A Union of Hearts, Text (1 of 3)
Redintegratio Amoris, OR A Union of Hearts, between The Kings Moſt Excellent Majesty, the Right Honourable the Lords and Commons in PARLIAMENT, His Excellency Sir Tho. Fairfax, and the ARMY under His Command, The Aſſembly, and every honeſt Man, that deſires a ſound and durable Peace, accompanied with ſpeedy Juſtice and Piety.
AFter a ſhower how glorious is the Sun! The War being ended what endearments ſhould there be between all true-hearted Engliſh men? When hands are tyed, the great buſineſs is to unite hearts: 'Tis the wiſdom of State, when the heart of War is broken, to deal Honorably with the Conquerors, and gently with the Conquered; 'Tis the glory of a State, as wel as a man, to paſs by an infirmity; and far more noble to forgive him whom thou mayſt kill, then to kill him whom thou mayſt forgive: The Title of this Treatiſe I hope will pleaſe every man but ſuch as feed only upon poyſon (which creatures ſoon after break in pieces) that are grown rich in a time of poverty, or fear a Day of Account before the Day of Judgment; ſome only can fiſh in troubled waters; the matter of it I hope wil reliſh wel to wel-tempered pallates, that have the ſalt of reaſon; for my own particular, it hath ever been my hearty prayer, and what I have prayed for, I have ventured to write for, though I know very few that have gained any thing by the Preſs, beſides their own contentment, but hard cenſures; but he that is wiſe when men are fools, is true when they are lyars; I am not in love with my own conceptions, and yet will father them that they be not illegitimate; and the mother conceiving them is a ſingle heart, as an Engliſh man; the ſubject is weighty and many tickliſh points; but ſtrong affections may be diſcerned by weak performances, and I hope men are more merciful then formerly; thoſe that love, wil excuſe, let others bring reaſon for reaſon & I am ſatisfied; to give the Reader rational ſatisfaction I muſt dig deep for theſe precious truths, for taking too much upon truſt, and that to be reaſon which only looks like it, hath occaſioned our late miſchiefs: And 'tis as hard to make ſome men beleeve the Truth, as it is to diſſwade others from Errors.
Wherein as it is ſaid of Errors that to reduce them to their firſt original is to refute them; baſtards love any diſcourſe but to hear of their originals, ſo in all matters of Reformation by, the Interven-of the Sword the foundation, Root, higheſt wel-ſpring, fountain, end, and grounds of all government is in the firſt place to be ſounded, fathomed, and diſcovered, which under favour have been the great defect in many writers in this late Com…ſtion, that ſpeak of obedience to higher powers, of the un…awfulneſs of reſiſting, and of the Rights and Liberties of the people… … drawing from the Fountain, but following the ſtream… of former Authorities, and practiſes of other times, which have …he … nance of example, but not the leaſt force of a Law … ſtriving to know by the Cauſes, why ſuch a Government is appointed or Law is made, as by the effects that ſo they find it to be. Which Impolitiques, is the Reaſon why there are ſo many Practiſes to be reformed in Courts of Juſtice; the Judges finding the courſe of the Court, which they ſay makes the Law to be ſo, they never look further at the reaſon why it is ſo; for if they did but conſider the end and primary intention of all Laws, viz. the execution of juſtice; which conſiſts in giving every man his own, they would rather diſpence with 10000, formalities and niceties in Law, then neglect the doing of juſtice; rather ſuffer all the courſes of the Court to be broken and ſhivered into attomes, then ſuffer one poor man to be undone by a miſpleading or Error in the proceedings, for juſtice is of moral, and of perpetual equity, but the courſe of a Court is but Ceremonial, & the Ceremonial Law of God always gave place to the moral: when it appears fairly to the Court, that the Debt is due, or that the Plaintiff hath title to the Land; if there be as many Errors and miſtakes in the pleadings as there are ſtars in the Firmament, the Judg muſt break through all forms to make the Plaintiff maſter of his right; and to object matters of form and confuſion, is but to tyrannize over poor men, that are not able to buy Juſtice, and to be more careful of the ſhoo then of the foot that wears it; Reſembling herein the ſtranger that admiring the height of St. Marks-Tower in Venice, thinking the Foundation could not be deep by reaſon of the water, was very ſtudious to know, whereupon ſo goodly a Fabrick ſtood: the people ſaid it was ſo, but how it came about was for the Senate to know the reaſon; they troubled not themſelves about it, but I muſt dig deep for this precious truth and go to the ground of the point, which being …ound in the groundſels, the building is not to be ſuſpected; and I conceive:
1. That by nature, all men are born alike free, as we hold all by Frankalmoign, ſo nature is Gavelkind tenure, and there is no power natural but parental, further then every man doth expreſly or implicitly impower other men over him, and every Father is a King in his own family; Abraham, Iſaac, and Jacob in Canaan, had no Government but Domeſtical, Parental, or Proparental. And though I cannot agree with Learned Charron, that the Jews had power of life & death over their Children, which he would prove by Abrahams offering up Iſaac, which he ſuppoſes Iſaac being about 25. would not have ſuffered his Father to have bound him, if by Law he had not had power to kil him; and that the ſame Law continued amongſt the Romans, which no Parents would abuſe or exerciſe only to keep their Children in obedience, yet this is clear that by the Law of nature, the child is to be obedient to the Father, and when the child is ſet to School or an Apprentice; it is the fathers power which he puts into the Maſters hands to correct the child; which commiſſion the Maſter may not exceed; and therefore that moderate correction which the Law allows to be given to Scholars and Apprentices, is to be intended by the Fathers conſent, for if the Father ſhal indent with the Maſter not to correct his child; if he ſtrike him I conceive an Action of Treſpaſs wil lie againſt him, and this power continues till the child be able to provide for it ſelf, for by the civil Law the Father is bound to provide for his baſtard till it be 25. at which time it is preſumed able to help it ſelf, grounded upon Natures Law, that beaſts and birds feed their young ones till they can cater for themſelves and no longer, and ſo it ought to be with us where the child is natural and not legal.
