Justice vindicated from the false fucus [i.e. focus] put upon it, by [brace] Thomas White gent., Mr. Thomas Hobbs, and Hugo Grotius as also elements of power & subjection, wherein is demonstrated the cause of all humane, Christian, and legal society : and as a previous introduction to these, is shewed, the method by which men must necessarily attain arts & sciences / by Roger Coke.

THE THIRD BOOK.

CHAP. I. Of Subjection.

1. IT is observed by a Writer, that our Sa∣viour * 1.1 in communicating the Cup to his Disciples, as if he had foreseen that it would be detained from the Laity, gave it in these words, Drink ye all of it; whereas in partaking of the Bread he said only, take, eat, &c. I am sure it is well worth the observation, that the Holy Ghost as foreseeing the great abuses which should happen in the world, by the specious pretences of Religion, Conscience, the Power of the People or Parliaments, &c. com∣mands Subjection to Higher Powers, not in certain cases, but absolutely; and not certain persons, but every Soul is to be Subject to the Higher * 1.2 Powers.

2. I say, Supream or Regal Power being from God immediately by * 1.3 the Law of Nature, it does necessarily follow that subjection of Subjects to their Soveraign is due by the Law of Nature; nor can the relations be dissolved but by God himself. I may, I think, without any affectation, affirm, that the Judges in Calvins case were as learned and upright as ever any be∣fore, or since; let us therefore see their resolutions.

3. Those learned and upright Judges resolve tit. Ligeance. Ligeance * 1.4 is a true and faithfull Obedience of the Subject due to his Soveraign. This Ligeance and Obedience is an incident inseparable to every Subject; for as

soon as he is born, he owes by birthright Ligeance, and Obedience to his Soveraign; Ligeantia est vinculum fidei, & quasi essentia Legis, and a little after page 5. Ligeance does not begin by the Oath of the Leete; For many men owe true Ligeance, who were never sworn in the Leete. (Where note it is false, if not Treasonable in Mr. Hobbs, who affirms that the Knowledg [Note.] of the Legislator does depend upon the Citizen: For every man, is as much a subject before he hath taken the Oath of Aligeance, as af∣ter.) And see whatsoever is due by the constitution of man may be * 1.5 altered; but natural Ligeance of the Subject to his Soveraign cannot be al∣tered; ergo, natural Ligeance, or Obedience to the Soveraign is not due by the Law or constitution of man. And again, whatsoever is due by the Law of Nature cannot be altered, but Ligeance and Obedience of the Subject to the Soveraign, is due by the Law of Nature, ergo; it cannot be altered. Et qui abjurat regnum, amittit regnum, sed non regem; amittit patriam, sed non patrem * 1.6 patriae.

4. Ligeantia ac quisita, or Denization is threefold, First, absolute to them * 1.7 and their heirs. Secondly limited, as when the King does grant Letters of Denization to an Alien, and the Heirs Males of his body, or for life. The third is, when the King by Conquest conquers another Kingdom, or part of it, the Antenati & Postnati are Denizens of the Kingdom, or Dominion so conquered. Yet sure under correction, the Postnati are not only Denizens but Natural Subjects. For Power and Subjection being by the Law of Na∣ture, all men born in the Dominion of any Soveraign, are his Natural Subjects; and with this does Sir Ed. Coke agree. If a man come into England, and have issue two Sons, these two Sons are Indigend Subjects born, because they * 1.8 are borne within the Realm, that is in the Dominion of the King; but if any be borne out of the Realm, that is out of the Dominion of the King (although of Natural Subjects to the King) they are alienigena. They therefore who are Postnati in the exercise of the Kings power by Conquest, are his natural Subjects.

5. Local Ligeance is, when any Subject of France is in England, or any English in France, &c. so long as he is in the power of the King, he is de * 1.9 facto, his Leigeman. Therefore a Frenchman being in England, joyned with divers Subjects of this Realm in Treason against the King and Queen, and the indictment concluded contra ligeantiae suae debitum; For he owed the King a Local Obedience; but if he have issue here, that issue is a Natural born Subject, and it is not caelum nec solum, neither clymate nor soyle, but Ligeantia which makes a natural Subject; and therefore if Enemies possess any fort, &c. the issue borne there is no Subject of the Kings, by as much reason those Subjects borne after Conquest by any King of England, are his Natural Subjects.

6. Legal Ligeance is, when at suit of the King, the Subject takes the Oath of Ligeance to the King, which is; You shall sweare that from this day * 1.10 forward you shall be true and faithful to our Soveraign the Lord King Charles his Heirs, and truth and faith shall beare of life, and member, and Terrene honor, and you shall neither know nor heare of any ill or damage intended unto him, that you shall not defend, so help you Almighty God. The sub∣stance and effect hereof is due by the Law of Nature, ex institutione natura; the form and addition of the Oath is ex previsione hominis. In this Oath five things are observed.

1. For the time, it is indefinite and without limit, from this day forward. * 1.11

2. Two excellent things are required, that is, to be true and faithful. 3. To whom? To our Soveraign Lord the King and his heirs. 4. In what manner? And faith and troth shall bear &c. of life and member, that is, until the letting out of the last drop of our dearest blood. 5. Where, and in what places ought these things to be done? In all places whatsoever; for, You shall neither know nor hear of any ill or damage &c. that you shall not defend &c. So as Natural Ligeance is not circumscribed within any place.

7. Subjection, as well as Regality, being by the Law of Nature; Quae * 1.12 Deus conjunxit, nemo separet. And let no man or men ever think to mend what God hath made: For besides the innocent blood which will be shed, besides the rapine, plunder, sacrilegious profaning of all sacred things in the mending, if God in his judgments doth permit seditious men to prosper in their wickedness, so as they suppose they have attained their Ends; yet their Ends never end in peace among themselves: For, abstracting from the general fear common to them all, of the right Heirs recovering his right; it cannot be expected that all Competitors will be pleased; some will think others too great, none will think themselves great enough; They them∣selves have made a president to evade all subjection and obedience to Laws and Government, by pretending Liberty and Reformation: So that after so much bloodshed, what can be expected but the shedding of more, with∣out ever hoping to have an end? Well therefore says Sir Edward Coke: * 1.13

Peruse over all our Books, Records and Histories, and you shall find a principle in Law, a rule in Reason, and a trial in Experience, That Treason does ever produce fatal and final destruction to the Offender, and never attaineth to the desired end, (two incidents inseparable thereunto:) And therefore let all men abandon it, as the most poisonous bait of the Devil of Hell; and follow the precept of holy Scripture, Fear God, honor the King, and meddle not with the seditious.

But it may be objected, That though Subjects Allegiance be natural, [Object. 1] or due by the Law of Nature; yet since there cannot be any visible power under Heaven, which can judge between an Usurper and rightful Prince, what rule have Subjects to direct them to whom they owe their subjection or obedience?

Sol. It is true, there is no visible Power under Heaven which can judge be∣tween an Usurper and rightful Prince, but the Consciences of men: Yet being natural, a man may as well ask how a man shall know whether every Being be of less excellency then the Cause of its being? or that things equal to a third, are equal to one another? I am confident that (where the con∣fusion was not made by Popular rage and usurpation) since the begin∣ing of the world, God did scarce ever leave men so destitute, but they were morally certain to whom they did owe their Topical and Natural obedience.

But if Regal power be the Ordinance of God, and Primogeniture be [Object. 2] preferred by the Law of Nature; then can there be but one rightful King in all the world, and he the first-born from Adam; which no man can believe.

Answ. I answer, That though Primogeniture be preferred by the Law of Nature, and immutable by the will of Man; yet is not God subject there∣unto, but before the Flood, he rejected Cain, though the first-born of Adam,

and made him a Vagabond, and none of the Patriarchs. So in the first age after the Flood, God subjected Canaan, although the son of Ham, Japhets elder brother, to Japhet: And so did God prefer Jacob before Esau, and * 1.14 Ephraim before Manasses, and Solomon before Adonijah: Yet where and when God did not reveal himself to Man otherwise, was ever Primo∣geniture preferred. Nor can it in reason be expected, that God should be so cruel a Taskmaster to require subjection upon penalty of Damnation, if it were not evident to whom this subjection were due. It is sufficient that Subjects pay their obedience to him, against whose title no just or superior title can be taken. Yet is not this subjection always to be understood of active subjection; For no man is bound (Government being intended for mans preservation, not destruction) actually, so to submit to rightful Governors, that he be morally certain of destruction therefore: Yet ought every man rather to suffer death, then actually to renounce or resist rightful Governors, to whom by the Law of Nature they owe obedience.

[Quaere.] 8. But suppose there be such a succession from an Usurper, that not only the Heir to the Usurper, but all men in his Government were born Subjects to him and his Ancestors from whom he is descended; as in the time of Henry 6. when all men were born either in subjection to him, his Father or Grandfather, (who had no colour or title to the Crown) whether in such case may Subjects so born assist such a Prince against the right Heir? I say, I pray God avert the like from ever being again in the English Nation! 'Tis true, the right Heir hath a just title of war against such a Prince: but whether Subjects so born (their being so born, being no act of their will, but was caused by a higher cause, viz. the will of God) may actually assist him to whom they were so born in subjection, against him who hath the superior title, I leave to God and mens consciences.

9. But this Quaere can only have reference to Subjects who are born * 1.15 in Hereditary Monarchies; for in Aristocracies and Democracies there neither is, or ever was any original right or power in them, but their Con∣ventions do necessarily depend upon an antecedent act of them, or the major part of them, to meet at a certain time and place. Where therefore such Assemblies are dissolved sine die, they are totally dissolved, however this dissolution happens; nor does any man owe them obedience any longer, but his or their title who next possesseth, is good enough against them and all others who cannot make a superior or more just claim. Nor can this have any reference to men born in Elective Monarchies; for, the Election depending upon the wills of men, viz. the Electors, (who originally had no right of Election) any Possession brought in against such Election by the will of man, is title equivalent to it; nor do Subjects in conscience owe obedience but to him who is possest, or can make a superior claim by a true descent from him against whom no just title can be taken.

10. Bodin in his Republique makes a Quaere, Whether it were better * 1.16 for Subjects ro be governed by few Laws, with a reservation in the breast of the Judge, or some special Court, to redress extraordinary abuses, which cannot be comprehended in the Laws; or so to multiply Laws, that no man should be punished, where he could evade the Laws? And determines for the former; and the reason he gives, is, That Laws, be they never so many, are finite, but mens actions are infinite; and therefore though never so many Laws be made, yet may men find evasions out of them to abuse and

wrong other men, whereby this multiplicity of Laws will rather ensnare other men, than avoid the end for which they were intended. It is a folly much incident to Englishmen, that they place not only Freedom in serving many Masters, but Liberty in many Laws. Let any man take a survey of the Statute-Laws and Ordinances made since Henry the Eighth his disso∣lution of Monasteries, to this year 1660. and see if they be not four times more than all the Acts made before, only to the liberty of the Lawyers Fees, for the ensnaring of the Subjects; it being no doubt the greatest liberty of the Subject to be governed by few Laws, and these the same in all places, if it were possible.

