Political discourses of Sir Robert Filmer, Baronet, viz. Patriarcha, or the natural power of Kings. The free-holders Grand-inquest. Observations upon Aristotles politicks. Directions for obedience to government. Also observations upon Mr. Hobbs's Leviathan. Mr. Milton against Salmatius. Hugo Grotius de Jure Belli & Pacis. Mr. Hunton's treatise on Monarchy. With an advertisement to the Jurymen of England touching witches

CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings. (Book 3)

(1.) REgal Authority not subject to the Positive Laws, Kings be∣fore Laws; the King of Judah and Israel not tyed to Laws. (2.) Of Samuel's De∣scription 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 Oathes 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 Coun∣cil have anciently determined Causes in the Star-Chamber. (12.) Of Parlia∣ments.

(13.) When the People were first called to Parliament. (14.) The Liberty of Parliaments, not from Na∣ture, but from Grace of the Princes. (15.) The King alone makes Laws in Parliament. (16.) Governs both Hou∣ses as Head by himself. (17.) By his Council. (18.) By his Judges.

(1.) HItherto I have endeavour'd to shew the Natural Insti∣tution of Regal Authori∣ty, and to free it from Subjection to an Arbitrary Election of the People: It is necessary also to enquire whether Humane Laws have a Superio∣rity over Princes; because those that maintain the Acquisition of Royal Ju∣risdiction from the people, do subject the Exercise of it to Positive Laws. But in this also they Erre, 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 al∣lows Children any Action or Remedy

for being unjustly Governed; and yet or all this every Father is bound by the ••aw of Nature to do his best for the pre∣••ervation of his Family; but much more •• a King always tyed by the same Law of Nature to keep this general ground, That the safety of the Kingdom be his ••hief Law: He must remember, That he profit of every man in particular, and of all together in general, is not always One and the same; and that the Pub∣lick is to be preferred before the Private; ••nd that the force of Laws must not be •• great as Natural Equity it self, which ••nnot fully be comprised in any Laws ••hatsoever, but is to be left to the Re∣••••gious Atchievement of those who ••••ow how to manage the Affaires of ••tate, and wisely to Ballance the parti∣cular profit with the Counterpoize of ••e Publick, according to the infinite Va∣••ety of Times, Places, Persons; a proof ••nanswerable, for the Superiority of Prin∣ces above Laws, is this, That there were ••ings long before there were any Laws: or a long time the Word of a King ••as the only Law; and if Practice (as ••••th Sir Walter Raleigh) declare the ••eatness of Authority, even the best

Kings of Judah and Israel were not tyed to any Law; but they did what-soever they pleased, in the greatest matters.

(2) The Unlimitted 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 Govern∣ment himself and Family, by frighting the Israelites with the mischiefs in Mo∣narchy, or else a prophetical Description only of the future III Government of Saul: But the Vanity of these Conje∣ctures 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, whe∣ther Samuel describe a King, or a Tyrant,

for Patient Obedience is due to both; ••ho 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 ap∣plyed 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 Incon∣veniences and Miseries which are reckon∣••ed by Samuel as belonging to Kingly Go∣vernment were not Intollerable, but such as have been born, and are still born, by free Consent of Subjects to∣wards 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 ••nferior Lords: To serve the King in his Wars, and to till his ground, is not on∣ly 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 we cannot think that the

King would use their Labours without giving them Wages, since the Text it self mentions a Liberal reward of his Ser∣vants.

As for the taking of the Tenth of their Seed, of their Vines, and of their Sheep, it might be a necessary Provision for their Kings Household, and so belong to the Right of Tribute: For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant, who observes no Proportion, in fleecing his People.

Lastly, The taking of their Fields Vineyards, and Olive-trees, if it be by Force or Fraud, or without just Re∣compence, to the Dammage of Private Persons only, it is not to be defended but if it be upon the publick Charge and General Consent, it might be justi∣fyed, as necessary at the first Erects on of a Kingdome; For those who wi•••• have a King, are bound to allow hi•• Royal maintenance, by providing Re∣venues for the CROWN, Since it both for the Honour, Profit and Safety too of the People to have their King

Glorious, Powerful, and abounding in ••iches, besides we all know the Lands ••nd Goods of many Subjects may be oft∣••mes Legally taken by the King, either ••y Forfeitures, Escheat, Attainder, Out∣••wry, Confiscation, or the like. ••hus we see Samuel's Character of a ••ng may literally well bear a mild ••nse, for greater probability there is at Samuel so meant, and the Israelites understood it; to which this may be ••ded, that Samuel tells the Israelites, ••s will be the manner of the King that ••ll Reign over you: And Ye shall •••• because of your King which Ye shall ••e chosen you; that is to say: Thus ••••ll be the common Custom or Fashi∣•• or Proceeding of Saul your King; as the Vulgar Latine renders it, this ••l be the Right or Law of your King; •• meaning as some expound it, the ••••al Event, or Act of some individu∣••••agum, or indefinite King, that might ••en one day to Tyrannise over them. ••hat Saul, and the Constant practice Saul, doth best agree with the Lite∣•• Sense of the Text. Now that Saul ••no Tyrant, we may note that the ••le asked a King, as All Nations had.

God answers, and bids Samuel to hear the Voice of the People, in all things which they spake, and appoint them a King. They did not ask a Tyrant, and to give them a Tyrant, when they asked a King, had not been to hear their Voice in all things but rather when they asked an Egge, to have given them a Scorpion: Unless we will say, that all Nations had Tyrant•• Besides, we do not find in all Scripture that Saul was Punished, or so much a•• Blamed, for committing any of tho•••• Acts which Samuel describes: and if S••¦muel's drift had been only to terrifie th•• People, he would not have forgott•• to foretell Saul's bloody Cruelty, •••• Murthering 85 innocent Priests, a•• smiteing with the Edge of the Swo•• the City of Nob, both Man, Woman and Child. Again, the Israelites ne•• shrank at these Conditions proposed b•• Samuel, but accepted of them, as such •••• all other Nations were bound u•••• For their Conclusion is, Nay, but we •••• have a King over Us, that We also may •••• like all the Nations, and that Our K•••••• may Judge us, and go out before us to •••• our Battels. Meaning he should •••• his Privileges, by doing the work ••••

them, by Judging them, and Fighting for them. Lastly, Whereas the men∣tion of the Peoples Crying unto the Lord, argues they should be under some Tyrannical Oppression; we may re∣member, that the Peoples Complaints and Cries are not always an Argument ••f their Living under a Tyrant. No man can say King Solomon was a Tyrant, yet all the Congregation of Israel com∣plain'd that Solomon made their Yoke grievous, and therefore their Prayer to ••ehoboam is, Make thou the grievous Ser∣••ice of thy Father Solomon, and his hea∣••y Yoke which he put upon us, lighter, and ••e will serve thee. To conclude, it is ••rue, Saul lost his Kingdom, but not ••or being too Cruel or Tyrannical to his ••ubjects, but by being too Merciful to ••is Enemies; his sparing Agag when he ••hould have slain him, was the Cause why the Kingdom was torn from him.