2. This Nature, which makes all alike free, apts and fits ſome with gifts to command, others to obey; 'tis a ground in Nature that wiſe men ſhould govern the Ignorant, the Patriarchs were never impowered, but carried things ſo ſweetly that men freely obeyed them; for when people ſhal perceive that wiſe and honeſt men aim at nothing ſo much as the publick good, every man thinks himſelf happy to be under ſuch Governors, and indeed to prefer ſuch men into places of Judicature is rather a preferment to the people then to them; for as by wiſdom the world was made, and as it is enlightned by the Sun, ſo by Reaſon the Lord wil have it governed; and as in Nature he that is born blind muſt be guided by thoſe that can ſee, ſo muſt ignorant and ill-diſpoſed people be ordered and commanded by thoſe that have the gifts and Spirit of Government and ſuch as are vertuouſly diſpoſed. But all Government is to be aſcribed to neceſſity and reaſon: For the world becoming populous, vitious and licentious, a Government was neceſſary; and though the primary Laws of Nature, as obedience to Parents, to hurt no body, and to do as we would be done unto, be imprinted in the heart of every man, and ſufficient to condemn the Gentiles; yet they are ſo defaced and corrupted by the fall of Adam and original ſin, that God and Nature, for the good of mankind, not only commended but commanded a Government, for man is a ſociable creature, and ſociety is natural; for in Hermites Nature is not changed but tranſgreſſed.
3. All juſt power and authority is either from God immediately who is Lord of all and may appoint one to be ſole Monarch over all the world, if it pleaſe him, as formerly he appointed Kings; or in the people who impower one or more over them. Saul and David had extraordinary Callings, but all juſt power is now derived from the people,1 Sam. …. yet in the caſe of Saul it is obſervable that the people out of pride, to be like other Nations, deſired a King, and ſuch a King as the Heathens had, which were all Tyrants; for they that know any thing in Hiſtory know that the firſt four Monarchs were all Tyrants at firſt till they gained the peoples conſent. Nimrod the great hunter was Ninus that built Ninivy the firſt Tyrant and Conqueror that had no title,Gen. 10.9. and ſo were all Kingdoms which are not Elective till the peoples ſubſequent conſent, and though it be by diſcent, yet 'tis a continuation of a Conqueſt till the people conſent and voluntarily ſubmit to a Government, they are but ſlaves and in reaſon they may free themſelves if they can; for conqueſt gains a title amongſt beaſts, not amongſt men. In France the King begins his Reign from the day of his Coronation, the Archbiſhop asks the people if he ſhal be King, the twelve Peers or ſome that perſonate them ſay Yes, they girt the ſword about him, then he ſwears to defend the Laws: and is any thing more natural then to keep an Oath? And though vertuous Kings have prevailed with the people to make their Crowns hereditary, yet the Coronation ſhews the ſhel that the kernel hath been in▪ Samuel was a good Iudg, and there was nothing could be objected againſt him, therefore God was diſpleaſed at their inordinate deſire of a King, and it ſeems to me that the Lord declares his diſlike of all ſuch Kings as the Heathens were, that is, Kings with an unlimited power, that are not tied to any Laws; for he gave them a King in his wrath, therein dealing with them as the wiſe Phyſitian with his d…ſtempered & impatient Patient, who deſiring to drink wine, tels him the danger of inflamation, yet wine he wil have, and the Phyſitian conſidering a little wine wil do but a little hurt, rather then his Patient by fretting ſhould take greater hurt, preſcribes a little white wine wherein the Phyſitian doth not approve his drinking of wine, but of two evils chooſeth the leaſt: The Jews would have a King for Maieſty and splendor like the Heathens, God permits this, he approves it not, it ſeems to me that the Lord renounces the very Genus of ſuch Kings that have no Laws to govern by but their own wils:Gen. 10.49 for if it be obiected that God had promiſed them a King and a Scepter in Iſrael: I anſwer that when God cals any man to ſuch high honor he gives him anſwerable abilities: when he places any man upon the bench of juſtice he never ſets himſelf beſides the cuſhion; beſides he told thoſe Kings whom he anointed what their duty was, not to exalt themſelves overmuch above their brethren,Deut. 17. to delight themſelves in the Law of God; out of which I infer that the Turks, Tartars and all people that live at the beck and nod of Tyrannical men may and ought to free themſelves from that Tyranny, if, and when they can; to deſire too great a King is to have a River too impetuous; for ſuch Tyrants that ſo domineer with a rod of Iron do not govern by Gods permiſſive hand of approbation or benediction, but by the permiſſive hand of his providence, ſuffering them to ſcourge the people, for ends beſt known to himſelf until he open a way for the people to work out their own infranchiſements.
4. That no Government is divine, I mean, by Gods approbation, (for extraordinary callings I know none in theſe days) but that which is juſt and rational, for there can be no ſuch conveyance of power as is deſtructive of humanity; therefore for millions to be at the Command of one man, to obey him univerſally in all things, is irrational; for wiſe men are but men, and the beſt men are but men at the beſt, ſubject to the faults of the iraſcible and concupiſcible faculties.