11. The power of Parents being from the law of nature, Childrens * 1.17 subjection to them is due from the law of nature. Solon having written the Athenian laws, being asked why he did decree no punishment upon him who should kill his Parent, answered, There was no man so detestable as to think to do such an act. He therefore did wisely not to make any law against that which was never heard of, lest by doing so, he should not so much forbid, as admonish Children to it. And what a curse did Canaan con∣tract upon himself, for but discovering his Fathers nakedness? Gen. 9. 25. And no question, Gods blessings and cursings are never more efficaciously pronounced, than out of the mouths of Parents; And, To honor thy father and mother, is the first Precept to which there is a promise of reward an∣nexed, viz. That thy days may be long in the land, &c.

12. Although the power of Masters over their Servants be created by * 1.18 positive humane laws; and therefore subjection of Servants to their Masters, is caused by humane laws: Yet does not this exclude the obedience and subjection which is due from Servants to their Masters by the law of nature, and Divine positive laws; but Divine laws do include the subjection due from Servants to their Masters, in thesi or general, and the laws of every Country, ex hypothesi or particular: As, Thou shalt not steal, is from the law of Nature; but that the doing of such a thing is Theft, depends upon the particular laws or usages of every Nation. And no question but Servants generally, when the Apostles wrote, were no other than Slaves, over whom their Masters had not only absolute dominion of whatsoever was theirs, but also power of life and death, and that by no consent or submission of theirs. And if such Servants ought to count their Masters worthy of all honor, how * 1.19 much more ought Servants to thank God, and willingly to serve and honor such Masters, who not only command over them not against their consents, but also command such things as they may easily perform?

13. Although this subjection be last in expression, yet it is first in * 1.20 intention: For if this subjection or obedience had not been due, before any obedience to Temporal commands; how could the Primitive Christi∣ans have met in dens and caves, in daily Prayers, and Breaking of bread, whenas Temporal powers did not only not permit, but forbid it? Nor did God ever shew such terrible vengeance upon any disobedience and pre∣sumption, as he did upon Corah, Dathan and Abiram, Num. 16. and their Competitors, although their pretences were very fair (forsooth) That all the multitude were holy, every one among them, and the Lord was among them, and Moses and Aaron did lift up themselves against the congregation of the Lord; They, though none of the tribe of Levi nor separated persons, could offer sacrifice and burn incense to the Lord, as well as Aaron or any

Priest. And no doubt but spiritual crimes are in their kind much worse and displeasing to God, than carnal, whatsoever offenders do pretend: And let us see what manner of men these pretended Reformers are which teach otherwise, and consent not to the wholsom words, even to the words of our Lord Jesus Christ, and to the doctrine which is according to godliness; They are proud, knowing nothing, but doting about questions and strife of words, * 1.21 from whence cometh envy, strife, railings, evil surmisings, perverse disputings of men of corrupt minds and destitute of the truth, supposing that gain is godliness, from such withdraw thy self: O my soul, enter not into their secrets.

14. In all Humane Society, or Society which is created by the law of * 1.22 Nature, viz. of Supreme Powers and Subjects, of Husband and Wife, of Parents and Children, the relations are indissolvible only by God, in those individual persons in whom the offices are; nor can they be aliened, trans∣ferred either by any act of themselves or any power else. All Society created by Humane laws, or Legal Society, is alienable not only by the act of God, and by the Laws which created it; for, Unumquodque dissolvi potest eo ligamine quo ligatum est: But also by the act of the Master and Servant; for, Omnis consensus tollit errorem. Christian Society does differ from either Humane or Legal; for though the cause of Christian power be by Divine positive institution, and therefore incommunicable or alienable; yet after it pleased God that Kings should be nursing fathers, and Queens nursing mothers to his Church, the exercise, endowment, priviledges and immu∣nities of Christian power is of positive humane institution. The obedience therefore or subjection due to them who have oversight over us in the Lord, is not formally due to such Bishops and Priests who have once had the oversight over us, but to such Bishops and Priests who are legally con∣stituted to exercise the jurisdiction or function in such Dioceses or Parishes where they are so constituted; which exercise is alienable or transferrible, though not at the will of the Incumbent, yet at the will of Supreme powers, and legally at the will of the Donor.

CHAP. II. Of Inheritance and Succession.

1. NO humane law, can create a humane right; Jura sanguinis nullo jure * 1.23 civili dirimi possint: Nor is this right of succession from Divine positive laws, but observed as well where Gods revelation of him∣self is not received, as where it is. And if according to the resolution of all the most learned and reverend Judges in Calvin's Case, subjection is from no humane law, but from the law of nature, Then of necessity must Regal right and inheritance be from the law of nature; for no man supposeth subjection, where he does not presuppose power. The Will therefore of Henry the Eight, where for want of issue of Edward, Mary and Elizabeth, he gives the English Monarchy to the issue of Frances and Elianor, daughters of Mary his younger sister, before the right heirs of Margaret his eldest sister wife of James the Fourth of Scotland, was void and not to be allowed; and so was that of Edward the Sixth, who did disinherit his sisters Mary and

Elizabeth, and gave the Crown to Jane daughter of Frances the French Queen aforesaid by Charles Brandon Duke of Suffolk; and so were the Acts of Parliament made by H. 4. 5. and 6. which entailed the Crown upon their Heirs; so was the Acts of the last of Henry the 6. which entailed the Crown upon him, and the heirs males of his body, and so were the Acts of the first of Rich. 3. and H. 7. which entailed the Crown upon them and their heirs. Neither is succession and inheritance of Crowns declared by any hu∣mane Law in the world that I know of, but only the pretended French Salique Law, which we shall examine afterwards.

2. None but God can make an Heire to a Crown; solus Deus haeredem * 1.24 facere potest, non homo. Co. Lit. Sect. 7. And this Heire which Sir E. Co. here speaks of, is but heire in fee to Lands or Tenements, according to common Law or Custom; if then only God can make such an Heire, then sure none but God can make an Heire, which makes humane Laws, and permits Customes.

3. It is not only humane Laws, which say a bastard is filius terrae, & * 1.25 quasi nullius filius: Et qui ex damnato coitu nascuntur, inter liberos non compu∣tentur: but God calls Isaac Abrahams only Son, although at the same time Abraham had his Son Ismael by Hagar, his Handmaid or Concubine. And Abraham gave all he had to Isaac, but to the Sonns of the Concubins which Abraham had, he gave gifts. Gen. 25. 5, 6. So though Ismael were Isaacs el∣der brother, yet in comparison of Isaac born in wedlock, God himself did not account him Abrahams Son. Nor can one instance be given, that ever by Gods either command or permission, any born out of marriage did inhe∣rit. By the Law therefore of God, aswell as humane Law, none can in∣herit which are born out of matrimony.

4. That which no humane Law prescribes, and yet is observed by all * 1.26 men generally in all ages, is from the Law of Nature; But no humane Law prescribes the male to inherit before the female in regality, yet it is obser∣ved by all men generally; therefore that the issue male shall inherit before the female in regality, is from the Law of Nature.

5. If primogeniture had not been a sacred thing, and inheritance an∣nexed * 1.27 to it by the Law of Nature, then could not Esau have been pro∣nounced a prophane person for selling his birthright, Heb. 12. 16. although he did it to save his life, Gen. 25. 34. but being due by the Law of Nature, I say, Esau by his sale could not transfer it to Jacob; yet because Esau did despise it. Gen. 25. 34. it was just with God to transfer it to Jacob; neither can it be shewed any where in sacred writ, but that alwaies primogeniture in royal descent, was a good title where God did not interpose.

6. Only the King can inherit and succeed, because his Royal capacity is * 1.28 affixed and inseparable with his person. In the Oath therefore of Ligeance, Subjects swear to beare faith to the King, his Heirs and Successors; but no Subject can both inherit and succeed, because there is no succession can be affixed to the person of any Subject, by vertue of inheritance. All Cor∣porations therefore do not descend by inheritance, but are acquired, as they are nominated or elected in such manner as is granted by the King or supream power.

7. There are but two waies by which hereditary or successive Monar∣chies * 1.29 do descend; the one is Lineal descent, the other Lineal, Agnatical, Cognatical or Collateral; or as we say, the one descends to the heire general,

the other to the heire male. This latter by vertue of a Salique law takes place only in France; we will therefore see what may be said and objected against the former, and how the latter hath been observed in France, and of what Authority it is.

8. That cannot be against the Law of God, which he has owned and * 1.30 given a blessed president of; but that God has owned Gynaecocraty, and that in a great and miraculous delivery of his own people, is evident in Deborah; And that Women may inherit, when the daughters of Zelophehad made their plea for their inheritance, Numb, 27. They first pleaded negatively, Our Father was not of the company of them that gathered themselves against the Lord in the company of Corah (which is a plain argument that rebellious Subjects have no property against supream powers, but forfeit their goods aswell as lives, for God saies ver. 7. the daughters of Zelophehad spake right;) why should the name of our father be done away from his family because he has no Son? And God himself saies, ver. 8, 9. 10. If a man dye and have no Son, then shall the inheritance pass to the daughter, and if he have no daughter, then shall the inheritance go to his brethren, and if he have no brethren, then ye shall give the inheritance unto his fathers brethren, &c. And that inheriting by the daughter when there is no Son, in Britain (consonant to the Law of God) is as old as any record we can find; when Voadicea led the Britans against the Romans, it was alwaies a thing observed among them. Neque enim sexum in imperiis discernunt: Tacit. Lip. in vita Agric. 457. * 1.31

9. Although Gynaecocraty be neither against the divine Law of God or Nature; yet it is only to be understood, that in regality the female shall in∣herit when she is the eldest sister, and lineally descended from the Ancestor which has no Heir male of his body lawfully begotten. For in Regality possessio fratris non facit sororem esse haeredem. But if a King or Queen by inhe∣ritance have issue by several venters or extractions, and by the latter a Son who does inherit, who dyes without issue; yet shall the Heir male de∣scended from the Father, although but of half blood to him, inherit before his sister; and the elder sister descended from the Father, shall inherit before his sister although she be of whole blood to him, from the reason aforesaid, and therefore Queen Mary and Eliz. although but of half blood to Ed. the 6. did inherit before the Queen of Scots, or the issue of the Queen Dowager of France by the Duke of Suffolk, Charles Brandon, although they were of whole blood to him; and thus much does Sir Ed. Coke testifie. * 1.32

10 Before we examine the authority and observance of the Salique Law, * 1.33 let us see the heinous charge which Monsieur Bodin brings against Gynaecocatry, * 1.34 cap. 5. lib. 6. pag. 738. de rep. He says, Gynaecocraty is inimicitious to the laws of Nature, which gives prudence, strength, magnanimity of mind, force to command, to Men, takes them away from Women.