(3.) If any desire the direction of the New Testament, he may find our Savi∣our limiting and distinguishing Royal ••ower, By giving to Caesar those things ••at were Caesar's, and to God those things

that were God's. Obediendum est in qui∣bus mandatum Dei non impeditur. We must obey where the Commandment of God is not hindred; there is no o∣ther Law but Gods Law to hinder our Obedience. It was the Answer of a Chri∣stian to the Emperour, We only worship God, in other things we gladly serve you And it seems Tertullian thought what∣soever was not God's was the Emperours when he saith, Bene opposuit Caesari pecu∣niam, te ipsum Deo, alioqui quid erit Dei∣si omnia Caesaris. Our Saviour hath well apportioned our Money for Coesar and our selves for God, for otherwise what shall God's share be, if all be Coe∣sar's The Fathers mention no Reserva∣tion of any Power to the Laws of the Land, or to the People. S. Ambrose, in his Apologie for David, expresly saith He was a King, and therefore bound to no Laws, because Kings are free from the Bonds of any Fault. S. Augustine also resolves, Imperator non est subjectus Leg•• bus, qui habet in potestate alias Leges ferr•• The Emperour is not subject to Laws who hath Power to make other Laws For indeed, it is the Rule of Solomon, that We must keep the King's Commandment

and not to say, What dost Thou? because Where the Word of a King is, there is Power, and All that he pleaseth, he will do.

If any mislike this Divinity in Eng∣land, let him but hearken to Bracton, Chief Justice in Henry the Third's days, which was since the Institution of Par∣liaments, his words are, speaking of the ••ing, Omnes sub Eo, & Ipse sub nullo, ••••si tantum sub Deo, &c. All are under ••m, and he under none, but God on∣••••: If he offend, since no Writ can go ••ainst him, their Remedy is by Peti∣••ning him to amend his Fault, which he shall not do, it will be Punish∣ment sufficient for him to expect God as Revenger: Let none presume to Search to his Deeds, much less to Oppose ••••em.

When the Jews asked our Blessed Sa∣••ur, whether they should pay Tri∣••e? he did not first demand what the ••w of the Land was, or whether there •••• any Statute against it, nor enquired ••ether the Tribute were given by ••••nsent of the people, nor advised •••• to stay their payment till

they should grant it; he did no more but look upon the Superscription, and concluded, This Image you say is Caesar's, therefore give it to Caesar. Nor must it here be said, that Christ taught this Les∣son only to the conquered Jews, for in this he gave direction for all Nations, who are bound as much in Obedience to their Lawful Kings, as to any Con∣querour or Usurper whatsoever.

Whereas being subject to the Higher Powers, some have strained these word to signifie the Laws of the Land, or else to mean the Highest Power, as well Ari∣stocratical and Democratical, as Regal It seems S. Paul looked for such Inter∣pretation, and therefore thought fit to be his own Expositor, and to let it be known, that by Power he understood Monarch that carryed a Sword: Wi•••• thou not be afraid of the Power? that i•• the Ruler that carryeth the Sword, fo•• he is the Minister of God to thee—•••• he beareth not the Sword in vain. It not the Law that is the Minister of God or that carries the Sword, but the R••∣ler or Magistrate; so they that say th•••• Law governs the Kingdom, may as we••••

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 S. Paul concludes; for this cause pay you tribute also, for they are Gods Ministers attending continu∣ally upon this very thing. Render there∣fore Tribute to whom Tribute is due, Custom to whom Custom. He doth not say, give as a gift to Gods Minister. But 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Render or Restore Tribute, as a due. Also St. Peter doth most clearly ex∣pound this place of St. Paul, where he saith, Submit your selves to every Or∣dinance of Man, for the Lords sake, whe∣ther 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉) which St. Paul coupleth with Power, St. Peter conjoin∣eth with the King, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, thereby to maniest that King and Pow∣er 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 human Or∣dinance, 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 Human Ordi∣nances. 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 Gramatical 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 Gover∣nours were sent by God, and the King be an Humane Ordinance, then it fol∣lows, that the Governours were Su∣preme, 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. There∣fore St. Peter's meaning is in short, obey the Laws of the King, or of his Mini∣sters. By which it is evident, that neither St. Peter, nor S. Paul, intended other-Form of Government than only Mo∣narchical, much less any Subjecton of Princes to Humane Laws.

That familiar distinction of the Schoolmen, 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 Posi∣tive 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 Pun∣ishment to Obedience; whereas the Di∣rection of the Law, is but like the ad∣vice 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 Be∣lieve 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 keep∣ing 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, as soon 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 though many of their Laws were very Severe and Bloody, yet for the Re∣verence 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 them∣selves: So the People of Rome gave to the Ten Men, who were to chuse and correct their Laws for the Twelve Ta∣bles, 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 busyed with Wars, or distracted with Publick Cares, so that e∣very private man could not have accesse to their persons, to learn their Wills and Pleasure; then of necessity were Laws invented, that so every particular Sub∣ject might find his Prince's Pleasure de∣cyphered unto him in the Tables of his Laws, that so there might be no need to resort to the King; but either for the Interpretation or Mitigation of Ob∣scure

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 intolera∣ble Troubles, as Moses did himself by chusing Elders. Secondly, The peo∣ple have the Law as a Familiar Admoni∣sher and Interpreter of the King's plea∣sure, which being published throughout the Kingdom, doth represent the Pre∣sence 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 o∣thers, 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) a∣bove 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 miti∣gate and interpret. General Laws made in Parliament, may, upon known Re∣spects 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 ac∣cording 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 Com∣mon-Weale 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 Preservati∣on 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 Munici∣pial Law of the Land, so much as the Natural Law of a Father, which binds them to ratifie the Acts of their Fore-Fathers and Predecessors, in things ne∣cessary for the Publick Good of their Subjects.