5. That to aſſume a Government without a title and to act beyond Commiſſion, to the deſtruction of thoſe whom they ſhould preſerve, is all one in reaſon; and ſo King James (that Phoenix of his age for ſolid learning) agrees that there may be a Tyrant as wel by male-Adminiſtration as he that comes in by Conqueſt: To ſpeak of the ſeveral Conqueſts that have been made in this Kindom by the Romans, Saxons, Danes and Normans, as alſo whether William the Conqueror came in upon his Remittor by ancient title I judg impertinent, but this is clear as Chryſtal that our Anceſtors did voluntarily ſubmit to Kingly politick Government; that if the Conqueror were a Tyrant for want of title, the ſubſequent conſent of the people made him or his Succeſſors lawful Kings being equivalent to an election; as Leah by an after-conſent became Jacobs lawful wife though he was miſtaken in the marriage; and an error in the perſon nullifies the Matrimony. And the act of our Predeceſſors is as ſtrong and binding to us as if it had been our own perſonal conſent: A Law being the act and deed of the body politick in Parliament, voted by the whole Kingdom as the whole men ſees & hears, inſtrumentally performed by the eyes and ears;Pan. anglium. Pan Ae…olium. Pan-Sicilium. The firſt Pa…liament. wherein by intendment every man, woman, and child, is vertually preſent by repreſentation, or elſe a ſtatute could not bind them; and a Law binds not only their makers but their ſucceſſors, for Corporations never die; as the River of Thames keeps thought name the new waters perpetually ſucceed: And though it be not ſo clear when this conſent was given, yet we find that King H. the 1. Beaucleark youngeſt ſon to William the Conqueror, in the 16. year of his Reign called a Parliament at Saliſbury; which I do not conceive ſo much to be derived from the French word ſignifying Freedom of debate, as Parliamentum quaſi pariam Lamentum, the Complaint of the People▪ when there is any difference between the King and his Subjects, his Majeſty gives them leave to chooſe out of themſelves whom they pleaſe as Arbitrators, or Ʋmpiers to determine the matter, wherein the Subject thought himſelf ſecure that he might chooſe his own Judges; and this was but equal becauſe the King choſe the Judges of the Law; and though it doth not appear that this agreement between the King and people, was reduced into writing (becauſe that eaſy co…ſervatory of printing was not then invented) yet who knows but that it was written and ſince defaced, or Imbeziled; for my part I cannot imagine our Anceſtors to be ſo …rrational, that they would ever agree that any man ſhould raign over them as their lawful King, by their ful conſents, but upon this condition, that when they found themſelves oppreſſed and burthened, his Majeſty ſhould be obliged to call a Parliament, and to agree to ſuch Laws (quas vulgus eligerit) as the Parliament ſhould preſent unto him for their happy Government, and not to diſſolve them till they had done the buſineſs they were intruſted to do for the good of the Kingdom; for Parliaments never dye intentionally; and why may not ſuch an Agreement be loſt? As we know the Records of many Statutes are not to be found; yet it is written in the heart of every underſtanding man that ſo it was; for how irrational is it to imagine that the King was not bound to call Parliaments,36. E. 3. &c. which by Statutes ought to be every year or oftner, as need ſhal require: and if the King might diſolve them when he pleaſed what fickle things were Kings, what vain things were Parliaments; and though it have been ſtrongly obje…ed, that when things have been wel ſetled, the King is to have the negative voice in making new Laws, though not in expounding the old; becauſe a Kingdom may ſubſiſt without making new Laws, but not without executing the preſent Laws: I ſay that the objector is defective in ſtated Policy; for the alteration or enacting of new Laws, is as abſolutely neceſſary as to execute thoſe which are made; a Kingdom may be as wel undone for want of the Kings negative voice, as for not executing the Laws already eſtabliſh't, for the wiſeſt Parliament cannot foreſee what wil be beſt for the Common good the next year; Such Exigencies of State may happen, and I obſerve that what hath been objected by the Kings late party to the contrary, hath been that the Law is otherwiſe, but words are the leaſt part of Reaſon; that which Mr. Jenkins writes is moſt true according to the Authorities which he vouches; but what Authority is it; ſome of the Judges of the Common Law; very good, by whom were they made Judges? By the King. How came they by their places? The Eccho is, buy them, for until the ſtatute of 5. E. 6. All judicial places were generally bought and ſold, as Horſes in Smith-feild; for a cheif Iuſtices place, it may be 10000. hath been given, and how long to continue? during the Kings pleaſure; was it ſafe for them to argue for the Liberty of the Subject againſt the Kings Prerogative? the Temptation was very great to be for the Kings ſide in all Arguments; beſides, Parliaments have been diſcontinued and ſhortlived: for my own part I do not much value his judgment, In a queſtion of prerogative, who holds his place at the Princes pleaſure; for to ſtand to my own judgment or the judgment of him whom I elect is much alike; yet as there have been in all ages ſome that have ſtood for the Honor of Chriſt, and reſiſted unto the death; ſo there have been ſome that have argued for the Peoples Liberties. Bracton ſaies, Rex non habet parem in regno ſuo niſi Comites, Forteſ…ue.Barones, et communes in Parliamento, et hanc poteſtatem a populo effluxam Rex habet. Another, that Rex eſt ſingulis major, univerſis minor, that the King hath no Peers in his Kingdom but the Lords and Commons in Parliament, that the King is greater then any Subject, but leſs then all his Subjects, and that he derives all his power from the people. Fits Herbert and Shelley, that the King is ſervant to all his Subjects; ſet over them for their good; and this is the voice of right reaſon, 'tis impoſſible to imagine, that ever any man ſhould have the conſent of the people, to be their King upon other conditions, without which no man hath right to wear the Diadem: for when the firſt Agreement was concerning the power of Parliaments, if the King ſhould have ſaid, Gentlemen, are you content to allow Me my Negative voyce, that if you vote the Kingdom to be in danger unleſs ſuch an Act paſs, if I