Answ. A fine general charge, this! If I can form an argument out of it, this is it. All Government wherein prudence, strength, magnanimity &c. do not command, is inimicitious to the Laws of Nature: But in Gynaecocraty neither prudence &c. do command; Therefore Gynaecocraty is inimicitious to the Laws of Nature. Now the Major proposition requiring strength, prudence, and magnanimity in command, the Conclusion will be as strong against all Government, as Gynaecocraty; for he hath not defined what strength, prudence &c. is, nor who shall be Judge what it is; and so any man who will but deny that there is strength, prudence, &c. in the Gover∣nor,

may by the Laws of Nature not obey, nay it is against the Laws of Nature to obey. But in what case are all Pupil Kings? Sure the man in∣tended to make good Pepins and Hugh Capets Titles from this Proposition, against Childerick and Charls of Lorrain. But that which is most monstrous and impious, is, that it is inimicitious to the Laws of Nature for any Child to obey and honor his Mother, because she hath not prudence, magnanimity, and force of command.

The Law of God not only took from Women the Government of Common∣wealths, * 1.35 but also of Families, whenas he deservedly subjected them to the com∣mand of their Husbands. The argument out of this is: Whom God hath subjected to the command of their Husbands, cannot by the Law of God command in Families: But God hath subjected Women to the com∣mand of their Husbands; Therefore by the Law of God Women cannot command in Families.

Answ. Yes, such Women as never were married nor subject to their Husbands, may, granting the Major proposition. But I deny the Major proposition; for sure it is no where against the Law of God, for a Widow to govern her Family.

As often as God testifies that he will take terrible vengeance against the ene∣mies * 1.36 of his Name, he threatens them to be subject to commands and laws of Women; (for this he cites Isa. 8. although I cannot find any such thing there) as if that were the utmost of evils, and extremity of calamities.

Answ. That this is false, is evident by Gods miraculous delivery of the chil∣dren of Israel by the leading and command of Deborah. Besides, how can God command Women to command and give Laws, if it be against the Law of Nature? Which is all one to say, God does command against the Law of Nature, that is, his own Law.

The Roman Laws did seclude Women from all Civil offices, and Publique * 1.37 employments.

Answ. But though the Roman Laws did forbid it, yet if the Laws of France did not allow it, how came Blanch the wife of Lewis the Eighth, Katherine de Medici wife of Henry the Second, and Mary de Medici wife of Henry the Fourth, and Anne the Mother of the present King, to manage the Regencie of France, as imperiously during the minority of their Sons, as if they had been absolute Princes?

That in Gynarchy the Wife is not subject, but superior to her Husband. * 1.38

Answ. So heavy bodies will, against their nature, ascend to supply a Vacuity.

Answ. His sixth charge is an Invective against Vasti, Joan of Naples, called the * 1.39 Wolf, Athaliah, Cleopatra, Zenobia, Hirene, (As indeed, telling of stories is usually the greatest part of his reasoning; and that he will do so amply, that Scaliger justly reprehends him with making, not writing Histories.) Now if I should fall into the commendation of Ruth, Hester, Judith, Debo∣rah, &c. I am quit with him. It is true indeed, that 'tis a great blessing to any Nation, that God gives them a Masculine Heir, endued with all those qualities he speaks of: But when God doth give a Child, (which he pro∣nounceth a woe to that Nation, Eccles. 10. 16.) or a Female, Subjects must be content, and submit themselves to Gods pleasure: For in going about to alter what God hath done, they will make themselves in a much more woful condition; Nor could that be a judgment of God upon a Nation, to give

Fools, and Children, or Women for Heirs, if Subjects at pleasure might alter them and set up others in their stead.

11. The Salique Law took its name either from the Country Salia, * 1.40 or the River Sal, or from contraction of Si aliqua, so often mentioned in the Law.

12. There are three things observable in the Salique Law; the autho∣rity * 1.41 of it, the eternity of it, and the reason of it. For the authority of it, it was made by the Lord knows whom; for the eternity of it, it shall end the Lord knows when; and for the reason, De terra vero Salica nulla portio haereditalis mulieri veniat, sed ad virilem sexum, tota terrae haereditas per∣veniat. Bodin. de rep. p. 745.

13. For the authority of it, the learned do not agree by whom it was * 1.42 made, nor whether any French King ever made any such, or not. D'avila in the beginning of the first book of the Civil wars in France, recites the most probable conjecture, which is, That the French when they left their habitation to seek fresh quarters, sate down at the river Sala, (which di∣vides Misnia Westward from Turingia) and there forsooth did agree to choose themselves a King, and did make Constitutions which should be fundamental and unalterable ever after; and those Constitutions being made at the river Sala, are called Salique Laws.

14. There is no story of Guy of Warwick, Amadis de Gaule, or the Dun * 1.43 Cows rib, but is of as much authority and probability as this. For, can it be imagined that a company of Rogues and Thieves, going to rob and thieve at Gads-hill, should agree at Greenwich to make unalterable Laws for their government and succession, before they were possessed of any thing? and what they make their Laws of, is nothing but what they shall rob and cheat other men of.

15. But Bodin will not undertake to tell by whom, or when it was made, * 1.44 (it is strange you will say, that making up his discourse almost of Histories, he hath nothing to say for this) he only saies it is not new as many men think, but engraven in the most ancient tables of the Salians, in these words, De terra vero salica &c. ut supra: So Bodin names neither by whom, nor when, * 1.45 this Salique Law was made. Did ever man infer so fondly, that because the Salian women did not inherit, therefore the French Crown cannot de∣scend to women? But mark now if this be a consequence: The women of the Land of Salia do not inherit, and therefore no female can inherit the French Monarchy: then if the men of the Land of Salia, will alter this constitution, the descent of the French Monarchy is altered by an Act of the men of Salia; for, Cessante ratione legis, cessat lex; and sublata causa, tollitur effectus. In their contest with the Popes, the Kings of France say, they hold their Crown of God; whereas if Bodin says true, they hold it by a Law written in the Tables of the Salians. I can say no more for the authority of this Law, unless I should repeat the same things again, out of De Serres and other learned French Historians.

16. This Law cannot be altered by the King and Estates general. * 1.46 I had thought that only the Laws of Nature had been unalterable. It is a rule, that Unumquodque dissolvi potest eo ligamine quo ligatum est: And if this Salique Law be a constitution of Man, by that power which made it a con∣stitution, by that power it may be altered.

17. De terra vero Salica nulla portio haereditatis mulieri veniat, sed ad virilem * 1.47

sexum tota terrae hereditas perveniat: Now let any man that is in his wits, or understands any thing of the nature of a Law, judge whether there be any shadow of reason in this; For, a Law is the rule or direction of him who does govern, to be observed by them who are governed. How then can the Crown of France descend according to the customs of the Salians, if the French Crown be not subject to the men of Salia, and they had given the King and his successors this unalterable Law of not descending to the female? but where this country Salia should be, I could never find so much as the name in any Geographer or Historian, ancient or modern. Sure the Romans, so curious in searching and describing of Countries would not have overseen it, espe∣cially the Emperor Julian, warring so long in those parts of Germany, not above sixty years before they suppose Pharameund departs out of Salia, for to seek better quarters in Gaule.

18. The two main parts of the Salique Law are, That the Crown shall * 1.48 descend to the next heire male, and if the heire be ana infant, that the next Prince of the blood who is a Major, shall during his minority be his Guardian, and Regent. Yet Bodin is fearful that the Salique Law was not bar enough against our Ed. the third (being never before heard of, saies Hail••n) he saies, pag. 745. Whenas the controversie concerning the Crown of France, was between Philip Earl of Valoys and Ed. the third King of England, Philip defended the Salique Law by the Voconian, which ordained by the consent of the Fathers and Princes, that in that controversie no man should use the authority of forrain Lawes, but every one should study for his profit, the Salique Law. But when the question was 1563, whether Charles the ninth were a Major at fourteen years of Age currant or compleat, the Parliament of Paris would have taken upon them to decide it, when Charles sends them word, I do not mean that you should deale in any thing, but with the administration of good and speedie justice to my subjects; understand hereafter that you are not confirmed in your offices by me to be my Tutors or Protectors of my Realm, nor Governors of my City of Paris, as hitherto you have perswaded your selves. Besides, Charles the seventh Anno 1420. was adjudged to banishment, and unworthy to suc∣ceed in any of the signories of France by all the Courts of the Parliament of Paris. And so about 7 years since was the Prince of Condi; and so was Henry the forth by all the three Estates at the general assembly at Bloys, Anno. 1588. So that is is evident that this immutable Law, is not so inviolably kept by the French themselves, when it does not serve their turn. How should the Voconion Law oblige against Ed. the third, and not the Acts of Parliament of Paris, and general Assembly at Blois, oblige against Charles the seventh, and Henry the fourth? for, ubi eadem est ratio, ibi idem est jus.

19. There cannot be a more imprudent act, then to make any one Ward * 1.49 to him who is his next heire, especially to a Crown, which frees any one from all attainders; what then can be more imprudent then this part of the Salique Law, which gives the pupil King into the hands of the next heire, who murthering him, makes way for himself to the Kingship? By our Coun∣try Laws, no man could be Guardian to the person of a Ward, but the next of blood to whom the inheritance could not descend, But this part of the eternal Law has not of late been observed by the French Nation, whereas the contrary hath been, in the regencie of the Queen mothers, Blanch, the mother of St. Lewis, of Francis the second, Charles the ninth, Lewis the thirteenth, and Lewis the fourteenth.

20. Neither have the French better observed the other part of the * 1.50 Salique Law, for the descending of the Crown to the heirs male; for, Pepin having put King Childerick into a Monastery, had not any colour of title, but as he was chosen by the Parliament of Paris; so that it seems the Parliament of Paris may do what the King and general Assembly cannot, and alter the most fundamental constitutions of France, which forsooth at other times are immutable; and Hugh Capet to make his title good against Charles of Lorrain, the right Masculine heire of Pepin, did derive his pedigree from one of the daughters of Charlemain son of Pepin; Nor could Lewis the ninth (a most religious Prince) be resolved in conscience, till he was sa∣tisfied, that by his Grandmothers side he was descended from the right heirs of Charles of Lorrain. But I wonder with what face these Frenchmen can urge the Salique Law against others, and yet practise the contrary themselves; For Charles the eight having married Anne the Dutchess of Brittain (and by that title possessed the Dutchy) by whom he had Claude, married to Francis the first, who had issue Henry the second, who had issue Francis the second, Charles the ninth, Henry the third and Hercules, Elizabeth married to Philip the second of Spain, and Margaret married to Henry the fourth. Now Francis, Charles, Henry and Hercules dying without issue legitimate, I would know how against the Salique Law Charles and his posterity should have a title to Britain, and yet King Philip and his posterity be debarred of it by vertue of this pretended Salique Law.

CHAP. III. Of the Municipal Laws of England, before 1640.