(7.) Others there be that affirm, That ••lthough Laws of themselves do not ••ind Kings, yet the Oaths of Kings at ••heir Coronations tye them to keep all ••he Laws of their Kingdoms. How far this is true, let us but examine the Oath of ••he Kings of England at their Coronation; ••he words whereof are these, Art thou ••leased to cause to be administred in all thy ••udgments indifferent and upright Justice, ••nd to use Discretion with Mercy and Ve∣••ity? Art thou pleased that our upright Laws and Customs be observed, and dost thou promise that those shall be protected ••nd maintained by thee? These two are ••he Articles of the King's Oath, which concern the Laity or Subjects in Gene∣ral; to which the King answers affir∣matively. Being first demanded by the Arch-bishop of Canterbury, Pleaseth it ••ou to confirm and observe the Laws and ••ustoms of Ancient Times, granted from ••od, by just and devout Kings, unto the Eng∣lish Nation, by Oath unto the said People. Especially the Laws, Liberties, and Cu∣stoms granted unto the Clergy and Laity ••y 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 can∣not 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 Hen∣ry 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 (o•• as Bracton hath it) oequitatem proecipia•• & 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 accord∣ing to Equity of his Conscience, join'd with Mercy, which is properly the Of¦fice of a Chancellour rather than of Judge; and if a King did strictly sweat to observe all the Laws, he could not without Perjury give his Consent to the Repealing or Abrogating of any St••¦tute by Act of Parliament, which

would be very mischievable to the ••tate.

But let it be supposed for truth, that Kings do swear to observe all the Laws ••f their Kingdoms, yet no man can ••hink it reason that Kings should be ••ore bound by their Voluntary Oaths ••han Common Persons are by theirs. Now if a private person make a Con∣••ract, either with Oath or without Oath, he is no further bound than the ••quity and Justice of the Contract ties ••im; for a man may have Relief against ••n unreasonable and unjust promise, if ••ther Deceit, or Errour, or Force, or ••ear induced him thereunto: Or if it be ••urtful or grievous in the performance. ••ince the Laws in many Cases give the ••ing a Prerogative above Common Per∣••ons, I see no Reason why he should be ••enyed the Priviledge which the mean∣st of his Subjects doth enjoy.

Here is a fit place to examine a Que∣stion which some have moved, Whe∣••••er it be a sin for a Subject to disobey ••e King, if he Command any thing con∣trary to his Laws? For satisfaction in this

point, we must resolve, that not only in Human Laws, but even in Divine, a•• thing may be commanded contrary to Law, and yet Obedience to such a Com∣mand 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, that Best Divines teach us, That the Servant must obey this Command, though it may be Sinful and Unlawful in the Master because the Servant hath no Authority or Liberty to Examine and Judge whe¦ther his Master Sin or no in so Com¦manding; for there may be a just Cause for a Master to keep his Servant from Church, as appears Luke 14. 5. yet it i•• not fit to tye the Master to acquaint hi•• Servant with his Secret Counsels, or pre¦sent Necessity: And in such Cases, th•• Servants not going to Church, become the Sin of the Master, and not of th•• Servant. The like may be said of th•• King's Commanding a man to serve his in the Wars, he may not Examine whe¦ther the War be Just or Unjust, but mu•••• Obey, since he hath no Commission •• Judge of the Titles of Kingdoms, Cau••es of War; nor hath any Subje••••

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 ••uch men consider not, 1. That the Pre∣rogative of a King is to be above all Laws, ••or the good only of them that are under the Laws, and to defend the Peoples Li∣berties, as His Majesty graciously affirm∣ed in His Speech after His last Answer to the Petition of Right: Howsoever some ••re afraid of the Name of Prerogative, ••et they may assure themselves, the Case ••f Subjects would be desperately mise∣rable without it. The Court of Chancery ••t self is but a Branch of the Kings Pre∣rogative, to Relieve men against the in∣••xorable rigour of the Law, which with∣out it is no better than a Tyrant, since ••ummum Jus, is Summa Injuria. General ••ardons, at the Coronation and in Parlia∣ments, are but the Bounty of the Prero∣gative. 2. There can be no Laws with∣out a Supreme Power to command or ••ake them. In all Aristocraties the No∣••es are above the Laws, and in all Demo∣craties

the People. By the like Reason, in a Monarchy the King must of neces∣sity be above the Laws; there can be no Soveraign Majesty in him that is un∣der 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 a∣ny other means; for it is still the manner of the Government by Supreme Pow∣er 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 thing according to his Own Will, for he that is called a King according to the Law•• makes no kind of Kingdom at all. Th•••• 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 Augu∣stus from all Necessity of Laws, that he might be free of his own Authority, and of absolute Power over himself and over the Laws, to do what he pleased, and ••eave undone what he list, and this Decree was made while Augustus was yet absent. Accordingly we find, that Ulpian the great Lawyer delivers it for a Rule of the Civil Law; Princeps, Le∣••ibus solutus est. The Prince is not bound ••y the Laws.

(9) If the Nature of Laws be advi∣••edly weighed, the Necessity of the Prin∣ces being above them may more mani∣fest it self; we all know that a Law in General is the command of a Superior ••ower. Laws are divided (as Bellermine ••ivides the Word of God) into written and unwritten, not for that it is not Writ∣ten at all, but because it was not Writ∣ten by the first Devisers or Makers of it. The Common Law (as the Lord Chan∣cellor Egerton teacheth us) is the Com∣mon Custom of the Realm. Now concern∣ing Customs, this must be considered, ••hat for every Custom there was a time ••hen it was no Custom; and the first

President we now have, had no Presi∣dent when it began; when every Cu∣stom began, there was something else than Custom that made it lawful, or else the beginning of all Customs were unlawful. Customs at first became Law∣ful only by some Superiour, which did either Command or Consent unto their beginning. And the first Power which we find (as it is confessed by all men) is the Kingly Power, which was both in this and in all other Nations of the World, long before any Laws, or any other kind of Government was thought of; from whence we must necessarily infer, that the Common Law it self, or Com∣mon Customs of this Land, were Ori∣ginally the Laws and Commands o•• Kings at first unwritten.