refuſe to aſſent, ſhal nothing be done in that caſe? Surely no rational man but would have anſwered: May it pleaſe Your Majeſty, we ſhal uſe all dutiful means to procure Your Royal Aſſent, but if You ſtill refuſe, we mſt not ſit ſtill and ſee our ſelves ruined, we muſt ſave the Kingdom without Your Conſent, though we hope not againſt it: But then ſaith the Obiector, where is the Kings power? I anſwer, nothing at all diminiſhed: his Maieſty hath more power then he can imagine for the preſervation and happineſs of the Kingdom, which is the end of all Superiority, but nothing for the deſtruction and deſolation of the people: we ſay God is omnipotent, and yet he cannot ſin nor do any iniuſtice: ſhal we ſay that the Kings power is diminiſhed, becauſe he may not hurt the people, or that a man is leſs in health becauſ he hath many Phyſitians to attend him? nothing leſs: for 'tis impotence and weakneſs to do hurt and iniury: but the King is impowred for the good of the people: true, but he may not ſay that is for the Kingdoms good, which they ſay is for their hurt: what I do for my own good I may undo. Methinks this ſhould ſatisfie every noble Prince; let my Subjects in Parliament propound what Laws they pleaſe for their own ſecurity, 'tis a great eaſe to me: if the Laws be not good they may thank themſelves, if they be good the honor is mine, my conſent being as the Maſter-builder that gives the form and life to the Architecture; and if the Subiect ſuffers I cannot be blamed; but if the contrary ſhould be Law what miſerable things were Subiects; who wil truſt his own father with his life? And who can be merry if a King or Governor may divide his head from his body, or him from his deareſt relations by impriſonment, or otherwiſe, when he pleaſeth; but here lies the root of all our miſery; we take all for gold that gliſters, every thing to be reaſon that looks like it, and every caſe to be Law which we find written in our Law books; whereas Law is reaſon adiudged in a Court of Record, where reaſon is the Genus, & the Court makes the difference from extraiuditial diſcourſ wch may be rationally, yet is not legally iuſt, if it be not reaſon the pronunciation of 10000. Judges cannot make it Law no more then the Venetian Madonnas can by their huge high heels in reality add one Cubit to their ſtature; as for example 'tis a Max me in Law that the King can do no wrong, therefore if he kill or raviſh 'tis neither Murder nor Felony; I ſay 'tis againſt reaſon, therefore againſt Law; for if the King may kill one man he may kill one hundred, and what Courtier dare give any faithful advice when the King may without controul kill him or ſtrangle him, and ſo not be guilty of blood; as the grand Turk that having promiſed to ſpare a mans blood, cauſed him to be ſtrangled, and ſo ſhed no blood: or ſomething like the caſe of the Duke of Gloceſter by King H. 7. this was acknowledged by the Tyrant, who having a mind to kill his brother, his Chancellor told him he might not by Law commit Fratricide, but, ſaith he, is there not a Law that I may do what I pleaſe? and let but Mr Jenkins anſwer, whether thoſe Judges, whoſe Authorities he vouches were not of opinion that whatſoever the King did, it is in Law no offence, and then all that he hath written or can write againſt the Parl…ament wil not bear the weight of a feather: and I humbly intreat all indifferent men that read books more for ſatisfaction then a deſire to contend for any party, but to anſwer me this queſtion: Why ſhould there be any more credit given to the opinion and authorities of the Judges, ſpecially ſuch as payd dear for their places, in matters of difference between the King and his Subjects in point of property, then there was to the Biſhops for matter of Divinity: were they not both the Kings creatures alike? Was it the way of preferment by ſtanding for the liberty of the Subject to get great eſtates? Have not the Iudges in many Countries been the raiſers and firſt founders of great and noble Families? And were thoſe eſtates got by pleading for the liberty of the ſubject againſt the Prerogative? We know who it was, not long ſince, that got a vaſt eſtate, and thinking to ingratiate himſelf with his Prince, ſaid, he was ſeldom or never of counſel in paſſing any Pattent but he reſerved ſome ſtarting hole to make it voyd in Law if need were, which was as good as an act of Reſumption. This is the grand Error, that ſubordinate officers are accountable only to the King, and the King to God, whereas all Judges and Magiſtrates are intruſted by the people: if the people give power to the King to choſe them, 'tis out of a confidence that his Majeſty wil nominate ſuch as ſhal moſt faithfully ſerve the peoples good, and when Arbitrators are impowred to chooſe an Ʋmpire, he may be truly ſaid to be choſen by the parties litigant: this ruines Juſtice, when men in places of Authority more eſteem him that gives them their Commiſſion, then the buſineſs that they are imployed about; when their eyes are more intentively fix't upon the ſtars of their inclinations who preferred them, then upon the publick good of the Kingdom, for whoſe ſake they were preferred: for when a Magiſtrate is made great, the principal intent and meaning of the Law is not his greatneſs and honor, but to advance publick juſtice: I, but ſays one, he is ſuch a mans creature, raiſed by him E viliſſimo pulvere, muſt not he requite his love, and pleaſure his Father? No, juſtice is blind and knows neither father nor mother; the Judg looks not at the manner of the conveyance of his power, how he comes by his Authority, but at the matter of his Commiſſion, and the true end of Judicature: the right underſtanding of one Scripture, 1 Pet. 2.13, 14. makes a good Judg, the words are plain, and being learned (for learning is a ſpecial gift ſanctified for matters of policy and government) obſerves, that Kings are a humane Ordinance as wel as Corporations and Societies, and concludes that all thoſe Scholaſtical diſcourſes of Kings, being Jure Divino, are but tryals of Wit; and by Supream he intends that the King is ſupream to adminiſter the Law, not to make Laws, much leſs break them, and Governors ſent by him are for the puniſhment of evil doers, and for the praiſe of them that do wel, the want of this conſideration ruined the Judges in point of ſhip-money, the greateſt part whereof were very very learned men.
Haec eſt, crede mihi, cunctorum cauſa malorum
Scripturas Domini non didiciſſe ſacras.