1. TEmporal or Secular Laws are made to preserve men so long as * 1.51 they live in this world, in unity and peace one with another; and these do not bind in conscience only, but injoyn corporal and pecuniary mulcts for not observance, or transgressing them. The Municipal Laws of this Kingdom are either the Common Law, which are general usages of that long continuance, that they have quite lost their prime institution. That they were not brought in by the Conqueror, is most e∣vident, * 1.52 for the Conqueror swore to observe the good approved and anti∣ent Laws of this Kingdom; and that the Subjects might the better observe * 1.53 their duty, and the Conquerors Oath, he caused twelve the most discreet; and wise men in every shire throughout all England to be sworn before him∣self, that without swerving either ad dextram, or ad sinistram, they should de∣clare the integrity of their Laws, without concealing, adding, or in any sort varying from the truth; and Aldreb the Archbishop that crowned him, and Hugh the Bishop of London, by the Kings commandement wrote that which the Jurats had delivered, and these by Publick Proclamation he declared to be authentick, and under grievous punishment to be inviolably observed.

And that 441 years before the incarnation of Christ, Mulumutius, of * 1.54 some called Dunvallo M. of some Dovebant, did write two Books of the Laws of the Britans, the one called Statuta Municipalia, and the other Leges judici∣ariae,

which is as much as to say, the Statute-Law, and Common-Law. And 356 years before our Saviour, Mercia Proba Queen, and wife of King Gwintclin, wrote a book of the Laws of England in the British tongue, calling it Marchenleg. King Alfred, or King Alured, King of the West-Saxons, 871 years after Christ, wrote a book of the Laws of England, calling the same, Breviarum quoddam quod composuit ex diversis legibus Tro∣janorum, Graecorum, Britanorum, Saxonum, & Danorum.

In the year after our Saviour 653. Sigabert or Sigisbert, Orientalium Anglorum Rex, wrote a book, calling it, Legum instituta. King Edward of that name the third before the Conquest, ex immensa legum congerie, quas Britanni, Romani, Angli condiderunt, optima quaeque selegit, ac in unam coegit quam vocari voluit Communem legem. But whether these latter were the Laws which are now used in England, under correction may be question made, because the Authorities cited are from such obscure and uncertain Authors, that no great credit is to be given to them; nor are those Books (except Alfreds and Edwards, which are obsolete and out of use with us, and so have been these 600 years) any where to be found, whereby it may ap∣pear that they have any affinity with the Common-Law. But it does most certainly appear out of most authentical Records, that time out of mind, before the Conquest, there had been Sheriffs, for the Writ of Assise, and every other Original Writ, to whom they were directed, except to the Coroner in special cases, who stands in place of the Sheriff; and for Trials by the Oath of Twelve men; and that the Writs of Assise and other Ori∣ginal Writs were retornable into the Kings Courts, and that there had been a Court of Chancery for all Original Writs to issue out and none other; and that those Mannors that were in the hands of S. Edward the Confessor, are to this day called Ancient Demesne. All which does more copiously and fully appear in this Proeme to the Third Part of the Reports. And that the Chancery, Kings Bench, Common Pleas, the Exchequer, be all the Kings Courts, and have been time out of memory of man, so as no * 1.55 man knows which of them is antientest.

Afterward in the Proeme to the Ninth Part of his Reports, out of the Mirror of Justices, which treats how the Land was governed almost twelve hundred years since, having spoken of the Courts of Parliament, Chan∣cery, Kings Bench, Common Pleas, and the Exchequer, he descends to the Justiciarii Itinerantes, or Justices in Eire:

The Kings do right to all men by their Justices, Commissioners itinerant, assigned to have Conusance * 1.56 of all Pleas. In aid of such Eires, the Sheriffs Turns and View of Frankpledges are necessary, &c.

Then he treateth of the Sheriffs Turn;

That the Sheriffs, of antient * 1.57 Ordinance, do hold general Assemblies twice a year in every Hundred, whither all the Freeholders within the Hundred are bound to come by the service of their Feifs (or Fees) that is to say, once after Michaelmas, and another time after Easter, &c.

Leets or Courts of View of Frankpledge, are Assemblies ordained * 1.58 once a year, not only of Freeholders, but of all in the Hundred, as well Denizens as others (except Archbishops, Bishops, Abbots, Priors, and all Religious people and Clerks, Earls, Barons, Knights, Married women, Persons dumb and deaf, diseased, Bastards and Lepers, and those that are Deciners elswhere) to enquire of the offences personal, and of all the

circumstances, of offences done in those Hundreds, of the wrong done by the Kings or Queens ministers, and of the wrong done to the King and the Commonalty. But this ought not to be done by Bondmen or Women, but by the Oath of Twelve Freemen.

The County-Court: which the Sheriffs hold from moneth to moneth, * 1.59 or from five weeks to five weeks, according to the greatness or largeness of the County.

Of Court-Barons and Hundred Courts. * 1.60

The other mean Courts, are the Courts of every Lord of the Fee, &c. * 1.61 Courts of Pipowders. And that from day to day speedy Justice be done to Strangers in Fairs and Markets, as of Pipowders, according to the Law of Merchants.

Court of Admiralty. The King hath soveraign jurisdiction upon * 1.62 the Sea.

Courts of the Forrest. The Kings Ministers of his Forrests have * 1.63 power by authority of their office to swear men, without the Kings Writ, for safeguard of the peace, and the Kings right, and the common good, &c. He treats of the Professors of the Law, as Counters, who are Serjeants and Pleaders. Of Attornies, Of Ministers of Justice, as Viscounts, Coro∣ners, Escheators, Bailiffs of Hundreds, &c. And also by the antient Kings, Coroners were ordained in every County, and Sheriffs to keep the Peace when the Earls were absent from their charges, and Bailiff; in lieu of the Hundredors, &c.

Of the Prerogatives of the King; as of Deodands, Alienation to Aliens, Teeasure found, Wreck, Waif, Estray, Chattels of Felons and Fugitives, Honors, Hundreds, Soakes, Gaoles, Forrests, chief Cities, chief Ports of the Sea, great Manors. These held the first Kings as their right; and of the residue of the Land did enfeoff the Earls, Barons, Knights, Serjeants and others, to hold of the King by Services, provided and or∣dained for defence of the Realm. It was ordained, that the Knights Fee should come to the eldest by succession of heritage; and that Socage Fee should be partable between the Male-children, and that the Liege-Lords should have the Marriage.

He treateth in the first Chapter, of Crimes, and their divisions; of the crime of Majesty, of Fausonnery, of Treason, of Burning, of Homi∣cide, of Felony, of Burglary, of Rape, &c. In the second, of Actions, of Judges, of Actors, &c. In the third, of Exceptions dilatory and peremptory, that is, Pleas to the Writ, and in Bar, &c. of Trial by Juries and by Battel, of Attaints, of Challenges, of Fines, &c. In the fourth, of Judgments, and therein of Jurisdiction, of Process in criminal causes, and in Actions real, personal, and mixt. So as in this Mirror you may perfectly and truly dis∣cern the whole Body of the Common Laws of England. Thus far Sir Edward Coke.

Mr. Lambert, in his unfolding the difficult things and words in his trans∣lation of the Saxon Laws, says, King Alured when he had made a League with Guthrun the Dane, having followed the most prudent counsel given by Jethro to Moses, first divided England in Satrapias, Centurias, & Decurias. He called Satrapiam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which signifies to divide; He called Centuriam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and Decuriam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, a company of Ten men; and by those names they are called to this day.

And that no man might be ignorant, the Decuria did consist of Ten men, whereof all of them were pledges that every one should be forth-coming to any Action in Law; and if any one did any damage, the other were bound to make it good; and from hence the other nine were called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, Free-pledges: we in the Pleas of Courts call them Francos plegios. The tenth man 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 called the Decurio or Tithingman, by which name he is most known to the Eastern English, at this day: Others call him 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; others call him 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, the first or chief Surety or Pledge: The Kentish men call him Borsholder corruptly for 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, the first Surety. Centuria, or a Hundred, was made up of ten Decuria's, as one Hundred is made up of ten times ten. This (viz. Hundred) the men beyond Trent called by another name, not unknown to the common people, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Wapentac. Alured then fur∣ther ordained, That every man of free condition should be enrolled in some Hundred, and be conjoined into some Ten-men company: That of lesser businesses, the Decurions or Court-Leet might judge; and if any weightier matter were, it should be deferred to the Hundred or County-Court. Lastly, that the Alderman and Sheriff (I take it, he calls them Senator & Praepositus) should compound the most difficult Suits and of greatest moment, in that frequent Convention from all parts of the Shire or County. And what the manner of judging was, King Etheldred in the fourth Chapter of his Laws (which he enacted in a full Senate or Parlia∣ment at Vanatnigum 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Woodstock) expounds almost in these very words:

In all and every Hundred let there be Assemblies, and that Twelve elderly men of free condition, together with the Sheriff (Prae∣posito) be sworne, that they will not condemn the Innocent, or absolve the Guilty.

So that Mr. Lambert seems to be of opinion, that the Common-Law had its origination from King Alured or Alfred, who was King of all Eng∣land, and a most victorious, pious, prudent, and glorious Monarch; about the year of our Lord 890. And from a most deplorable condition, by reason of the Danish invasion and robbery, reduced it to a most quiet calm, and laid that foundation, upon which the body of the Common-Law is since builded. But whosoever was the first Founder and Establisher of them, certain it is they were antient, and Laws which better suit to the nature and disposition of English-men, then any other that are, or ever were in the world, would do.

2. As those general Usages or Customs which are generally observed, * 1.64 are called the Common-Law; so there are almost infinite particular Usages, Prescriptions and Customs in several parts of this Nation, which are ob∣served as Laws by the Inhabitants of those places, and to all intents and purposes have the effect of Laws.

3. Statute-Laws are Acts of Parliament, which are neither general * 1.65 nor particular Customs, but are Laws made by the Kings of this Land in Parliament, upon sundry and diverse occasions, according to the then occasions, as they represented themselves. For although all innovations are dangerous; and therefore if it were possible, no doubt it were best that hu∣mane Laws (as the Laws of Nature) might be immutable and eternal; but as God hath created all things transitory, and nothing in this world the same the next subsequent minute, that it was before; and therefore the state of

Humane affairs being every day variable, and putting on a new face to mor∣row, which they had not neither to day, nor yesterday; which cannot be certainly foreseen by any man, or men, no more then any Master of a Ship can foresee what winds will blow to morrow, or next day; or whether it will be serene, or stormy weather, whether deep or Rockey Seas. Yet if no prudent Mariner will venture himself, and those under his command to Sea, without sufficient provision against all the contingencies which may happen, and be prevented; Then sure no man or men not vainly blinded with am∣bition, will undertake to manage the Government of a Nation without sufficient means to protect themselves and Subjects from all future storms and confusions, which may either arise from within the Nation, or be cau∣sed from without. Yet will it not follow that every day there should be new Laws made, for Nihil semel perfectum & inventum, there is nothing which is perfect so soon as begun; and many mischiefs and inconveniencies may be begun, and yet be prevented before they can be brought to perfection. But then it must be presupposed that there may be remedies used, which must of necessity be, that there be a present and coercive power in being, which may suppress, and dissolve those mischiefes and inconveniences, by making new Laws, if the old ones will not remedy them; and this is no new thing, but is, and alwaies was, in all governments that ever were, whether Monarchy, Aristocracy, or Democracy.