Nor must we think the Commen Customs (which are the Principles o•• the Common Law, and are but few) to be such, or so many, as are able to give special Rules to determine every parti∣cular Cause. Diversity of Cases are in∣finite, and impossible to be regulated by any Law; and therefore we find, even in the Divine Laws which are delivere••

by Moses, there be only certain Princi∣pal Laws, which did not determine but only direct the High-priest or Magi∣strate, whose Judgment in special Cases ••id determine, what the General Law intended. It is so with the Common Law, for when there is no perfect Rule, ••udges do resort to those Principles, or Common Law Axiomes, whereupon former Judgments, in Cases some-what ••ike, have been delivered by former ••udges, who all receive Authority from the King, in his Right and Name to give sentence according to the Rules and Presidents of Antient Times: And where Presidents have failed, the Judg∣es have resorted to the General Law of Reason, and accordingly given Judg∣ment, without any Common Law to di∣rect them. Nay, many times, where ••here have been Presidents to direct, ••hey, upon better Reason only, have Changed the Law, both in Causes Crimi∣cal and Civil, and have not insisted so much on the Examples of former Judg∣es, as examined and corrected their ••easons; thence it is that some Laws are ••ow obsolete and out of use, and the ••ractice quite contrary to what it was in

Former Times, as the Lord Chancel∣lor Egerton proves, by several Instan∣ces.

Nor is this spoken to Derogate from the Common Law, for the Case standeth so with the Laws of all Nations, although some of them have their Laws and Prin∣ciples Written and Established: for wit∣nesse to this, we have Aristotle his Testi∣mony in his Ethiques, and in several places in his Politiques; I will cite some of them. Every Law (saith he) is in the General, but of some things there can be no General Law—when therefore the Law sqeaks in General, and something falls out after besides the General Rule: Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Gene¦rally, it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it. The Governour, whether h•• be one Man, or more, ought to be Lord ••¦ver all those things whereof it was impossi¦ble the Law should exactly speak, because it is not easie to comprehend all things un¦der General Rules—whatsoever the Law cannot Determine, it leaves to the Gover¦nours to give Judgment therein, and per∣mits

them to rectifie whatsoever upon Try∣al they find to be better than the Written Laws.

Besides, all Laws are of themselves Dumb, and some or other must be trust∣ed with the Application of them to Par∣ticulars, by examining all Circumstances, to pronounce when they are broken, or by whom. This work of right Ap∣plication of Laws is not a thing easie or obvious for ordinary capacities; but re∣quires profound Abilities of Nature, for the beating out of the truth, witness the Diversity, and sometimes the contrarie∣ty of Opinions of the learned Judges, in some difficult Points.

(10) Since this is the common Con∣dition of Laws, it is also most reasona∣ble that the Law-maker should be trust∣ed with the Application or Interpretati∣on of the Laws; and for this Cause an∣ciently the Kings of this Land have sit∣ten personally in Courts of Judica∣ture, and are still Representatively present in all Courts; the Judges are but substituted, and called the Kings Justices, and their Power ceaseth when the King is in place. To this purpose, Bracton, that learned Chief Justice in the

Reign of Henry the Third, saith in ex∣press terms; In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected; since it is his part to interpret, who made the Law; for as he saith in another place, Rex, & non Alius debet Judicare, si So∣lus ad id sufficere possit, &c. The King, and no body else, ought to give Judgment, if He were able, since by vertue of his Oath he is Bound to it; therefore the King ought to exercise Power as the Vicar or Minister of God, but if our Lord the King be not a∣ble to determine every cause, to ease part of his Pains by distributing the Burthen to more Persons, he ought to chuse Wise men fearing God, &c, and make Justices of them: Much to the same purpose are the words of Edward the First, in the be∣ginning of his Book of Laws, written by his appointment by John Briton, Bishop of Hereford, We will (saith he) that our own Jurisdiction be above all the Jurisdi∣ctions of our Realm, so as in all manner of Felonies, Trespasses, Contracts, and in all other Actions, Personal, or Real, We have power to yield such Judgments as do appertain without other Process, where∣soever we know the right truth as Judges.

Neither may this be taken to be meant of an imaginary Presence of the King's Per∣son in His Courts, because he doth im∣mediately after in the same place seve∣rally set forth by themselves the Juris∣dictions of his Ordinary Courts; but must necessarily be understood of a Ju∣risdiction remaining in the King's Roy∣al Person. And that this then was no New-made Law, or first brought in by the Norman Conquests, appears by a Saxon Law made by 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 Alle∣vet, provocato. Let no man in Suit ap∣peal 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, where∣in Parliaments were much in use, there was a High-Court following the King, which was the place of Soveraign Ju∣stice,

both for matter of Law and Con∣science, as may appear by a Parliament in Edward the First's time, taking Or∣der, That the Chancellour and the Justi∣ces 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 af∣ter the time that the Court of Common-Pleas was made Stationary, which is an Evidence that the King reserved a Sove∣raign 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 fore∣see every particular which Time and Ex∣perience brings forth.

(12.) Therefore though the Common Law be generally Good and Just, yet in some special Case it may need Correcti∣on, by reason of some considerable Cir∣cumstance 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 extraor∣dinary help, and cannot wait for the Usu∣al 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 Processe of common Law, yet rare matters from time to time do grow up meet, for just Reasons, to be re∣ferred to the aid of the absolute Autho∣rity 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 Malitious 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, in∣somuch as in His Reign divers Statutes were made, That provided none should be put to answer before the King and His Council without due Processe; yet it is apparent the necessity of such Pro∣ceedings 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 pro∣vide, 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 re∣quire. 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 Ta∣liation, 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 Expen∣ces 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 Coun∣cil.

At a Parliament at Glocester, 2. Ric. 2. when the Commons made Petition, That none might be forced by Writ out of Chan∣cery, or by Privy Seal, to appear before the King and His Council, to answer touch∣ing 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 re∣manded 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 Out-rages, the Common Law cannot have duly her Course, in such case the Council for the Party.

Also in the 13th 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 Ordi∣nance against the Common Law; the King answered, Let it le used as it hath been used before this time, so as the Rega∣••lity of the King be saved, for the King will save His Regalities as His Progeni∣••tors have done.

Again, in the 4th year of Henry the Fourth, when the Commons complained against Subpoena's, and other Writs, ground∣ed

upon false Suggestions; the King an∣swered, 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 Of∣ficers shall so abstain, that they may not send for Our Subjects in Matters and Cau∣ses necessary, as it hath been used in the time of 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 ad∣vised; which amounts to a Denyal for the present, by a Phrase peculiar for the Kings 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 Free ••old of Inheritance. And yet that upon ••ause reasonable, upon credible Infor∣mation, in matters of weight, the King's ••egallity or Prerogative in sending for ••is Subjects be maintain'd, as of Right ought, and in former times hath been ••onstantly used.

King Edward the First, finding that ••ogo de Clare was discharged of an Ac∣••usation brought against him in Parlia∣ment, for that some formal Imperfections ••ere found in the Complaint, command∣ed him nevertheless to appear before Him and His Council, ad faciendum, & ••cipiendum quod per Regem & ejus Conci∣••••m fuerit faciendum; and so proceeded •••• an Examination of the whole Cause. •••• Edw. 1.