I know this Error in judgment undid the Lord Keepers, Finch and Littleton, men of brave ſpirits, had they been for publick liberties: Lord Chief Iuſtice. Banks a man profoundly ſtudied: And Mr Jenkins being made a Iudg thinks himſelf bound in honor, Junare in verba: Engliſh men have ever been moſt thankful to thoſe whoſe favor hath been their quickning ſpirit: 'tis pity any man ſhould be undone for his ingenuity, and though the Law be rather politick then moral, yet I wiſh repentance may be expiatory ſo far as Salus be not indangered: O but, ſays one, all the great Lawyers followed the King! Not ſo neither, I am ſure the politick Lawyer ſtayd behind: Ambition and Avarice make many a man argue againſt their own liberties how many men in the world are content to be ſlaves to ſome few, that millions may be in ſervility to them: it being demanded in a Counſel why ſo many there preſent ſhould be of opinion that the Pope was above the Counſel, it being againſt themſelves: Honeſt Verideus ſaid, the anſwer was eaſie, becauſe the Pope had ſo many Cardinals caps, fat Biſhopricks and rich Offices to beſtow, and the Counſel had none at their diſpoſing. The Biſhops preached at Court to advance Prerogative above Law: ſaying, my Lord the King is like an Angel of light: now Angels all accountable to God only: that the King is Iure Divino, and are ſubordinate Officers Iure humano: whereas the Apoſtle calls Kings a humane Ordinance, and there is not a man in the Army from the moſt noble General to the loweſt Officer, but is as much Iure Divino as the Kings Maieſty or the ſo much deſired Preſbytery: That David never offended againſt Ʋriah, for he ſaith, againſt thee, thee only, O Lord, have I offended: giving the reaſon that Bathſheba was his ſubiect, and that a man may do what he wil with his own: and that his Majeſty was to repent of any oath that he had made for doing Iuſtice, for being intruſted by God, the oaths are voyd: Poenitenda preſumptio, non perficienda promiſſio: The Iudges in like manner ſay that the King is a ſpeaking Law, and carries all the Laws in his breaſt and might call Parliaments and diſſolve them at his own pleaſure: which if it were ſo, what a fooliſh thing was it to ſend for Writs and trouble the Counties with ſuch Iudibrious Elections, like him that in the beginning of his Will deviſed 20000 l. to his wife, but in the latter end for divers good cauſes and conſiderations him thereunto moving, revoked the ſaid Legacy, and left her nothing: When Iezabel had a mind to Naboths Vineyard it was no hard matter to get Iudges to declare the right againſt the ſubiect: In dark times of Popery how eaſie was it for Princes to prefer ſuch men to great places that would be Inſtruments to execute what ever they would have to be done; but I have better thoughts of the preſent times for now judicial places are wel got, and by conſequence wel uſed. I dare ſay there are not more honeſt men (the number conſidered) the of any profeſſion in the world, then are toward Law in this Kingdom, and the Subjects would quickly find their uſefulneſs to the ſtate, were there but one good ſtatute to cut off at one blow all unneceſſary delays in matters of Juſtice, Root and Branch [which are far more hurtful to the Kingdom, then ever Biſhops were] which God and the Parliament grant. The Emperor having a mind to a Subiects horſe, ſaid all is mine, therefore this horſe is mine: the 2 great Civilians, Bartolus, and Baldus were retained: one for the King ſaid, the property of all goods belongs to the Emperor; for he that may command the lives may command the goods of his Subiects, and the uſufruict and poſſeſſion only is the Subiects: the other Lawyer ſaid for the Subiects, that the property is in the Subiect, and dominion only in the King according to Law: the Chancellor being Judg ſaid, all is the Emperors: who gave the horſe to his Counſel, and told the Subiects Councel he ſhould never be a Iudg ſo long as he continued of that opinion: but let no man obiect that I ſeem to aſperſe thoſe learned Iudges which are at reſt: I honor the memory of all good Common-wealths-men: and my opinion of them is that according to the Delatory forms of proceedings, they were good Iuſtices between party and party, but when the Kings Prerogative and the Subiects liberty came in Competition, I affirm it confidently that all Iudgments have not been according to right reaſon: witneſs the caſe of the Shipmony, Knight-hood money, Tunage, Poundage, and Monopolies of all ſorts, which they did not declare illegal: And how many Gallant worthys have they ſuffered to live or dye in Priſon, whom they ought to have ſet at liberty by Habeas corpus? And he that looks into matters with a ſingle eye, may eaſily diſcern that the Fountains from whence theſe late ſtreams of blood have iſſued, were no other but the pride of the Biſhops (a Generation who hated to be reformed therefore juſtly aboliſhed) and the puſillanimity and cowardice of the Iudges; for if the Biſhops had been indulgent to honeſt people, and not Lorded it over the Lords inheritance, (poor ſouls they would have been content to have ſuffered much for quietneſs ſake, might they have but had the freedom of their Conſciences in a peaceable manner) and the Judges been couragious to have executed impartial Juſtice between the King, and Courtiers and the Subiect: and in doubtful matter to have inclined to Liberty, the ſword had never been unſheathed.