A Parliament is a Politick body compounded of Heterogenial or * 1.66 dissimilar parts, viz. the King, the Lords spiritual and temporal, in one distinct house, and of a house of Commons another distinct house.

Since there has been so much contest about the power and jurisdiction * 1.67 and cause of Parliament; and since it being compounded of unlike parts, and some of these unlike parts, nay pieces of those parts have assumed the name of Parliament, We will examine all the parts of it, and see whether it be not all made and created by the King, and into him only can be ul∣timately resolved, he being principium, caput, & finis of it.

First, For the Lords spiritual they are all parts of the Lords house, and sit there by succession in respect of their Counties or Baronies, parcell of their Bishopricks; but all Bishopricks were originally of the Kings founda∣tion and donative per traditionem baculi (viz. the crosier) & annuli (viz. * 1.68 the ring) whereby he was married to the Church. King Henry the first being requested by the Bishop of Rome to make them Eligible, refused it; but King John by his Charter bearing date 5 Iunii, an. 17. granted that the * 1.69 Bishopricks should be Eligible; so that the foundation, donation, and election to Bishopricks was only and immediately caused by the King: and in this capacity by virtue of the Kings Writ out of the Court of Chancery, does every Bishop sit as a member of the upper house of Parliament. So that * 1.70 the Lords spiritual did immediately hold their Bishopricks of the King; and were members of the upper house only by vertue of the Kings Writ.

Secondly, That the Lords Temporal are created immediately by the King, is so manifest that I think no man will question it, and that every Temporal Lord is impowred to sit as a Member of the Lords house by ver∣tue of the Kings Writ issuable ex debito justitiae, out of the Chancery. See Inst. 4. part. pag. 1. & 4.

All the Judges of the Realm, Barons of the Exchequers, of the Coif, * 1.71 the Kings learned Council, and the Civilians Masters of the Chancery, all called to give their assistance and attendance in the Upper house of Parli∣ament, but have no voices in Parliament. How their Writs differ from the Barons, see Inst. 4. part, page 4.

In every Writ of Summons to the Bishops, there is a clause requiring * 1.72 them to summon these persons to appear personally at the Parliament, which is in these words: Premonientes Decanum & Capitulum Ecclesiae vestrae Nor∣wicensis, ac Archidiaconos totumque Clerum vestrae Dioces. quod iidem Decani & Archidiaconi in propriis personis suis, ad dictum Capitulum per unum, idem∣que Clerus per duos Procuratores idoneos plenam & sufficientem potestatem ab ipsis Capitulo & Clero divisim habentes praedict. die & loco personaliter inter∣sint ad consciendum hiis quae tunc ibidem de communi Concilio dicti Regni nostri, Divina favente clementia, contigerit ordinari. So that not only the Lords Spiritual and Temporal, but their Assistants, are only created by the Kings Writ, or immediately by the Kings authority.

But since there is so much contest about the House of Commons, and * 1.73 men say they represent the Freeborn people of this Nation, and are the Supreme Authority of the Nation: We will therefore enquire into the cause, and see what may be the Freeborn people; and whether a House of Commons, as it now stands, can be their Representative; and whether being their Representative, they may be the Supreme Authority of this Nation?

First, What are the People? If any man had said the people of Rome, or the people of Athens, or the people of Carthage, &c. a man had under∣stood them, and only them of Rome, Athens, or Carthage, &c. who were civitate donati. But in England the case is much otherwise; for with us there is no civitate donatus in one more then another, but all men are alike born free, and so by consequence every man as a freeborn man of England has as much right to his freedom one man as another. I say therefore, if every man of England has not a like vote and power in electing Members for the House of Commons, then cannot the House of Commons be the Repre∣sentative of the Nation; for, Plus valet contemptus unius, quâm consensus omnium. But it is most manifestly evident, that the House of Commons are not elected by the equal consent of the freeborn people of England, (for not only two parts of three have not Forty shillings a year, yet are as freeborn as they who have, and as liable to penalty for transgressing Laws made in Parliament, as they who do elect; but many men have double votes in the election, in Corporations where they send Burgesses, and yet have like power with the Forty-shillings-men in electing a Knight of the Shire; and such a place as Rising-Chase and Old Sarum, &c. have a like power in this House with the County of York; and the Bishoprick of Durham sends none at all: So that it may be rather termed a Representative of the Free Corporations, then a Representative of the Freeborn people of England.) The House of Commons therefore cannot be a Representa∣tive of the Freeborn people of England.

But suppose them the Representatives of the Freeborn people of this * 1.74 Nation, yet cannot they be the Supreme Authority of it; for no power can act beyond the power of its being. I say therefore, that no Representa∣tive can be supreme, or superior to the cause of its being: The House of

Commons therefore cannot be (granting it the Representative of the Freeborn people of this Nation) the Supreme Authority of the Nation.

But if the house of Commons be not sent by the people and their Re∣presentatives; Who creates them, and by what right do they make a house of Commons?

Before we answer this Quaere, wee will see of what sorts of men a house * 1.75 of Commons is compounded. A house of Commons is compounded of three sorts of men, viz. Knights of Counties, Citizens sent by Cities, and Burgesses of Corporations: Barons of the Cinque Ports are the same thing differently expressed with Burgesses of Corporations. Now that all Cities, Burroughs, Corporations, and Cinque Ports, are not so jure naturali, nor by any inherent birthright, but from their Charter, which is nothing else but the Kings grant, is so manifest, that I think no man in his wits will deny. But all Cities and Corporations are not alike in priviledges, but more or less as they are impowred by their Charter or Grant of the King. Some Corporations have Liberties & Priviledges, and are impowred to send Bur∣gesses; others have Liberties and Priviledges, but not qualified to send Bur∣gesses; nay some Cities have Liberties and Priviledges, but not endewed with this right of having Representative in the house of Commons, as the Cities of Durham and Ely.

And as neither Cities nor Burroughs are endewed with these their Li∣berties * 1.76 and Priviledges by any inherent birthright; so neither are the Coun∣ties nor Inhabitants endewed with any right of sending Knights of their Counties by any inherent birthright; for then had all the Counties a like right one as another, and all the Inhabitans a like vote; and they mighr create representatives as often as they should see occasion. But all these are most evidently false; for we have shewed before, that not only the division of this Nation into Counties was an act of the Kings, but all Counties are not alike endewed with this Priviledge, some Counties in Wales send∣ing but one, and the County of Durham none at all. Nor have all men a like vote in electing (and yet as much subject to Laws made in Parliament as other men) but men only who have 40 s. yearly freehold rent; nor can these 40 s. a year men, when they will, send their representatives. What then does impower these to send representatives? Why let Sir Ed. Coke say, * 1.77 Knights of Shires, Citizens of Cities, and Burgesses of Burroughs, are re∣spectively elected by the Counties, Cities and Burroughs, by force of the Kings Writ. So that the Kings Writ is the first and efficient cause of the * 1.78 house of Commons, as well of the Knights, as Citizens and Burgesses; the Commons cannot begin nor be dissolved, without the King in person or representation.

If then Rebellion be as the sin of Witchcraft, as the Holy Ghost saies; * 1.79 and if crimen lesae Majestatis be the highest crime and impiety, as all Lawyers hold; and if Gratitude be one the chief of all Moral virtues, as all men hold, for, si ingratum dixeris, omnia dixeris, no man who is an ingrateful man, but has rendred himself as if he had committed all manner of wickedness: How impious then is it for men, only from the Kings grace endewed with this high favor, to convert it in opposition and derogation of that power and person from whence they originally received it! But they say, if the Commons did it, then was it done by the people, and so just and not to be questioned,

as if the people were not a thing to be governed; and all as much subject to the King and Laws as every one; or that a thing just or unjust in it self, were more just or unjust, because more or fewer did it. Will any man say, the crucifying of our Saviour was therefore just, because many of the Jews did it? or that a rout or riot is therefore lawful, because done by many men? or that it is not paricide or regicide, if many Sons and Subjects kill their Pa∣rents, and King?

As all the Members of both houses are created by the King, so cannot * 1.80 these Members be formed into a body but by the King, either by his Royal presence or representation. By representation two waies; either by a Guar∣dian of England by Letters Patents under the great Seal, when the King is in remotis out of the Realm: or by Commission under the great Seal of * 1.81 England to certain Lords of Parliament representing the person of the King, he being within the Realm, in respect of some infirmity.

This House is so far from being the Supreme Authority of the Nation, * 1.82 that they are not a Court of Judicature, nor can impose an Oath, or take any mans Examination. Yet Sir Ed. Coke says, Inst. 4. 28. that the House of Commons is to many purposes a distinct Court, because (he says) they cannot be prorogued or adjourned but by its self; yet gives no more. It is true indeed, that to many purposes among themselves they do judge their Members, and Elections, and have a Committee for Religion; but these things are more of custom (whether good or bad, I cannot tell) then of any original right that I know, or ever heard of. And Sir Ed. Coke, Inst. 4. 11. says, They being the general Inquisitors of the Realm, have principal care in the beginning of Parliaments to appoint Committees of Grievances (both in Church and Commonwealth) of Courts of Justice, of Priviledges, and of Advancement of Trade. They have been wont too, ever since the Statute de Tallagie non concedendo, of course to grant the King Aids in extraordinary cases.

The House of Peers, assisted as aforesaid, are the Supreme Court of * 1.83 Judicature in this Nation; not only to judge whether matters presented to them by the Commons, be fit or requisite for the King to pass into Laws, (as Monsieur Bodin well observes, who disputes this better then any of our English Lawyers that I know of, has done) but also of Writs of Error, and of matters of Fact either not determinable in other Courts, or else when though they are determinable in other Courts, yet in regard of nicety or special matter they cannot well discern or judge.

I have therefore been particular herein, as well to shew into what cause * 1.84 not only both Houses conjunctly, but every particular Member in either, have a right of being; as also (since Non datur progressus ad infinitum) the Parliament being a body compounded of heterogenial or dissimilar parts, if they sever or divide, into what Subjects may, ultimately with good con∣science, resolve their faith and obedience. And no question, it is better any thing should be Law, then that every thing should be lawful: And that is the greatest slavery, where Subjects know not where to pay their obedience, and from whence to expect protection; but where different Factions shall with equal right or injury, impose their lusts and wills for Laws to their Fellow-subjects.