Edward the Third, In the Star-Cham∣••••r (which was the Ancient Council-Cham∣••••r at Westminster) upon the Complaint •••• Elizabeth Audley, commanded James ••udley to appear before Him and His ••ouncil, and determin'd a Controversie between them, touching Lands contain'd the Covenants of her Joynture. Rot: ••aus. de an. 41. Ed. 3:

Henry the Fifth, in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence, in the Isle of Thenet, in Kent, took order for the Sequestring the Profits till the Right were tryed, as well for avoiding the breach of the Peace, as for prevention of waste and spoil. Rot. Patin. Anno 6 Hen. 5.

Henry the Sixth commanded the Ju¦stices of the Bench to stay the Arraign¦ment of one Verney of London, till they had other commandment from Him an•• His Council, because Verney, being indebt¦ed to the King and others, practised t•• be Indicted of Felony, wherein he might have his Clergy, and make his Purgation of intent to defraud his Creditors. 3. Hen. 6. Rot. 37. in Banco Regis.

Edward the Fourth and His Council, 〈◊〉〈◊〉 the Star-Chamber, heard the Cause of the Master and Poor Brethren of S. Leonard in York, complaining, that Sir Hugh Ha••¦ings, and others, withdrew from them great part of their living, which con¦sisted chiefly upon the having of

Thrave of Corn of every P••ough-Land within the Counties of York, Westmer∣••nd, Cumberland, and Lancashire. Rot. ••aten. de Anno 8. Ed. 4. Part 3. Memb. 14.

Henry the Seventh and His Council, in ••••e Star-Chamber, decreed, That Margery ••nd Florence Becket should Sue no fur∣ther in their Cause against Alice Radley, ••idow, for Lands in Wolwich and Plum∣••ad in Kent; for as much as the Matter ••d been heardfirst before the Council of ••ng Ed. 4. after that before the Presi∣••••nt of the Requests of that King, Hen. and then lastly, before the Council of said King. 1. Hen. 7.

What is hitherto affirmed of the De∣••dency and Subjection of the Com∣••on Law to the Soveraign Prince, the ••e may be said as well of all Statute ••••ws; for the King is the sole immedi∣•• Author, Corrector, and Moderator them also; so that neither of these •• kinds of Laws are or can be any ••inution of that Natural Power ••••ch Kings have over their People, by ••t of Father-hood, but rather are an ••ument to strengthen the truth of

it; for Evidence whereof, we may in some points consider the nature of Par∣liaments, because in them only all Sta∣tutes are made.

(12.) Though the Name of Parliament (as Mr. Cambden saith) be of no great Antiquity, but brought in out of France yet our Ancestors, the English Saxons had a Meeting, which they called, The Assembly of the Wise; termed in Latine Conventum Magnatum, or, Proesentia Re∣gis, Procerum{que} Prelaterum{que} collector•••• The Meeting of the Nobility, or the Presence of the King, Prelates, an•• Peers Assembled; or in General, Magnu•• Concilium, or Commune Concilium; an•• many of our Kings in elder times mad•• use of such great Assemblies for to Con∣sult of important Affaires of State; a•• which Meetings, in a General sense, ma•• be termed Parliaments.

Great are the Advantages which b•••• the King and People may receive by well-ordered Parliament; there is n••¦thing more expresseth the Majesty a Supreme Power of a King, than such Assembly, wherein all his People

knowledge him for Soveraign Lord, and make all their Addresses to him by hum∣ble Petition and Supplication; and by their Consent and Approbation do strengthen all the Laws, which the King, ••••at their Request and by their Advice and Ministry, shall ordain. Thus they facilitate the Government of the King, by making the Laws unquestionable, ei∣ther to the Subordinate Magistrates, or ••refractory Multitude. The benefit which ••••crews to the Subject by Parliaments, is, That by their Prayers and Petitions Kings are drawn many times to redress their Just grievances, and are overcome by their importunity to grant many ••hings which otherwise they would not ••ield unto; for the Voice of a Multi∣tude is easilier heard. Many Vexations of the People are without the knowledge of the King; who in Parliament seeth ••nd heareth his People himself; whereas •• other times he commonly useth the ••yes and Ears of other men.

Against the Antiquity of Parliaments ••e need not dispute, since the more an∣••ent they be, the more they make for ••e Honour of Monarchy; yet there be

certain Circumstances touching the Forms of Parliaments, which are fit to be considered.

First, we are to remember, that un∣til about the time of the Conquest, there could be no Parliaments assembled of the General States of the whole Kingdom of England, because till those days we can¦not learn it was entirely united into one Kingdom; but it was either divided in¦to several Kingdoms, or Governed by se∣veral Laws. When Julius Coesar landed he found 4 Kings in Kent; and the British Names of Dammonii, Durotriges, Belgae•• Attrebatii, Trinobantes, Iceni, Silures and the rest, are plentiful Testimonies o•• the several Kingdoms of Brittains, whe•• the Romans left us. The Saxons divide us into 7 Kingdoms: when these Saxon•• were united all into a Monarchy, they had always the Danes their Compani∣ons, or their Masters in the Empire, ti•• Edward the Confessors Days, since who•• time the Kingdom of England hath con∣tinued United, as now it doth: But for a Thousand years before we cannot fin•• it was entirely setled, during the Tim•• of any one Kings Reign. As under th••

Mercian Law: The West Saxons were confined to the Saxon Laws; Essex, Norfolk, Suffolk, and some other Places, were vexed with Danish Laws; The Northumbrians also had their Laws a∣part. And until Edward the Confessors Reign, who was next but one before the Conquerour, the Laws of the Kingdom were so several and Uncertain, that he was forced to Cull a few of the most in∣different and best of them, which were from him called St. Edwards Laws: Yet some say that Eadgar made those Laws, and that the Confessor did but restore and mend them. Alfred also gathered out of Mulmutius laws, such as he translated into the Saxon Tongue. Thus during the time of the Saxons, the Laws were so variable, that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom.

(13) A second Point considerable is, whether in such Parliaments, as was ••n the Saxon's times, the Nobility ••nd Clergy only were of those Assem∣••lies, or whether the Commons were also called; some are of Opinion, that ••hough none of the Saxon Laws do

mention the Commons, yet it may be gathered by the word Wisemen, the Commons are intended to be of those Assemblies, and they bring (as they conceive) probable arguments to prove it, from the Antiquity of some Bur∣roughs that do yet send Burgesses, and from the Proscription of those in Anti∣ent Demesne, not to send Burgesses to Parliament. If it be true, that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns, yet it may be doubted, whether other Kingdoms had the same usage; but sure it is, that during the Heptarchy, the People could not Elect any Knights of the Shire, because England was not then divided into Shires.

