentiles divided in their Lands every one after his Tongue after their Families in their Nations so it is said These are the Sons of Ham after their Families after their Tongues in their Countreys and in their Nations The like we read These are the Sons of Shem after their Families after their Tongues in their Lands after their Nations These are the Families of the Sons of Noah after their Generations in their Nations and by these were these Nations divided in the Earth after the Flood In this Division of the World some are of Opinion that Noah used Lots for the distribution of it others affirm he sayled about the Mediterranean Sea in Ten years and as he went about appointed to each Son his part and so made the Division of the then known World into Asia Africa and Europe according to the number of his Sons the Limits of which Three Parts are all found in that Midland Sea 6 But howsoever the manner of this Division be uncertain yet it is most certain the Division it self was by Families from Noah and his Children over which the Parents were Heads and Princes Amongst these was Nimrod who no doubt as Sir Walter Raleigh affirms was by good Right Lord or King over his Family yet against Right did he enlarge his Empire by seizing violently on the Rights of other Lords of Families And in this sense he may be said to be the Author and first Founder of Monarchy And all those that do attribute unto him the Original Regal Power do hold he got it by Tyrany or Usurpation and not by any due Election of the People or Multitude or by any Faction with them As this Patriarchal Power continued in Abraham Isaac and Jacob even until the Egyptian Bondage so we find it amongst the Sons of Ismael and Esau It is said These are the Sons of Ismael and these are their Names by their Castles and Towns Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their Families and their Places by their Nations 7 Some perhaps may think that these Princes and Dukes of Families were but some petty Lords under some greater Kings because the number of them are so many that their particular Territories could be but small and not worthy the Title of Kingdoms but they must consider that at first Kings had no such large Dominions as they have now adays we find in the time of Abraham which was about 300 years after the Flood that in a little corner of Asia 9 Kings at once met in Battail most of which were but Kings of Cities apiece with the adjacent Territories as of Sodom Gomorrha Shinar c. In the same Chapter is mention of Melchisedeck King of Salem which was but the City of Jerusalem And in the Catalogue of the Kings of Edom the Names of each King's City is recorded as the only Mark to distinguish their Dominions In the Land of Canaan which was but a small circuit Joshua destroyed thirty one Kings and about the same time Adonibeseck had 70 Kings whose hands and toes he had cut off and made them feed under his Table A few years after this 32 Kings came to Benhadad King of Syria and about 70 Kings of Greece went to the Wars of Troy Caesar found more Kings in France than there be now Princes there and at his sailing over into this Island he found four Kings in our County of Kent These heaps of Kings in each Nation are an Argument their Territories were but small and strongly confirms our Assertion that Erection of Kingdoms came at first only by Distinction of Families By manifest Footsteps we may trace this Paternal Government unto the Israelites coming into Egypt where the Exercise of Supream Partriarchal Jurisdiction was intermitted because they were in subjection to a stronger Prince After the Return of these Israelites out of Bondage God out of a special Care of them chose Moses and Joshua successively to govern as Princes in the place and stead of the Supream Fathers and after them likewise for a time he raised up Judges to defend his People in time of Peril But when God gave the Israelites Kings he reestablished the Antient and Prime Right of Lineal Succession to Paternal Government And whensoever he made choice of any special Person to be King he intended that the Issue also should have benefit thereof as being comprehended sufficiently in the Person of the Father although the Father only was named in the Graunt 8. It may seem absurd to maintain that Kings now are the Fathers of their People since Experience shews the contrary It is true all Kings be not the Natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the Natural Parents of the whole People and in their Right succeed to the Exercise of Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers And therefore we find that God told Cain of his Brother Abel His Desires shall be subject unto thee and thou shalt rule over him Accordingly when Jacob bought his Brother's Birth-right Isaac blessed him thus Be Lord over thy Brethren and let the Sons of thy Mother bow before thee As long as the first Fathers of Families lived the name of Patriarchs did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and only the Right of the Father descends to the true Heir then the Title of Prince or King was more significant to express the Power of him who succeeds only to the Right of that Fatherhood which his Ancestors did Naturally enjoy by this means it comes to pass that many a Child by succeeding a King hath the Right of a Father over many a Gray-headed Multitude and hath the Title of Pater Patriae 9. It may be demanded what becomes of the Right of Fatherhood in Case