The Jurisdiction of Parliament is so transcendent, that it maketh, in∣largeth, * 1.85 diminisheth, abrogateth, repealeth and reviveth Laws, Statutes,

Acts and Ordinances, concerning matters Ecclesiastical, Capital, Criminal, Common, Civil, Martial, Maritime, and the rest: It may make Daughters and Heirs apparent of a man or woman, during the life of the Ancestor; * 1.86 adjudge an Infant or Minor of full age; attaint a man of Treason after his death; it may Bastard a Child that is Legitimate, it may make a Bastard * 1.87 Legitimate.

A Parliament was called before the Conquest, Michael Sinoth, Michael * 1.88 Gemote, Ealsa Witenage Mote; that is to say, the Great Court or Meeting of the King and of the Wise men; sometime, of the King with the Council of his Bishops, Nobles, and wisest of his people. The French call it Les estates, and L'assemble des estates; (the Parliaments in France are no other * 1.89 then our Courts of Kings-Bench, Common-Pleas, Exchequer, and Chan∣cery in England.) The Germans call it a Dyet. And Inst. 4. p. 2. it was antiently called Witenage mote, Conventus sapientum, Commune concilium regni, Generale concilium regni, Concilium regni, & Assisa generalis. Tully calls it, Consessum Senatorum, à considendo, &c.

Object. But it may be it will be objected, That though the King be principium, caput, & finis Parliamenti, and that every Member, as well as both Houses, have their original right and sitting there from him; and that though Laws of right ought to pass in Parliament at the rogation, request or petition of the Commons, by the counsel and advice of the Lords; yet the Kings of the Nation have long since divested themselves of this power, and have granted the Lords and Commons a concurring power in the making of Laws, or by custom and usage it hath been so time out of mind, and so ought to be observed as a Law.

To the first I say, Kings reign by a higher then any humane law; and [Ans. 1] therefore no act of any King can divest himself or successor of any attribute due to him or his successor: And if Kings actions did oblige themselves or successors, then were this Crown not free, but subject to the Pope, because King John made it so. But I deny the assertion; for it is false, that ever any King of this Realm did ever grant the Parliament, or either House, a concurring power of making Laws with him.

For the second; No usage, prescription, or custom can take place, [Ans. 2] where there are records or proofs to the contrary. Whether we cannot give proofs enough to the contrary, judge good Reader.

David's calling all the Lords of Israel, the Lords of the Tribes, the Lords of the Companies that ministred to the King by course, the Captains over thousands and over hundreds, and the Lords that had the oversight over all the substance and possession of David and of his sons, with the Chamberlains, and all the mighty, and all the valiant, and all the active men, unto Jerusalem, to consult concerning the building of God a house, 1 Chron. 28. 1, 2. was a Parliament. So was that Convention of Solomon's, * 1.90 2 Chron. 2. and that Convention of the Israelites, Judg. 20. 11.

Ego Inas Dei gratia Westsaxonum rex, exhortatione & doctrina Cenredes patris mei, & Heddes episcopi mei, & Erkenwaldes episcopi mei, & òmnium Aldremannorum meorum, & Seniorum sapientum regni mei, multaque congre∣gatione servorum Dei, sollicitus de salute animarum nostrarum, & statu regni mei, constitui rectum conjugium, & recta judicia, pro stabilitate & confirmati∣one populi mei, benigna sedulitate celebrari, & nullo Aldremanno vel alicui de toto regimine nostro conscripta liceat abolere judicia; was an Act of Par∣liament. * 1.91

Edwardus rex admonuit omnes sapientes suos qui fuerint Exoniae, ut investi∣garent simul, & quaererent quomodo pax eorum melior esse possit quàm ante fuit; was an Act of Parliament by Edward King Alfreds son. * 1.92

Haec sunt instituta quae Edgarus rex consilio sapientum suorum instituit; were Acts of Parliament. * 1.93

Hoc est consilium quod Etheldredus rex, & omnes sapientes sui condixere ad emendationem pacis omni populis, apud Woodstock. Haec sunt verba pacis, & prolocutionis quae Etheldredus rex, & omnes sapientes ejus cum exercitu firma∣verunt, qui cum Anulano, Justino, & Guemundo Stigrani filio venit: Et haec instituerunt Etheldredus rex, & Sapientes ejus apud Habam; were Acts of * 1.94 Parliament.

Edmundus rex congregavit magnam Synodum Divini ordinis & Seculi apud Londonum civitatem in Sancto Pasch. solenni: & hae sunt institutiones quas Ed. rex, & episcopi sui, cum sapientibus suis instituerunt apud Culinconam, &c. & paulo post: Ego Edmundus rex mando & praecipio omni populo senior', & junior', qui in regione mea sunt, qui investigans investigari, cum sapientibus Clericis & Laicis; were Acts of Parliament. * 1.95

Haec sunt statuta Canuti regis Anglorum, Danorum, Norvegar' venerando sapientum ejus consilio ad laudem & gloriam Dei, & sui regalitatem & com∣mune commodum habita in Sancto Natali Domini apud Wintoniam, &c. were Acts passed in Parliament. * 1.96

Rex Canutus an. regni sui 5. per 130 annos ante copilationem decretorum quae an. Dom. 1150. fuer' copilat' anno 7 pontificatus Papae Eugenii tertii, & ante copilation' aliorum Canon' quorumcunque, cunctos reg' sui praelat' proceresque ac magnates ad suum convocans Parliam' in suo publico Parliam' persistentibus personaliter in eodem Wulstano, & Adelnodo archiepisc' & Ailwino episc' Elme∣hamense, & aliis episcopis ipsorum suffragan' septem Ducibus, cum tot Comitibus, nec non diversorum monaster' nonnullis Abbatibus, cum quamplurimis gregariis milit' ac cum populi multitudine copiosa, ac omnibus adhuc in eodem Parliamento personalit' existent' votis Regiis unanimiter consentientibus, praeceptum & decret' fuit, quod Monasterium Sancti Edmundi &c. sit ab omni jurisdictione episcopor' com' illius ex tunc imperpet' funditus liberum & exemptum, &c. Illustris rex Hardicanutus pred' regis Canuti filius, haeres & success ac sui patris vestigior' devotus imitator, &c. cum laude & favore Aegelnod' Dorobornensis, nunc Cantuariensis, & Alfrici Eborac' episcopor', aliorumque episcopor' suffragan', nec non cunctorum regni mei mandanorum principum descriptum constituit robo∣ravitque praeceptum; were Acts of Parliament. * 1.97

Rex Eldredus convocavit Magnatos, Episcopos, Proceres, & Optimates ad tractandum de publicis negotiis regni: And this was a Parliament. * 1.98

But none of these (you will say) have the obligation of Laws upon us. Well, let us see those Acts of Parliament which have, and what is the difference. By the way, no Acts of Parliament are now, nor these 400 years have had the force of Statute-Laws in England, but those made in Henry the Third's time, and since. And what was the first and great Act of Magna charta, but—Henry by the grace of God King of England, Lord of * 1.99 Ireland, &c. We have granted to God, and by this our present Charter have con∣firmed for us and our heirs for ever, That the Church of England shall be free, and shall have all her whole rights and liberties inviolable. We have granted also and given to all the Freemen of our Realm, for us and our heirs for ever, those Liberties underwritten, to have and to hold to them and their heirs, of us and

our heirs for ever. Note, this great Charter which made the Church and * 1.100 Kingdom of England the most free in the world, was a free and voluntary act of an English Monarch in Parliament: And all that violation and de∣struction of all those happy Grants and Concessions both in Church and State, have been made by a cursed conspiracie of a factious and seditious company of men (falsly and most injuriously arrogating to themselves the name of Parliament) without and against the Kings good mind and pleasure.

Charta Foresta was—Henry by the grace of God King of England, Lord of Ireland, Duke of Normandy and of Guyen, &c. We will that all Forests which King Henry our Grandfather afforested, shall be viewed by good and lawful men, &c.

Statutum Hiberniae was nothing else but—Henry by the grace of God King of England, &c. To his trusty and welbeloved Gerard son of Maurice, Justicer of Ireland, greeting. Commanding him to cause the Customs re∣cited in the Act, and used in England, to be proclaimed, and streightly kept and observed in Ireland.

Statutum de Anno Bissextili was—The King unto the Justices of the * 1.101 Bench greeting &c. The Statute intituled Assisa panis & cervisiae, was—* 1.102 The King to all to whom these presents shall come, greeting. We have seen certain Ordinances, &c.

Stat. de Scaccario: The King commandeth that all manner of Bailiffs, She∣riffs * 1.103 and other Officers, as well Justices of Chester, &c.

Statutes made in the Parliament at Marleborough; wherein the King * 1.104 made these Acts, Ordinances and Statutes underwritten, which he willeth to be observed for ever firmly and inviolably of all his Subjects, as well high as low.

Statute of Westminster the first, were the Acts of Edward the son of * 1.105 Henry, &c. by his Council, and the assent of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm, &c. the King ordained and established these Acts underwritten, which he intendeth to be necessary and profitable unto the whole Realm. First the King willeth and commandeth that the peace of Holy Church, and of the Land be well kept and maintained in all points, and that common right be done to all as well poor as rich, without respect of persons, &c.

Statutes made at Gloucester, where our Soveraign Lord the King for * 1.106 the amendment of the Land, and for the relief of his people, &c. hath provided and established these Laws underwritten, willing and command∣ing that from henceforth they be firmly observed within the Realm.

Statute of Rutland, hath no other title then—The King to his Treasurer * 1.107 and Barons of the Exchequer, and to his Chamberlains greeting, &c.

Articuli super Chartas, were Grants in Parliament made by the King * 1.108 at the request of the Prelates, Earls and Barons assembled in Parliament. Note, the Commons are not so much as named in these Acts of Parliament.

The Statute of Quo Warranto made at Gloucester, and Statute de Pro∣tectionibus * 1.109 made at Westminster, the King only speaks.

Stat. de conjunctim Feoffatis: The King unto all to whom these, &c. * 1.110 greeting. And after the recital of the things contained in the Act, it is said▪ In witness of which thing we have caused these our Letters Patents, I my self being Witness at Westminster.

Statute of Amortising of Land, made by Ed. 1. only the King speak∣eth. Ordinatio pro statu Hiberniae, made 17 Ed. 1. the King speaketh by the assent of his Council.

Statute Ne Rector prosternat arbores in coemiterio, only the King speaketh, and neither Council nor Parliament mentioned. * 1.111

Statute for Knights, hath no other title then—Our Lord the King hath * 1.112 granted, &c. And Stat. de frangentibus prisonam, 1 Ed. 2. hath nothing to create it a Law, but, The King willeth and commandeth; and neither Parlia∣ment nor Council named in either of them.

Articuli Cleri made at Lincoln, the King and his Council are named. * 1.113

The Statute of York was made by the King, by the assent of the Prelates, * 1.114 Earls, Barons, and Commonalty there assembled: So that in these three Kings reign, although the King did enact them in Parliament, yet the manner was different almost in all.