On the contrary, there be of our Histo∣rians who do affirm, that Henry the First caused the Commons first to be Assem∣bled by Knights and Burgesses of their own Appointment, for before his Time only certain of the Nobility and Pre∣lates of the Realm were called to Con∣sultation about the most Important Af∣fairs of State. If this Assertion be true it seems a meer matter of Grace of this

King, and proves not any Natural Right of the People, Originally to be admitted to chuse their Knights and Burgesses of Parliament, though it had been more for the Honour of Parliaments, if a King, whose Title to the Crown had been better, had been Author of the Form of it; because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and El∣der Brother, by taking the Oaths of the Nobility in Parliament; and getting the Crown to be setled upon his Chil∣dren. And as the King made use of the People, so they, by Colour of Parliament, served their own turns; for after the E∣stablishment of Parliaments by strong hand, and by the Sword, they drew from him the Great Charter, which he grant∣ed the rather to flatter the Nobility and People, as Sir Walter Raleigh in his Dia∣logue of Parliaments doth affirm, in these words. The great Charter was not Origi∣nally granted Legally and Freely; for Hen∣ry the First did but Usurp the Kingdom, and therefore, the better to assure himself against Robert his Elder Brother, he flat∣tered the Nobility and People with their Charters; yea, King John, that Confirmed

them, had the like respect, for Arthur Duke of Brittain was the undoubted Heir of the Crown, upon whom King John Usurped, and so to conclude, these Charters had their O∣riginal from Kings de facto, but not de jure—the Great Charter had first an ob∣scure Birth by Usurpation, and was Second∣ly sostered and shewed to the World by Re∣bellion.

(15.) A third consideration must be, that in the former Parliaments, institut∣ed and continued since King Henry the First's time, is not to be found the Usage of any Natural Liberty of the People; for all those Liberties that are claimed in Parliament are the liberties of Grace from the King, and not the Liberties of Nature to the People; for if the liberty were Natural, it would give Power to the Multitude to assemble themselves When and Where they please, to bestow Soveraignty, and by Pactions to limit and direct the Exercise of it. Whereas, the Liberties of Favour and Grace, which are Claimed in Parliaments, are restrained both for Time, Place, Persons, and other Circumstances, to the Sole Pleasure of the King. The People can

not Assemble themselves, but the King, by his Writs, calls them to what place he pleases; and then again Scatters them with his Breath at an instant, without a∣ny other Cause shewed than his Will. Neither is the whole Summoned, but only so many as the Kings Writs ap∣point. The prudent King Edward the First, summoned always those Barons of ancient Families, that were most wise, to his Parliament, but omited their Sons after their Death, if they were not an∣swerable to their Parents in Understand∣ing. Nor have the whole people Voi∣ces in the Election of Knights of the Shire or Burgesses, but only Free-hold∣ers in the Counties, and Freemen in the Cities and Burroughs; yet in the City of Westminster all the House-holders, though they be neither Free-men nor Free-holders, have Voices in their Ele∣ction of Burgesses. Also during the time of Parliament, those priviledges of the House of Commons, of freedom of Speech, Power to punish their own Members, to examine the Proceedings and Demeanour of Courts of Justice and Officers, to have access to the King's Person, and the like, are not due by a∣ny

Natural Right, but are derived from the Bounty or Indulgence of the King, as appears by a solemn Recognition of the House; for at the opening of the Parliament, when the Speaker is pre∣sented to the King, he, in the behalf and name of the whole House of Commons, humbly craves of His Majesty, That He would be pleased to grant them their Accustomed Liberties of freedom of Speech, of access to his Person, and the rest. These Priviledges are granted with a Condition implyed, That they keep themselves within the Bounds and Li∣mits of Loyalty and Obedience; for else why do the House of Commons in∣flict punishment themselves upon their own Members for transgressing in some of these points; and the King, as Head, hath many times punished the Members for the like Offences. The Power which the King giveth, in all his Courts, to his Judges or others to punish, doth not ex∣clude Him from doing the like, by way of Prevention, Concurrence, or Evocati∣on, even in the same point which he hath given in charge by a delegated Power; for they who give Authority by Com∣mission, do always retain more than

they grant: Neither of the two Hou∣ses claim an Infallibility of not Erring, no more than a General Council can. It is not impossible but that the greatest may be in Fault, or at least Interested or Engaged in the Delinquency of one par∣ticular Member. In such Cases it is most proper for the Head to correct, and not to expect the Consent of the Members, or for the Parties peccant to be their own Judges. Nor is it needful to confine the King, in such Cases, within the Circle of any one Court of Justice, who is Su∣preme Judge in all Courts. And in rare and new Cases rare and new Remedies must be sought out; for it is a Rule of the Common Law, In novo Casu, novum Remedium est apponendum: and the Sta∣tute of Westminst. 2. cap. 24. giveth Power, even to the Clarks of the Chan∣cery, to make New Forms of Writs in New Cases, lest any man that came to the King's Court of Chancery for help, should be sent away without Remedy: A President cannot be found in every Case; and of things that happen seldom, and are not common, there cannot be a Common Custom. Though Crimes Exorbi∣tant do pose the King and Council in find∣ing

a President for a Condigne Punish∣ment, yet they must not therefore pass unpunished.

I have not heard that the people, by whose Voices the Knights and Burgesses are chosen, did ever call to an account those whom they had Elected; they nei∣ther give them Instructions or Directi∣ons what to say, or what to do in Parlia∣ment, therefore they cannot punish them when they come home for doing amiss: If the people had any such power over their Burgesses, then we might call it, The Natural Liberty of the people, with a mischief. But they are so far from punishing, that they may be punish∣ed themselves for intermedling with Parliamentary Business; they must on∣ly chuse, and trust those whom they chuse to do what they list; and that is as much liberty as many of us deserve, for our irregular Elections of Burgesses.

(15) A fourth point to be consider'd, is, that in Parliament all Statutes or Laws are made properly by the King a∣lone, at the Rogation of the people, as His Majesty King James, of happy me∣mory,

affirms in His true Law of free Mo∣narchy; and as Hooker teacheth us, That Laws do not take their constraining force from the Quality of such as devise them, but from the Power that doth give them the Strength of Laws: Le Roy le Veult, the King will have it so, is the Interpretive Phrase pronounced at the King's passing of every Act of Parliament: And it was the ancient Custom for a long time, till the days of Henry the Fifth, that the Kings, when any Bill was brought unto them, that had passed both Houses, to take and pick out what they liked not, and so much as they chose was En∣acted for a Law: but the Custom of the later Kings hath been so gracious, as to allow always of the entire Bill as it hath passed both Houses.