And for theſe preſent Reverend Judges, I have Honorable thoughts of them, but this I muſt ſay (elſe I ſhould be a Traytor to my Country) that they tye themſelves too much to old forms, and in Courting the ſhadow of formalities, and conſerving the courſe of their Court, they neglect the ſubſtance of morall Juſtice, in not helping ſpeedily every man to his due when the matter comes fairly before them, for I muſt live and dye upon it, that he doth not deſerve the name of a good Judg that when the right appears to the Court; doth not help the party to it: beleeve it there is not ſo great an enemy to the Liberty of the Subject, as this over-doting upon old forms, as if the Ceremonial Law of the Jews were to be revived in the Common Laws of England; If a Judg or Chancellor, 300 years ago, delivered an Erronious opinion, this muſt bind us becauſe he ſaid ſo; and ſo if one Judg once err, this Kingdom muſt be undone perpetually becauſe the Law is ſo; Right reaſon is the wiſe mans preſident: where Judges are learned and ſolid what need they ſearch for Preſidents? And why may not we make Preſidents for others as wel as they for us? I never yet knew a politique Judg in England that, conſidering the end of the Law is to ſpeedy juſtice, would diſpence with writs to do right; loſe formalities to find eſſentials: twelve Such politique Judges would quickly make the Kingdom happy for moral juſtice: Taxes we ſee are multiplied in all Countries, but what way is there to make the Kingdom amends for all the precious blood and treaſure that hath been ſpilt and expended? Truly one Ordinance for quick and cheap juſtice would do it abundantly, that the poor may have juſtice for Gods ſake, and the rich for reaſonable Conſiderations: The favorites of ſtate have always magnified the happineſs of Engliſh men above all other nations in regard of the Aſſizes that twice a year Queen juſtice rides her Progreſs, and Juſtice is ſent them home to thier doors; but I profeſs the Kingdom is a great looſer by it, 'tis a meer ſpunge to ſuck away their moneys for little or no Conſideration, matters of the Crown only excepted, and why more haſt to hang a man for ſtealing a ſheep then to help a poor man to his juſt Debt? for what a charge is it to try a Niſi prius? and when the matter of fact is tryed the party is never the neerer; judgment is far of, the Defendent may dye, or elſs writs of Error brought: that a man is not beholding ſo much to the Law as to a good purſe to obtain his right; therefore this I would humbly beg of the Parliament for the preſent (becauſe to ſettle a Court of Judicature in every County wil require time and much wiſdom to foreſee and prevent ſubſequent inconveniences) that the Reverent Judges may every Circuit, if poſſibly to begin this Summer circuit, be enabled by Commiſſion to hear and determine, beſides the Niſi priſes, all private differences between party and party throughout the whole Kingdom, the matter to be brought before them by Petition the Defendent to have timely notice in perſon, or at his dwelling houſe by Affidavit of two witneſſes, in caſe he appear not; both parties, to bring their witneſſes and evidences, and the matter being heard to be ſpeedily ended, and execution by the Sherif accordingly, unleſs it be very weighty, and then to be adjourned to Weſtminſter; whereby a difference may be ended in a moneths time, for 5. l. charge at the moſt, which now coſts 50, or 100. l. and is 3 years at the leaſt in deciding, and ends moſt commonly with the ruin of one party; and the other gets ſuch a blow that is long in recovering. I know this wil be counted a dangerous deſign tending to overthrow the Law, but it is only by ſuch as fear rather the overthrow of their own profit more then they value the Law and the Prophets; for I am ſure they cry out for quick and cheap juſtice: and I wil burn my books, nay venture my life upon it, that no man can render a reaſon nor frame an objection againſt this, but that I can eaſily refute it, if this be granted as a maxime of ſtate, that the Publique good and quiet of many is to be preſerved before the private profit of a few, ſay not that I ſhal hereby wrong my own profeſſion: 'tis all one if I did in reference to the Publique good: but this is a great miſtake, Lawyers would get more by ſpeedy Juſtice, for who had not rather give his Councel 40. s. to end his buſineſs in a day, then attend many moneths, and give him 10. s. a time for motion upon motion, references and references: beſides no wiſe man wil go to Law for: as matters are carryed, the worſt end by Arbitriments is better then the beſt can be expected by the Law, all things computed, unleſs in ſpecial caſes; and ſo what is loſt in the hundred is found in the Shire: pray do not ſay this wil prejudice the City, and keep away Termers: ſuppoſe it were ſo, why ſhould all the blood in the body be drawn into one veine? When one member ſwels too much the body pines: but that's another miſtake: for men would beſtow that in Cloaths and Commodities which they now ſpend in Law-ſuits: but I hope time wil make us wiſe: but then comes the old objection, wil you have all things arbitrary and uncertain? Nothing leſs, but every Controverſie to be ended according to reaſon and every former Preſident, and Judgment to be authentical and binding ſo far as there is reaſon for it, and not otherwiſe: the contrary practiſe is as dangerous to the ſtate as implicite faith in matters of ſalvation: for I would but ask this queſtion: If a Judg beleives in his Conſcience that former Preſidents were againſt reaſon, whether if he obſerve them he doth not therein condemn himſelf, but if he ſee reaſon for the Judgment, then it is his own Judgment that leads him, and not the bare Authority of his Predeceſſors; but it wil be alledged that reaſon is malleable, and one reaſon may be brought againſt another: truly in matters of moral Juſtice tis hard to imagine any great difficulty: that cauſe, which at firſt is a bul-ruſh, comes to be a Gyant: differences for the moſt part are plain and very eaſie at the firſt beginning of the ſuit; but when by motion upon motion, the cauſe is put out of its courſe, the matter grows ſo intricate that a poor Clyent can ſcarce get out of the Labyrinth: but my meaning is not that every rational man ſhould be able to underſtand the reaſon of a Law-caſe: but that, that cannot be given Law when there is a good reaſon to be given againſt it: as put the caſe there is a verdict for a Juſt debt, now whatſoever can be alleadged that ſuch a proceſs did not iſſue regularly, yet reaſon ſays that the Debt ought to be preſently paid; and this can be no more called confuſion, then Mithridate deſerves the name of Poyſon.