the Crown does escheat for want of an Heir Whether doth it not then Divolve to the People The Answer is It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to die it is certain that there is One Man and but One in the World who is next Heir although the Knowledge who should be that One Man be quite lost 2. This Ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supreme Power is devolved to the Multitude and that they have Power to Rule and Chose what Rulers they please No the Kingly Power escheats in such cases to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the Uniting of great Families or petty Kingdoms we find the greater Monarchies were at the first erected and into such again as into their first Matter many times they return again And because the dependencie of ancient Families is oft obscure or worn out of Knowledge therefore the wisdom of All or Most Princes have thought fit to adopt many times those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enobled them or made them fit and capable of such Regal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please And he that is so Elected claims not his Power as a Donative from the People but as being substituted properly by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People If it please God for the Correction of the Prince or punishment of the People to suffer Princes to be removed and others to be placed in their rooms either by the Factions of the Nobility or Rebellion of the People in all such cases the Judgment of God who hath Power to give and to take away Kingdoms is most just Yet the Ministry of Men who Execute Gods Judgments without Commission is sinful and damnable God doth but use and turn mens Vnrighteous Acts to the performance of his Righteous Decrees 10 In all Kingdoms or Common-wealths in the World whether the Prince be the Supream Father of the People or but the true Heir of such a Father or whether he come to the Crown by Usurpation or by Election of the Nobles or of the People or by any other way whatsoever or whether some Few or a Multitude Govern the Commonwealth Yet still the Authority that is in any one or in many or in all these is the only Right and natural Authority of a Supream Father There is and always shall be continued to the end of the World a Natural Right of a Supreme Father over every Multitude although by the secret Will of God many at first do most unjustly obtain the Exercise of it To confirm this Natural Right of Regal Power we find in the Decalogue That the Law which enjoyns Obedience to Kings is delivered in the terms of Honour thy Father as if all power were originally in the Father If Obedience to Parents be immediately due by a Natural Law and Subjection to Princes but by the Mediation of an Humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate If we compare the Natural Rights of a Father with those of a King we find them all one without any difference at all but only in the Latitude or Extent of them as the Father over one Family so the King as Father over many Families extends his care to preserve feed cloth instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Privileges so that all the Duties of a King are summed up in an Universal Fatherly Care of his People CHAP. II. It is unnatural for the People to Govern or Chose Governours 1. ARistotle examined about the Freedom of the People and justified 2. Suarez disputing against the Regality of Adam 3. Families diversly defined by Aristotle Bodin and others 4. Suarez contradicting Bellarmine 5. Of Election of Kings 6. By the Major part of the People 7. By Proxy and by silent Acceptation 8. No Example in Scripture of the Peoples chosing their King Mr. Hooker's Judgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Judgment of Monarchy 11. Imperfections of the Roman Democratie 12. Rome began her Empire under Kings and perfected under Emperours In danger the People of Rome always fled to Monarchy 13. Whether Democraties were invented to bridle Tyrants or rather that they came in by Stealth 14. Democraties vilified by their own Historians 15. Popular Government more bloody than Tyranny 16. Of a mixed Government of the King and People 17. The People may not judge or correct their King 18. No Tyrants in England since the Conquest 1. BY conferring these Proofs and Reasons drawn from the Authority of the Scripture it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude to chose what Rulers they please Had the Patriarchs their Power given them by their own Children Bellarmine does not say it but the Contrary If then the Fatherhood enjoyed this Authority for so many Ages by the Law of Nature when was it lost or when forfeited or how is it devolved to the Liberty of the Multitude Because the Scripture is not favourable to the Liberty of the People therefore many fly to Natural Reason and to the Authority of Aristotle I must crave Liberty to examine or explain the Opinion of this great Philosopher but briefly I find this Sentence in the Third of his Politiques Cap. 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It seems to some not to be natural for one man to be Lord of all the Citizens since a City consists of Equals D. Lambine in his Latine Interpretation of this Text hath omitted the Translation of this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this means he maketh that to be the Opinion of Aristotle which Aristotle alleadgeth to be the Opinion but of some This Negligence or Wilful Escape of Lambine in not translating a word so Material hath been an occasion to deceive many who looking no farther than this Latine Translation have concluded and made the World now of late believe that Aristotle here maintains a Natural Equality of Men and not only our English Translator of Aristotle's Politiques is in this place misled by following Lambine but even the Learned Monsieur Duvall in
make the Countenance of Truth more Orient For unless we will openly proclaim Defiance unto all Law Equity and Reason we must for there is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessor putteth the Successor by Blood in Seisin Those publick Solemnities before-mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of inducing of him into possession of that thing he hath Right unto This is Mr. Hooker's Judgment of the Israelites Power to set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made choice of Joas a Child but of seven years old nor of Manasses a Boy of Twelve since as Solomon saith Wo to the Land whose King is a Child Nor is it probable they would have elected Josias but a very Child and a Son to so wicked and Idolatrous a Father as that his own Servants murthered him and yet all the people set up this young Josias and slew the Conspirators of the Death of Ammon his Father which Justice of the People God rewarded by making this Josias the most Religious King that ever that Nation enjoyed 9. Because it is affirmed that the People have Power to choose as well what Form of Government as what Governours they please of which mind is Bellarmine in those Places we cited at first Therefore it is necessary to Examine the Strength of what is said in Defence of popular Common-weals against this Natural Form of Kingdoms which I maintain'd Here I must first put the Cardinal in