In Ed. 3. his time, was the form of enacting Laws truly defined, and * 1.115 much used by him and the subsequent Kings. At the Parliament holden at Westminster;

King Edward at the request of the Commonalty, and by their Petition made before him and his Council in the Parliament, and by the assent of the Prelates, Earls, Barons, and other great men assembled at that Parliament, hath granted &c.

In the next Parliament holden at Northampton, the Laws are made by * 1.116 him, and by the assent of the Prelates, Earls, Barons, and other great men, and all the Commonalty assembled in Parliament.

Statutes made at Westminster, were enacted by the King, his Prelates, * 1.117 Earls, Barons, and other of the same Parliament, at the request of the Commons.

Statutes made at Westminster: The King by the assent of the Prelates, * 1.118 Earls, Barons, and other great men of the Realm, at the request of his people granted, and established &c.

Statutes made at York, were enacted by the King in Parliament, upon * 1.119 the Petition of the Knights, Citizens and Burgesses.

Statute of Money made at York, was enacted by the King, with the * 1.120 assent of the Prelates, Earls and Barons, and the Commons not so much as named.

Statutes made at Westminster, were made and established by the King, * 1.121 with the assent of the Prelates, Earls, Barons, and other Nobles of this Realm, and at the request of the Knights and Commons.

Statutes of Purveyors made at Westminster, were enacted by the King, * 1.122 with the assent of the Prelates, Earls, Barons, and also at the request of the Knights of the Shires, and the Commons by their petitions put in the said Parliament.

Statutes made at Westminster, were to the honor of God, and of Holy * 1.123 Church, by the assent of the Prelates, Earls, Barons, and other assembled at Parliament.

And see almost all the Acts of Parliament in Ed. 3. his time, after in Rich. 2. Hen. 4. Hen. 5. Hen. 6. Ed. 4. Rich. 3. the King always made the Law, and the Lords Spiritual and Temporal did assent, at the instance, request or petition of the Commons; or by the King with the assent of the Lords and Commons; which was not, or but rarely used, unless in Rich. 2. his time. In Hen. 7. his time, the Commons got to have their assent, as well

as the Lords in passing Laws. And this manner of passing Laws continued generally until Edward the Sixth's time, where they were sometime made by the King, with the assent of the Lords Spiritual and Temporal, and Commons in Parliament, and sometime by the Parliament: But the form of enacting Laws by the King, and the Lords Spiritual, Temporal, and Commons assembled in Parliament, was seldom or never used before Queen Maries time.

So that it is as clear as the Sun at noon-day, That a King of England, * 1.124 by the ancient usages of this Nation, is as free and absolute in the Session of Parliament, as out. And the Act of a King in Parliament, is the free and voluntary Act of an absolute Monarch; for the Act of the King in Par∣liament passed by the assent of the Lords Spiritual and Temporal, and at the Petition of the Commons, is not less the act of the King, because it is so passed; unless a man will deny, that my Will being a faculty of my Soul, cannot imperate an act, if it takes information from my Understanding or Reason; Reason and Understanding being in proportion to the Will, as Counsel is to a Law. King Charles of Sacred memory, commends to his Son, the then Prince of Wales, in his last Letter and Admonition to him (though for his own particular he had little Reason (God knows) so to do) the frequent use of Parliaments, as the best means, by which, Laws may be received of the Subjects, and diffused to all parts of the Nation, and to hold a right understanding between the King, and his Subjects.

But as nullum medicamentum est idem omnibus; nay, the same Medi∣cine at one time may kill the same person, which at another time may cure him: And that thing, which at one time may be a very probable reason of an action, at another time, may be none at all, or quite contrary to Reason: So in Reasons of State, that may be a very probable reason at one time, which may be none at all, or perhaps destructive at another time. As Henry the Third had great Reason of State, to form a House of Commons, and endue it with large priviledges, to secure himself against a stubborn and re∣bellious Nobility: But King Charles had not the same Reason of State to indulge the House of Commons, contriving the destruction of himself, the Church and Nobility, Laws and Liberties of this Nation. Edward the First had great Reason of State to call a Parliament, and to pass the Act De Tallagio non concedendo, for otherwise as the state of affairs then stood, he could neither get money to assist his Friend and Ally, the Earl of Flanders; nor relieve his distressed Subjects in Aquitaine oppressed by the French King (which Sir Edward Coke in his Comment upon this Statute observes;) but King Charles had not the same Reason of State, to call the Parliament in 1640. who (instead of assisting their natural Sovereign against a Rebellious Rabble of Mungrel Hebrides and Lysisks, give them Three hundred thousand pounds to be exported out of the Kingdom for their Brotherly assistance.

Edward the First had great Reason of State to pass the Statute of Mort∣maine, when as men were so superstitiously given, that no man thought he could merit Heaven, if he gave nothing to the Church; whereby such large Revenues accrued to the Church, that the third part of the Revenues of the Nation was in Church-mens hands; who pretending exemption from the Temporal Power, if some remedy were not taken, the King would probably be left destitute of means to protect himself, and his Sub∣jects;

yet is there not now that Reason of State, when in a Sacrilegious age, all the Patrimony of the Church goes to wrack and ruine; and men of Badges of Sacriledge, make marks of Saintship. It were endless to enu∣merate how Reasons of State vary with the times: It must suffice, that there be means always in the Supream Power, to remedy and cure the maladies and mischiefs of State, as they arise and represent themselves. Yet it is a remarkable thing, That they who oblige Kings and Supream Powers to their own Laws, will never be obliged by either their own, or any Laws of God, if ever the Supremacy comes to be vested in them; and let any man shew me in Five hundred years one time, wherein the Kings of England did alter the Laws out of Parliament, and I will shew him an hundred times in seven years, where men arrogating to themselves the name of Parliament, have altered the Laws without the King. They who oblige Supream Powers to Humane Laws, the Conditions must oblige God too to such things, as is contained in those Laws and Conditions, or else it is impossible for Powers to protect their Subjects.

But Corruptio optimi est pessima, there were never so vile things done as have been by Parliaments, or by men calling themselves so. Sir Edward * 1.125 Coke (being always mightily in love with Parliaments) gives instances but in two, viz. Thomas Cromwel Earl of Essex, and Edmund Earl of March (the true and undoubted Heir of the Crown of England) both condemned unheard, and without tryal in Parliament, when as he might have instanced twenty. Sir Thomas Seimer, Admiral of England, and Brother to the Pro∣tector, Anno 1549. the third year of Edward the Sixth, was condemned to death unheard by a Law in Parliament. Henry the Third after all the Acts of Grace of Magna Charta, Charta de Foresta, &c. (instead of means * 1.126 given him by Parliament, for the recovery of his right of the Dutchy of Normandy, usurped and taken by the French King from his Father King John, and the Dutchy of Guienne, and Earldom of March, the year before usurped and taken from him by the French King) had all the exercise of Regal Government taken from him, and given to the Twelve Peers, by the * 1.127 Mad Parliament; whereof ensued the Barons Wars, to the destruction and confusion of so many English-men, as nothing but a Parlia∣ment could have done. Henry the Fourth in the first year of his usurped Reign, had the Crown entailed upon him and his Heirs in Parliament, from whence ensued all the Wars of the Houses of York and Lancaster. At a Par∣liament holden Anne Dom. 1470. begun at Westminster, 26 November, the Crowns of England and France, were entailed upon Henry the Sixth, and the Heirs male of his body lawfully begotten; and for want of such Heirs unto George Duke of Clarence, being the yonger Brother of Edward the Fourth, the undoubted Heir of the Crown of England; whereby a double injustice was done, first to Henry the Sixth, excluding his Heirs general, then to Edward the Fourth, to prefer his yonger Brother Clarence before him, in case of want of Heirs male to Henry the Sixth.

See the Factious Conspiracy of the Commons, together with the con∣sequence against the Duke of Suffolk. Speeds History, Henry 6. p. 675. Para. 47, 48.

The Parliament in the First of Richard the Third his Reign (though a bloody Usurper) presented a Bill for the entailing the Crown upon his Heirs. * 1.128 Nor was the Act of Parliament less injurious, which entailed the Crown

upon Henry the Seventh, and the Heirs of his body, (he having no colour of title to it, but in right of his Wife) and because he suspected his title, and reigned in his own right to the wrong of his Wife, and after her decease, to the wrong of his Son Henry the Eighth, in the eleventh year of his Reign, he got an Act of Parliament to pass, which should protect all Subjects who should assist the King (be he so by right, or not) for the time being. So that other offences should be punished; but he that perpetrates the highest villany by invading a Crown, should be protected by Law. Henry the Eight, by authority of Parliament, an. 1533. Bastardized Queen Mary; and so soon as he had cut off Anne Bullens head, by authority of Parliament Bastardized Queen Elizabeth, smally to his credit, one would think.

Add hereunto the ridiculous, yet cruel Act of Hen. 8 his Headship of the Church: So that a stranger being one day in Smithfield, and seeing one burnt for denying the Six Articles, and another hanged for denying his Headship, cried out, Bone Deus, quo modo hic agunt vivi! hic combu∣runtur Papistae, ibi suspenduntur Antipapistae. The bloody Laws passed in Parliament in prosecution of the Six Articles, in the time of Henry the 8. and the bloody Parliamentary Laws for Religion, in Queen Mary's reign, &c. and all those Sacrilegious Acts made in the reigns of Hen. 8. and Ed. 6. and sure no man can imagine such horrid acts could be perpetrated but by Parliaments.

Nor have the General Assemblies in France (who were wont to be assembled once or twice a year) demeaned themselves much better then the Parliaments in England; but in stead of providing good Laws, fell into such Factions, and used such affronts to the Regal power, that Lewis the Eleventh (a most subtile and cunning Prince) was wont to say, It was time to put the French Kings, horce de page, out of their minority, and from being Pages any more; and so he did. And since his time they have been rarely convented in France: For since the General Assembly at Bloys, anno 1587. by Henry the Third, where the famous Duke of Guise was killed, there hath been but one, anno 1614. in the fourth year of the reign of Lewis the Thirteenth; and that succeeded so ilfavoredly, that there is no probability of ever being another.

4. Besides the general and particular Customs, and Acts of Parliament, there are almost infinite Corporations, Colledges and Companies, who have divers and sundry priviledges, which are granted by the Kings Letters Patents, and are observed as Laws, and to all intents and purposes have the effect of Laws.

5. But in all Maritime cases, (the Kings of England being Soveraigns of the Narrow Seas, whatsoever Grotius says to the contrary) and all acti∣ons done upon a Navigable river, are judged by the course of Civil law; and so the Probate of Wills, and Letters of Administration are determi∣nable by the Civil law.