And now if I ſhould proceed Methodically, I ſhould argue whether the Parliament have ſufficient grounds to raiſe Armies as they did, but that is but to argue whether the Proteſtants or the Papiſts be of the true Religion: and next I ſhould lay down what thoſe juſt grounds and Arguments were: but that would ſavor of Preſumption, having been ſo fully and ungainſayingly declared by both Houſes, and might be unſafe if I ſhould omit any: and at the beſt prove tedious to the reader, my deſire being not to build upon any mans foundation, nor to bring Arguments which have been expoſed to Publique view already, though I judg them better then my own, yet 'tis but a kind of coſenage to the reader, to invite him to make ſeveral purchaſes of the ſame matter, a trick more Common then Commendable in this Printing age: yet ſomething I muſt ſay concerning thoſe matters; which is this, that the Arguments and motives which ſwayed me, to adhere ſo cordially and conſtantly to the Parliament againſt the late Oxford party, were rather Scripture grounds and reaſons of ſtate, and ſelf preſervation, then Law-caſes and Printed authorities; for I always conceived that the King was obliged, to call Parliaments, as often as the generallity of the people beſought him, and to diſolve them til the Parliament ſaid, omnia bene was againſt his oath, and that he was to conſent to all ſuch Laws as ſhould humbly be preſented to his Majeſty by both Houſes; and when I find in our Law books, that the King is a God upon earth, as God is a King in heaven (alas Mr. Jenkins ſpeaketh too meanly and lowly of the Kings prerogative) both in thoſe Incommunicable Excellencies of Infinitneſs and divine perfection; as alſo his Majeſties power and perpetuity, that by a non obſtante, he may diſpence with a ſtatute Law: a pure invention to ſet the King above the Law: I thought thus, that ſeldom did any man refuſe to be a Biſhop or a Judg, and when I read thoſe caſes that it hath been often adiudged that the King could do wrong, I conceive the meaning is that the King ſhould do no wrong; a letter wil much alter the caſe: for I find that when ſmal offences and treſpaſſes are not puniſh't, a reaſon rendred that the Law regards not ſmal things; the book to warrant it carrys the ſenſe, that the Law reckons not the minuts and the odd hours, which make the Leap year; and I find Mr. J…nkins (though certainly a man deeply learned in Law Caſes, and in the Hiſto…ical part of the laws; I wiſh he had ſo wel ſtudied the end of Government, which is the welfare of the people) vouching Authorities by the halfs, for where he ſays that Bracton ſays, the King hath no ſuperior or equal but God, he omits what the book adds, unleſs it be the Lords and Commons in Parliament: and ſo a man might as wel argue, that our bleſſed Savior ſaid, hang all the Law and the Prophets; becauſe he ſaid upon theſe two Commandments, hang all the Law and the Prophets. When I read that the King may pardon murder, ſpecially if the word murder, be not in the pardon, I find it contrary to Scripture, and therefore take it to be no Law: and when I read that the King by his Prerogative may make a 20. s. piece by Proclamation to go currant for 40. s. or to be worth but 6. d. I conceive this to be againſt reaſon, and ſo againſt Law, worſe then that abominable project of braſs money, as the Honorable Commons were pleaſed to call it; for if I have 20. s. in my pocket and the King may proclaim this to be worth but 6. d. then may he take 19. s. and 6. d. from me, and then where is the liberty of the Subjects? Therefore I conceive that the Kings Prerogative in moneys is for the wel ballancing of trade, and equallity of exchanges between us and other Nations: in caſe that other Forraign Kingdoms or ſtates ſhould inhanſe or debaſe their moneys, the King may do the like for the good of this Kingdom: that our moneys be not exhauſted and drawn out of the Kingdom, if it ſhould be much dearer here then there; but the pureſt fallacy that I have met with, is that, how can the Parliament grant a pardon to others, when themſelves ſent to the King to New-caſtle for a pardon: as if a General pardon which is uſually granted at the end of every Parliament, ſhould prove the Parliament men guilty of all the offences thereby pardoned: A general pardon which is in effect as an act of Oblivion, ſuppoſes no particular man guilty, but tollit reatum quoad mundum: but a ſpecial pardon pre-ſuppoſes the offence: and muſt be pleaded: and ſo reaſon ſpeaks it out that the King hath no Prerogative, whereby to hurt the people, but wholly for their good, ſave only in matters of honor and pleaſure, and in a favourable conſtruction of his Grants to be conſtrued according to his intention, and not deception: which Priviledg every Subject in reaſon ought to enjoy, and I wiſh heartily that his Majeſty may enjoy all his ancient and undoubted Royalties, and Prerogatives, that are according to Scripture and right reaſon: beſides which there is nothing that can judg between a Prince and his people but the ſword: and let his Majeſties Honor be ſuperior by many ſtories, then it was for the preſervation of the Kingdom, in all things not injurious to the Subject, which his Majeſtie ſaies is all that he deſires: and God forbid he ſhould have any leſs, but let him not have power to hurt his Subjects, for he that by Law may do ſo, though he were the beſt man living, yet he is a Potential Tyrant, and his Subiects may fear him, but they can never love him: and the conceit of ſuch a power, is enough to ſpoyl the beſt Prince living: I know ſome Hiſpanialized Courtiers and Common Lawyers that having reſted in the Letter of the Law, not looking into the true meaning of it, have made his Maieſty beleeve that the Parliament have done him wrong, and taken away his Forts and Caſtles from him. What reaſon can Mr Jenkins, or any man give why the King may not as wel command all the money in the Kingdom as all the ſtrength in the Kingdom, or all the horſes in the Kingdom in order to the Militia? As the Pope commands temporals in order to ſpirituals, for money is the ſinew of War: Whereas his Maieſty was never intruſted by the people againſt themſelvs, but againſt forraign forces, and that I take to be the meaning of the Oath of Supreamacy, which was intended againſt the Pope, that the Pope is in no ſort head of the Church, other meaning I know none in a ſpiritual way but civilly, and ſo it was declared by that gracious Queen Elizabeth about the 13. year of her raign, which is or ought to be printed: For did ever any rational people put the ſword into the hands of any man to have the point of it turned againſt themſelves? that 1 Sam. 8. proves that Kings are to fight the peoples battels, not the people to fight their quarrels: and if it be obiected that the King never intended to hurt the ſubiect with their own ſword; I anſwer that that is all one, if the people ſay otherwiſe, for they muſt iudg, & becauſe al the people cannot meet together, therfore the Parliament muſt judg, for not to argue the point concerning the power of the Militia, wch is but to argue whether a man be bound to kil himſelf. Put the caſe there were 20. men travelling together in a dangerous wilderneſs, they intruſt one as