(16) The Parliament is the King's Court, for so all the oldest Statutes call it, the King in his Parliament: But neither of the two Houses are that Su∣preme Court, nor yet both of them to∣gether; they are only Members, and a part of the Body, whereof the King is the Head and Ruler. The King's Go∣verning of this Body of the Parliament

we may find most significantly proved both by the Statutes themselves, as also by such Presidents as expresly shew us, how the King, sometimes by himself, sometimes by his Council, and other∣times by his Judges, hath over-ruled and directed the Judgments of the Houses of Parliament; for the King, we find that Magna Charta, and the Charter of Forrests, and many other Statutes about those times, had only the Form of the Kings Letters-Patents, or Grants, under the Great Seal, testifying those Great Liberties to be the sole Act and Bounty of the King: The words of Magna Charta begin thus; Henry, by the Grace of God, &c. To all Our Arch-Bishops, &c. and Our Faithful Subjects, Greeting. Know ye, that We, of Our meer free-Will, have granted to all Free-men these Liberties. In the same style goeth the Charter of Forrests, and other Sta∣tutes. Statutum Hibernioe, made at West∣minster, 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard, Son of Maurice, Justice of Ireland. The Sta∣tute de anno Bissextili begins thus, The King to His Justices of the Bench, Greet∣ing, &c. Explanationes Statuti Glocestrioe,

made by the King and his Justices only, were received always as Statutes, and ••re still Printed amongst them.

The Statute made for Correction ••f the 12 th Chapter of the Statute of ••locester, was Signed under the Great ••eal, and sent to the Justices of the ••ench, after the manner of a Writ Pa∣••••nt, with a certain Writ closed, dated ••y the Kings Hand at Westminster, re∣••iring that they should do, and Execute •••• and every thing contained in it, al∣though the same do not accord with the ••atute of Glocester in all things.

The Statute of Rutland, is the Kings ••tters to his Treasurer and Barons of his ••cchequer, and to his Chamberlain.

The Statute of Circumspecte Agis ••••s, The King to his Judges sendeth ••eeting.

There are many other Statutes of the ••he Form, and some of them which •• only in the Majestique Terms of, The ••g Commands, or, The King Wills, or, •• Lord the King hath established,

or, Our Lord the King hath ordained: or His Especial Grace hath granted: With∣out mention of Consent of the Com∣mons or People; insomuch that some Statutes rather resemble Proclamations than Acts of Parliament: And indeed some of them were no other than mee•• Proclamations; as the Provisions of Mer∣ton, made by the King at an Assembly o•• the Prelates and Nobility, for the Cor∣nation of the King and his Queen Eleano•• which begins, Provisum est in C••ria Do∣mini Regis apud Merton. Also a Provision was made 19. Hen. 3. de Assisa ultimoe Pr••∣sentationis, which was continued and al¦lowed for Law, until Tit. West. 2. an. 13. E•••• 1. cap. 5. which provides the contrary i•• express words: This Provision begins, Pr••∣visum fuit coram Dom. Rege, Archiepiscopi•• Episcopis, & Baronibus, quod, &c. It see•• Originally the difference was not gre•••• between a Proclamation and a Statut•• this latter the King made by Comm•••• Council of the Kingdom. In the form he had but the advice only of his gre•••• Council of the Peers, or of his Priv•••••• Council only. For that the King had great Council, besides his Parliament, a••¦pears by a Record of 5. Hen. 4. abo••••

an Exchange between the King and the Earl of Northumberland: Whereby the King promiseth to deliver to the Earl Lands to the value, by the advice of Par∣liament, or otherwise by the Advice of his Grand Council, and other Estates of the Realm, which the King will Assemble, in case the Parliament do not meet.

We may find what Judgment in la∣ter times Parliaments have had of Pro∣clamations, by the Statute of 31. of Hen. Cap. 8. in these Words, Forasmuch as the King, by the advice of his Council, hath set forth Proclamations, which ob∣stinate Persons have contemned; not consi∣dering what a King by his Royal Power may do: Considering that sudden Causes and Occasions fortune many times, which do require speedy Remedies, and that by a∣biding for a Parliament, in the mean time might happen great prejudice to en∣sue to the Realm: And weighing also, that his Majesty, which by the Kingly and Re∣••al Power given him by God, may do ma∣ny things in such Cases, should not be dri∣••en to extend the Liberties, and Supre∣••ity of his Regal Power, and Dignity, by

willfulness of froward Subjects: It is there∣fore thought fit, that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People, and defence of his Royal Dignity as necessity shall require.

This Opinion of a House of Parlia∣ment was confirmed afterwards by a Second Parliament, and the Statute made Proclamations of as great validity, as if they had been made in Parliament. This Law continued until the Govern∣ment of the State came to be under a•• Protector, during the Minority of Edward the Sixth, and in his first year it was Repealed.

I find also, that a Parliament in the 11th year of Henry the Seventh, did so great Reverence to the Actions, or Or∣dinances of the King, that by Statut•• they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damne•• and Annulled for ever.

Mr. Fuller, in his Arguments against

the proceedings of the High-Commissi∣on Court, affirms, that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects, was made without the Assent of the Commons, because they are not mentioned in the Act. If this Argu∣ment be good, we shall find very ma∣ny Statutes of the same kind, for the Assent of the Commons was seldom mentioned in the Elder Parliaments. The most usual Title of Parliaments in Edward the 3d, Rich. 2. the three Hen∣ries 4. 5. 6. in Edw. 4. and Rich. 3. days, was: The King and his Parliament, with the Assent of the Prelates, Earles, and Barons, and at the Petition, or at the special Instance of the Commons, doth Or∣dain.

The same Mr. Fuller saith, that the Statute made against Lollards, was with∣out the Assent of the Commons, as ap∣pears by their Petition in these Words, The Commons beseech, that whereas a Statute was made in the last Parliament, &c. which was never Assented nor Granted ••y the Commons, but that which was done ••herein, was done without their Assent.