Judge Jenkins, a learned Gentleman, and a stout Champion for the Laws of this Nation, in the first page of his Lex terrae, divides the Laws of this Nation into three grounds or species, viz. 1. The Customs, 2. Acts of Parliaments, and 3. Judicial Records; and that the two latter are declarations of the former touching Royal government; so that he makes Custom to be the ground of Royal government, and Acts of Par∣liament to have but a declaratory power of the Common Law touching

Royal government, and Judicial Records to be equivalent to Acts of Par∣liament. In all which he is most manifestly mistaken: For first, there are an exceeding many Acts of Parliament, which have no manner of dependence or affinity with the Common-Law, and so cannot be declarations of it; nay, there are many Acts of Parliament which are so far from being decla∣rations of the Common-Law, that they do annihilate it, and create other things in lieu thereof; as the Statute of West. 2. cap. 1. called the Statute de donis conditionalibus, annihilated all the Conditional estates in Fee at Common-Law, and created estates in Tail in lieu thereof. At Common-Law, no Lands or Tenemers were deviseable by Will; but the Acts of 32 & 34 H. 8. create a power of devising Lands and Tenements in Fee, by Will; and Tenants at Common-Law might choose whether they would attorn to any Grant of the Lord; but now the Lords Grant is good without it, by 27 H. 8. cap. 10. Sir Ed. Coke com. on Lit. sect. 574. says, Stat. 32. H. 8. takes away the reason of the Common-Law; so that, that cannot be a declaration of what, it takes away the reason.

It were tedious to instance the Acts of Parliament which give one Jointenant a power to compell the others to sue a Writ of Partition, which was denied at Common-Law; and right of Entry, where they were put to their Cui in vita, &c. It may suffice, that in no Kings reign there have not been Acts of Parliament, which have been so far from making declarations of the Common-Law, that they have made manifest alterations in it. And as the Common-Law hath no force nor reason against an Act of Parlia∣ment, so hath no particular Custom any force or reason against it, for no man can prescribe against an Act of Parliament; and all Lands in Gavel-kind were particular Customs, but taken away by Act of Parliament. And many Acts of Parliament have not declared the Succession of the English Diadem according to the usual custom thereof, but made manifest alteration thereof, as in the Succession of Hen. 4. 5. & 6. Rich. 3. Hen. 7. & 8. which being unjust, and the cause not depending upon Humane laws, ought not to be obeyed.

Nor (secondly) is that a less error, that Judicial Records are equiva∣lent to Acts of Parliament; for they are so far from being equal to Acts of Parliament, that in truth they are no Laws, but Inferences and Conclu∣sions which are deduced from Laws. For there is not any Judicial Record, which is not unjust, if it cannot truly and ultimately be resolved in some general or particular Custom, Act of the Parliament, or grant of the King. So that Acts of Parliament, the Common Law, Particular Customs and Prescriptions, and Royal Grants, are as Axioms, Postulata, or Principles in Arts or Sciences; and Judicial Records, Reported Cases, and Years∣books, are Inferences, Conclusions, or Sciences deduced from Acts of Parliament, the Common Law, and particular Customs of this Land, or Concessions of the King.

Touching Royal Government; Royal Government being the ordinance of God, and from the Law of Nature, is paramount to all Humane laws, and the prime and efficient cause of them; they cannot therefore declare the cause, so as to create any obligation, of what they are but the effects, and from whence derived.

We have thus far treated of the means by which the Kings of this Nation have (until 1640.) governed and preserved their Subjects inter∣nally.

But because it is the office of Kings, to preserve their Subjects as well from foreign force, as internal broil; there is yet something wanting, of which we have not treated, viz. The power of making War and Peace, and maintaining Alliance and Traffique. Of these, in regard they refer to Foreign powers and jurisdictions, and are not subject to the Laws of the Nation, we shall forbear to treat; only affirming that it is necessary that at all times this power must be so vested in the King, that at all times he may have the aids and assistance of his Subjects in pro∣secution of the Ends aforesaid.

Notes

• * 1.1

  Introduction.
• * 1.2

  Rom. 13. 1.
• * 1.3

  Subjection due by the Law of Na∣ture to Sove∣raigns.
• * 1.4

  What is Lige∣ance.
• * 1.5

  Pag. 25. tit. 5.
• * 1.6

  Pag. 9.
• * 1.7

  Ligeantia ac∣quisita Pag. 5. & 6.
• * 1.8

  Com. Lit. pag. 88.
• * 1.9

  Local Lige∣ance, tit. 3. pag. 6.
• * 1.10

  ••igeantia Le∣••••••••s, tit. 4. ••••g. 6. 7.
• * 1.11

  Five observa∣ble things in the Oath of Ligeance.
• * 1.12

  The conse∣quent upon Subjects en∣deavoring to dissolve their subjection.
• * 1.13

  Inst. 3. p. 36.
• * 1.14

  Gen. 9. 27.
• * 1.15

  Diversity.
• * 1.16

  Wherein con∣sists the liber∣ty of the Subject.
• * 1.17

  Of subjection of children to parents.
• * 1.18

  Of servants to their masters.
• * 1.19

  1 Tim. 6. 1.
• * 1.20

  Of subjection to Ecclesiasti∣cal powers.
• * 1.21

  1 Tim. 6. 3, 4, 5.
• * 1.22

  Diversity.
• * 1.23

  No Humane law can make a Royal heir.
• * 1.24

  None but God can make an Heire to a Crown.
• * 1.25

  None can in∣herit, not born in Ma∣trimony. Gen. 22. 2.
• * 1.26

  The Issue male shall in∣herit before the Issue fe∣male in Roy∣alty.
• * 1.27

  Of the Issue male, the first born is to be preferred.
• * 1.28

  Why only the King is said to inherit and succeed, and Subjects do either inhe∣rit or succeed, but never both.
• * 1.29

  How many waies heredi∣tary Monar∣chies descend.
• * 1.30

  Gynococratia or inheri∣tance of Wo∣men not un∣natural, nor against the Law of God-
• * 1.31

  Wherein Re∣gality differs in descent from Estates by Civil Laws.
• * 1.32

  Com. Lit. cap. 1. Sect. 8. p. 15.
• * 1.33

  First Charge.
• * 1.34

  Bodins charge and incom∣modities a∣gainst Gynae∣cocatry.
• * 1.35

  Second charge.
• * 1.36

  Third charge.
• * 1.37

  Fourth charge.
• * 1.38

  Fifth charge.
• * 1.39

  Sixth charge.
• * 1.40

  The etymo∣logie of the Salique Law.
• * 1.41

  A short view of the autho∣rity and ob∣servance of the Salique Law.
• * 1.42

  The authority of it by D'-Avila.
• * 1.43

  How proba∣ble.
• * 1.44

  Bodin's opini∣on.
• * 1.45

  Para. 12.
• * 1.46

  The eternity of it.
• * 1.47

  The reason of it.
• * 1.48

  The two main parts of the Salique Law.
• * 1.49

  The impru∣dence of the Salique Law.
• * 1.50

  It has been ill observed by the French.
• * 1.51

  Of Temporal Laws, and incidently of the Municipal Laws of this Nation.
• * 1.52

  Common Law or Gene∣rall usage.
• * 1.53

  Proem 8. part of Sir Ed. Cokes Reports
• * 1.54

  Preface 3. report.
• * 1.55

  Proem, Rep. 8.
• * 1.56

  Justices Itine∣rant, sec. 6.
• * 1.57

  Sheriffs Turn, sec. 7.
• * 1.58

  Leets or view of Frank∣pledge, sec. 8.
• * 1.59

  County-court sec. 9.
• * 1.60

  Court-Baron, &c. sec. 10.
• * 1.61

  Pipowders, sec. 11.
• * 1.62

  Admiralty, sec. 12.
• * 1.63

  Courts-Forest see. 13.
• * 1.64

  Particular Usages.
• * 1.65

  Statute-Law.
• * 1.66

  Of what parts a Par∣liament is compounded. Inst. 4. pag. 1.
• * 1.67

  What creates the Lords house.
• * 1.68

  Inst. 4 par. 1.
• * 1.69

  Com. Lit. Sect. 648. pag. 344.
• * 1.70

  Inst. 4 par. 1. 4.
• * 1.71

  Temporal As∣sistants of the Lords house.
• * 1.72

  Spiritual As∣sistants, or Procuratores Cleri.
• * 1.73

  The House of Commons are not the Re∣presentatives of the Free people of the Nation.
• * 1.74

  Nor the Su∣preme Autho∣rity of the Nation.
• * 1.75

  Of what sorts of men the house of Commons is compounded.
• * 1.76

  What creates the house of Commons.
• * 1.77

  Inst. 4. p. 1.
• * 1.78

  pag. 28.
• * 1.79

  Annot.
• * 1.80

  The Parlia∣ment cannot begin but by the King.
• * 1.81

  Inst. 4. p. 6.
• * 1.82

  The Jurisdi∣ction of the Commons House.
• * 1.83

  The Jurisdi∣ction of the House of Lords.
• * 1.84

  Annot.
• * 1.85

  The Juris∣diction of Parliament.
• * 1.86

  Com. Lit. 110.
• * 1.87

  Inst. 2 par. 36.
• * 1.88

  By what other names called.
• * 1.89

  Inst. par. 1. 110. a.
• * 1.90

  Inst. 4 par. 3. Ibid.
• * 1.91

  Proem. par. 9. Reports.
• * 1.92

  Ibidem.
• * 1.93

  Ibidem.
• * 1.94

  Ibidem.
• * 1.95

  Ibidem.
• * 1.96

  Ibidem.
• * 1.97

  Ibidem.
• * 1.98

  Inst. 4. p. 3.
• * 1.99

  Magna Charta an Act of Par∣liament.
• * 1.100

  Nota bene.
• * 1.101

  An. 21. H. 3.
• * 1.102

  An. 51. H. 3.
• * 1.103

  An. 51. H. 3.
• * 1.104

  An. 52. H. 3.
• * 1.105

  An. 3. Ed. 1.
• * 1.106

  An. 6. Ed. 1.
• * 1.107

  An. 10. Ed. 1.
• * 1.108

  An. 20. Ed. 1.
• * 1.109

  An. 30. Ed. 1. An. 33. Ed. 1.
• * 1.110

  An. 34. Ed. 1.
• * 1.111

  An. 35 Ed. 1.
• * 1.112

  An. 1. Ed. 2.
• * 1.113

  An. 9. Ed. 2.
• * 1.114

  An. 12. Ed. 2.
• * 1.115

  An. 1. Ed. 3.
• * 1.116

  An. 2. Ed. 3.
• * 1.117

  An. 4. Ed. 3.
• * 1.118

  An. 5. Ed. 3.
• * 1.119

  An. 9. Ed. 3.
• * 1.120

  An. 9. Ed. 3.
• * 1.121

  An. 10. Ed. 3.
• * 1.122

  An. 10. Ed. 3.
• * 1.123

  An. 14 Ed. 3.
• * 1.124

  Sessions of Parliaments, do not dero∣gate from Re∣gal Power.
• * 1.125

  Inst. 4. page 37, 38.
• * 1.126

  Good Gover∣nors are the Preservers or enlargers of the Govern∣ment. Par∣liaments have ever been the bane of the greatness of the English Monarchy.
• * 1.127

  Insanum Parliamen∣tum.
• * 1.128

  Ann. 1 Hen. 7.