mind of what he affirms in cold Blood in other Places where he saith God when he made all Mankind of one Man did seem openly to signifie that he rather approved the Government of one Man than of many Again God shewed his Opinion when he endued not only Men but all Creatures with a Natural Propensity to Monarchy neither can it be doubted but a Natural Propensity is to be referred to God who is Author of Nature And again in a Third Place What Form of Government God confirmed by his Authority may be gathered by that Common-weal which he instituted amongst the Hebrews which was not Aristocratical as Calvin saith but plainly Monarchichal 10. Now if God as Bellarmine saith hath taught us by Natural Instinct signified to us by the Creation and confirmed by his own Example the Excellency of Monarchy why should Bellarmine or We doubt but that it is Natural Do we not find that in every Family the Government of One Alone is most Natural God did always Govern his own People by Monarchy only The Patriarchs Dukes Judges and Kings were all Monarchs There is not in all the Scripture Mention or Approbation of any other Form of Government At the time when Scripture saith There was no King in Israel but that every Man did that which was Right in his Own Eyes Even then the Israelites were under the Kingly Government of the Fathers of particular Families For in the Consultation after the Benjamitical War for providing Wives for the Benjamites we find the Elders of the Congregation bare only Sway. Judges 21.16 To them also were Complaints to be made as appears by Verse 22. And though mention be made of all the Children of Israel all the Congregation and all the People yet by the Term of All the Scripture means only all the Fathers and not all the whole Multitude as the Text. plainly expounds it self in 2 Chron. 1.2 where Solomon speaks unto all Israel to the Captains the Judges and to every Governour the Chief of the Fathers so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 Kings 8.12 2 Chron. 5.2 At that time also when the People of Israel begg'd a King of Samuel they were Governed by Kingly Power God out of a special Love and Care to the House of Israel did choose to be their King himself and did govern them at that time by his Viceroy Samuel and his Sons and therefore God tells Samuel They have not rejected Thee but Me that I should not Reign over them It seems they did not like a King by Deputation but desired one by Succession like all the Nations All Nations belike had Kings then and those by Inheritance not by Election for we do not find the Israelites prayed that they themselves might choose their Own King they dream of no such Liberty and yet they were the Elders of Israel gathered together If other Nations had Elected their own Kings no doubt but they would have been as desirous to have imitated Other Nations as well in the Electing as in the Having of a King Aristotle in his Book of Politicks when he comes to compare the several Kinds of Government he is very reserved in discoursing what Form he thinks Best he disputes subtilely to and fro of many Points and Judiciously of many Errours but concludes nothing himself In all those Books I find little Commendation of Monarchy It was his Hap to live in those Times when the Graecians abounded with several Common-wealths who had then Learning enough to make them seditious Yet in his Ethicks he hath so much good Manners as to confess in right down words That Monarchy is the best Form of Government and a Popular Estate the worst And though he be not so free in his Politicks yet the Necessity of Truth hath here and there extorted from him that which amounts no less to the Dignity of Monarchy he confesseth it to be First the Natural and the Divinest Form of Government and that the Gods themselves did live under a Monarchy What can a Heathen say more Indeed the World for a long time knew no other sort of Government but only Monarchy The Best Order the Greatest Strength the Most Stability and easiest Government are to be found all in Monarchy and in no other Form of Government The New Platforms of Commonweals were first hatched in a Corner of the World amongst a few Cities of Greece which have been imitated by very few other places Those very Cities were first for many Years governed by Kings untill Wantonness Ambition or Faction of the People made them attempt new kinds of Regiment all which Mutations proved most Bloody and Miserable to the Authors of them happy in nothing but that they continued but a small time 11. A little to manifest the Imperfection of Popular Government let us but examine the most Flourishing Democracy that the World hath ever known I mean that of Rome First for the Durability at the most it lasted but 480 Years for so long it was from the Expulsion of Tarquin to Julius Caesar Whereas both the Assyrian Monarchy lasted without Interruption at the least twelve hundred Years and the Empire of the East continued 1495 Years 2. For the Order of it during these 480 Years there was
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel's description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oaths of Kings 8. Of the Benefit of the King's Prerogative over Laws 9. the King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavoured to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the People do subject the Exercise of it to Positive Laws But in this also they err for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the Profit of every Man in particular and of all together in general is not always one and the same and that the Publick is to be preferred before the Private And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the Mischiefs in Monarchy or else a prophetical Description only of the future ill Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy wherein it is evidently shewed that the Scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient for by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this Point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both no Remedy in the Text against Tyrants but in crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckoned by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and Inferiour Lords To serve the King in his Wars and to till his Ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for
Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these Words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems St. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carried a Sword Wilt thou not be afraid of the Power that is the Ruler that carrieth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And St. Paul concludes for this Cause pay you Tribute also for they are God's Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to God's Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this Place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lord's sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoyneth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to manifest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a speaking Law he cannot mean that Kings themselves are an humane Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are humane Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Grammatical Construction Him the Relative must be referred to the next Antecedent which is King besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's Meaning is in short Obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor St. Paul intended other Form of Government than only Monarchical much less any Subjection of Princes to humane Laws That familiar Distinction of the School-men whereby they subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the positive Laws of any Nation since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King which no Man says is a Law to the King 4. There want not those who Believe that the first Invention of Laws was to bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens assoon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and tho many of their Laws were very severe and bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his Pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves so the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the People 5. The reason why Laws have been also made by Kings was this when Kings were either busied with Wars or distracted with publick Cares so that every private Man could not have Access to their Persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered to him in the Tables of his Laws that so there might be no need to resort unto the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The People have the Law as a Familiar Admonisher and Interpreter of the King's Pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-weal doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so
much as the Natural Law of a Father which binds them to ratifie the Acts of their ForeFathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-Bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these Words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall Judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience joyn'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for Truth that Kings do swear to observe all the Laws of their Kingdom yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no further bound than the Equity and Justice of the Contract ties him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error or Force or Fear induced him thereunto Or if it be hurtful or grievous in the performance Since the Laws in many Cases give the King a Prerogative above common Persons I see no Reason why he should be denied the Priviledg which the meanest of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Whether it be a Sin for a Subject to disobey the King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Humane Laws but even in Divine a thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of the Sabbath is a Divine Law yet if a Master command his Servant not to go to Church upon a Sabbath-Day the best Divines teach us That the Servant must obey this Command though it may be Sinful and Unlawfull in the Master because the Servant hath no Authority or Liberty to examine and judge whether his Master sin or no in so commanding For there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14.5 yet it is not fit to tie the Master to acquaint his Servant with his secret Counsels or present Necessity And in such Cases the Servant 's not going to Church becomes the Sin of the Master and not of the Servant The like may be said of the King 's commanding a Man to serve him in the Wars he may not examine whether the War be Just or Unjust but must Obey since he hath no Commission to Judge of the Titles of Kingdoms or Causes of War nor hath any Subject Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some are afraid of the Name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it The Court of Chancery it self is but a Branch of the King's Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Jus is Summa Injuria General Pardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or make them In all Aristocraties the Nobles are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power he is but an Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all things according to his Own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he
King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that he might have always at hand Able Men for his Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Process of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malicious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Process yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw 1. Cap. 5. did provide That the Chancellour and Justices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's answer was He thought it not reasonable that He should be constrained to send for his Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Outrages the Common Law cannot have duly her Course in such case the Counsel for the Party Also in the 13 th Year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpaena's other Writs grounded upon false Suggestions the King answered That he would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time our good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denial for the present by a Phrase peculiar for the King 's denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and his Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Freehold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regality or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded James Audley to