(17.) How far the Kings Council hath directed and swayed in Parliament, hath in part appeared by what hath been al∣ready produced. For further Evidence, we may add the Statute of Westminster: The first which saith, These be the Acts of King Edward 1. made at His First Parliament General, by His Council, and by the assent of Bishops, Abbots, Priors, Earles, Barons, and all the Commonalty of the Realm, &c. The Statute of Bygamy saith, In presence of certain Reverend Fa∣thers, Bishops of England, and others of the Kings Council, for as much as all the King's Council, as well Justices as others, did agree, that they should be put in Wri∣ting, and observed. The Statute of Acton Burnell saith, The King, for Himself, and by His Council, hath Ordained and Established.

In Articuli super Chartas; when the Great Charter was confirmed, at the Re∣quest of his Prelates, Earls and Barons we find these Passages. 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the King Right, &c. 2. And notwithstanding all these things before-mentioned, or any part

of them; both the King and his Council, and all they that were present at the making of this Ordinance, will and intend that the Right and Prerogative of his Crown shall be saved to him in all things. Here we may see in the same Parliament the Char∣ter of the Liberties of the Subjects con∣firmed, and a saving of the Kings Preroga∣tive: Those times neither stumbled at the Name, nor conceived any such An∣tipathy between the Terms, as should make them incompatible.

The Statute of Escheators hath this Title, At the Parliament of our Soveraign Lord the King, by his Council it was agreed, and also by the King himself commanded. And the Ordinance of Inquest goeth thus, It is agreed and Ordained by the King himself, and all his Council.

The Statute made at York, 9. Ed. 3. saith, Whereas the Knights, Citizens, and Burgesses desired our Soveraign Lord the King in his Parliament, by their Petition, that for his Profit, and the Commodity of his Prelates, Earls, Barons, and Com∣mons, it may please him to provide reme∣dy; our Soveraign Lord the King desiring

the profit of his people by the assent of his Prelates, Earles, Barons, and other No∣bles of his Council being there, hath ordain∣ed.

In the Parliament primo Edwardi the Third, where Magna Charta was con∣firmed, I find this Preamble, At the Re∣quest of the Commonalty by their Petition made before the King and His Council in Parliament, by the assent of the Prelates, Earles, Barons, and other Great Men As∣sembled, it was Granted.

The Commons presenting a Petition unto the King, which the King's Coun∣cil did mislike, were content thereupon to mend and explain their Petition; the Form of which Petition is in these words, To their most redoubted Soveraign Lord the King, praying the said Commons, That whereas they have pray'd Him to be dis∣charged of all manner of Articles of the Eyre, &c. Which Petition seemeth to His Council 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, which should fall in Disinherison of

Him or His Crown perpetually, as of Es∣cheators, &c. but of Trespasses, Misprisi∣ons, Negligences, and Ignorances, &c.

In the time of Henry the Third, an Order or Provision was made by the King's Council, and it was pleaded at the Common Law in Bar to a Writ of Dower. The Plantiffs Attorney could not deny it, and thereupon the Judgment was ideo ••sine die. It seems in those days an Or∣der of the Council-Board was either par∣cel of the Common-Law or above it.

The Reverend Judges have had regard in their Proceedings, that before they would resolve or give Judgment in new Cases, they consulted with the King's Privy Council. In the Case of Adam Brab∣son, who was assaulted by R. W. in the presence of the Justices of Assize at West∣minster, the Judges would have the Ad∣vice of the Kings Council: For in a like Case, because R. C. did strike a Juror at Westminster which passed in an Inquest a∣gainst one of his Friends, It was adjudg∣ed by all the Council that his right hand should be cut off, and his Lands and Goods forfeited to the King.

Green and Thorp were sent by Judges of the Bench to the Kings Council, to de∣mand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amend∣ed in a Writ; and it was answered, that a Word may well be amended, although the Statute speak but of a Letter or Syl∣lable.

In the Case of Sir Tho. Oghtred, Knight, who brought a Formedon against a poor Man and his Wife; they came and yield∣ed to the Demandant, which seemed su∣spitious to the Court, whereupon Judg∣ment was stayed; and Thorp said, That in the like Case of Giles Blacket, it was spo∣ken of in Parliament, and we were com∣manded, that when any like Case should come, we should not go to Judgment with∣out good advice: therefore the Judges Conclusion was, Sues au Counseil, & com∣ment ils voillet que nous devomus faire, nous volume faire, & auterment nient en cest case. Sue to the Council, and as they will have us to do, we will; and otherwise not in this Case.

(18.) In the last place, we may consi∣der how much hath been attributed to the Opinions of the Kings Judges by Par∣liaments, and so find, that the Kings Coun∣cil hath guided and ruled the Judges, and the Judges guided the Parliament.

In the Parliament of 28. Hen. 6. The Commons made Suit, That William de la Poole, D. of Suffolke, should be com∣mitted to Prison, for many Treasons and other Crimes. The Lords of the Higher House were doubtful what Answer to give, the Opinion of the Judges was demanded. Their Opinion was, that he ought not to be committed, for that the Commons did not charge him with any par∣ticular Offence, but with General Reports and Slanders. This Opinion was allow∣ed.

In another Parliament, 31. Hen. 6. (which was prorogued) in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damma∣ges, in an Action of Trespass, and was committed to Prison in Execution for the same. When the Parliament was re-as∣sembled, the Commons made suit to the King and Lords to have their Speaker delivered; the Lords demanded the

Opinion of the Judges, whether he might be delivered out of Prison by priviledge of Parliament; upon the Judges an∣swer it was concluded, That the Speaker should still remain in Prison, according to the Law, notwithstanding the priviledge of Parliament, and that he was the Speaker: Which Resolution was declared to the Commons by Moyle, the King's Serjeant at Law; and the Commons were com∣manded in the Kings Name, by the Bi∣shop of Lincolne, (in the absence of the Arch-bishop of Canterbury, then Chan∣cellour) to chuse another Speaker.

In septimo of Hen. 8. a question was moved in Parliament, Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes. There Sir John Fineux, and the other Judges, deli∣vered their Opinion, That they might and ought to be: and their Opinion was allowed and maintained by the King and Lords, and Dr. Standish, who before had holden it; the same Opinion was delivered from the Bi∣shops.

If a Writ of Errour be sued in Parlia∣ment upon a Judgment given in the Kings

Bench, the Lords of the higher House alone, (without the Commons) are to ex∣amine the Errours; the Lords are to proceed according to Law, and for their Judgment therein they are to be inform∣ed by the advice and counsel of the Judg∣es, who are to inform them what the Law is, and so to direct them in their Judgment; for the Lords are not to follow their own Opinions or Discretions otherwise. So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield, against the Prior and Covent of Newton-Panel, as appeareth by Record. See Flower Dew's Case, P. 1. H. 7. fol. 19.

FINIS.