a Captain to carry the ſword, to defend them againſt all aſſaults, & cōmand them in order to their beſt ſafety, and make him Governor: at laſt they are of opinion that this Cap. intends to betray them, they intreat him to redeliver the ſword, he promiſes to be faithful to them: now in this caſe if there were no apparent ground of jealouſie and diſtruſt, the 19. are to be blamed for their levity & diſloyalty, but yet this Governor is bound in juſtice and common honeſty to reſtore the ſword and not to make a war againſt the 19. to reduce them to obedience; for if they wil be deſtroyed, who can help it? God doth not ſave any man againſt his wil, but of unwilling makes him willing: nor muſt a Kingdom be ſaved againſt their wils: a Prince is not to lead his people by their noſes, but to open their eyes to ſee their own welfare and imbrace it: which if they wil not, their deſtruction is of themſelves, they do ill, but the Lord wil not have them cudgelled into obedience, for this we find an example in Scripture of the 10. Tribes which revolted from Rehoboam their lawful King who had 180000. choſen warriours to fight againſt them,2 Chro. 11 but the Lord forbad; and though that be called a rebellion, in the laſt verſe of the former Chapter, the reaſon of that is, becauſe Rehoboam was King by Gods inſtitution and immediate appointment, and in ſuch a caſe m…ght Rehoboam have ſaid, ye have not rejected me but the Lord; but now all lawful power is originally in the people, and all lawful Governors choſen by them;A Conqueror hath Jus in re, not ad rem. (for a Conqueſt is but a great …obbery) good Kings raign by Gods approbation, Tyrants by his permiſſion til the people can free themſelves; Kingdoms at firſt were Elective till good Kings prevailed to have their children ſucceed them, and certainly hereditary Kingdoms are beſt to prevent Factions: and therefore the 19. wil have their Captain command them no longer; he may not fight againſt them, if he could procure any to take his part: nor wil it avail to ſay that the 19. are Ignorant or diſtracted; for he muſt not queſtion the judgment of his Electors: if the people know not how to chooſe a King, then the Election is voyd, and ſo a defective title, but they that have judgment to conſent, for reaſons beſt known to themſelves, may alter and diſ-aſſent, for this eaſe ſtands upon a ſpecial reaſon, differing from all caſes of bargains and contracts, that rights veſted cannot be deveſted, and what pleaſed at firſt may not diſpleaſe at laſt: the King is born for the good of his ſubjects, not they for his good, further then to give him honor, reverence and recompence: this is the wil of God to prevent Wars, which muſt otherwiſe follow inevitably: and 'tis a principle of right reaſon that as things are creat…d, ſo by the ſame power they are d…ſſolved; they which may inſtitute may deſtitute; it ſtrengthens our faith in the reſurrection, that the ſame power which made us of nothing can raiſe us out of the duſt. Miſtake me not, I ſay if all the 19. ſhould ſo agree, if but 3. or 4. ſhould adhere to the Captain, I d…liver no opinion in that caſe: but I am againſt that opinion that if any County or burrough. Town ſhal ſend for their Knights and Burgeſſes to return home and vote no longer, that in this caſe they ought to come back, becauſe no man can be repreſented longer then he pleaſes; this erew to deſtroy the frame of the Government: For though every ſeveral Shire and Burrough make their ſeveral Elections, yet they are ſent not only to vote for the good of their own County or Town, but for the general good of the Kingdom; and they make not ſeveral diſtinct repreſentative bodies, but one intire repreſentative body in the nature of a joyntenancy: as the Soul is in every part of the body, ſo every Member ſits in the Houſe for the good of the whole Kingdom, as if choſen by all the people: the ſeveral Elections being by agreement for the more conveniency. But when B…rgeſſes are choſen for one Town, all the reſt give their conſents to ſuch an Election, and ſo in Law it may be called the Election of them all, as between partners in a Drade, one brings 1000 l. the other as much, this is layd out in Commodities as a common ſtock, now none of them alone hath power over any part of the goods, though it may be purchaſed with his money, but all things is to be done by a joynt conſent, no diſſolution to be by parts, that is to diſmember the body, otherwiſe this would follow, that if two Burgeſſes voted only for that Town which ſent them, if one voted in the Affirmative and the other in the Negative nothing ſhould be done in that particular: but that which I chiefly intend in this diſcourſe is not only that there may be a right underſtanding but endeared affections between the King and Parliament: and truly I know no way like this, to be perſwaded of each others ſincerity, that they acted according to their judgments & that light which they had revealed to them: that his Majeſty would beleeve, as the truth is, that the Right Honorable Lords and the Honorable Commons did nothing but what they conceived themſelves in Honor and Iuſtice obliged to do for the ſafety of the Kingdom, and that otherwiſe they could not have anſwered it to thoſe whom they repreſented: and that the Parliament would be perſwaded that his Majeſty did nothing but what he conceived himſelf in Honor bound to do, without which he could not have given an Account to God nor his people with comfort; for poſſibly there may be an invincible Ignorance of one anothers right. The Cananites were in poſſeſſion of a lawful title, the Lord commands Ioſhua to diſpoſſeſs them; who having a Command from God may lawfully fight, and they not knowing of Gods Command might lawfully defend themſelves: now in this caſe if the Lord had not intended a National Church & the deſtruction of the Cananites, why might not an Iſraelite and a Cananite have been good friends, and ſaid thus one to another, truly what you did you had ſome colour of reaſon for it, at leſt you thought you did for the beſt, it may be I ſhould have done ſo, had I been in your caſe: therefore let us do as we would be done by, as there have been Arguments framed againſt each others proceedings, ſo I wiſh heartily that the Kings Majeſty and thoſe evil Counſellors who were about him (hee's now guarded with Angels in compariſon) would argue thus for the Parliament; the Kingdom petitioned both Houſes to raiſe Arms for their preſervation; what could the Parliament do in ſuch a caſe, having voted that there was an apparent deſign to inſlave the people? had it been ſufficient for the Members to have told the people; Truly we gave his Majeſty faithful advice, beſought him to reform what was amiſs, but he hearkned to his Courtiers and would not; and ſo we left him to do what he pleaſed. What would the Kingdom have ſaid in ſuch a caſe? would they not have exclaimed againſt their Knights and Burgeſſes, as the French do againſt their twelve Peers which being intruſted to oppoſe Tyranny prevaricated. Oh ye unfaithful men I was there ever ſo great a breach of Truſt in the world heard of? Did we Elect you to infranchiſe us, and do you ſuffer us to be inſlaved? Would you not put us into a Poſture of war to defend our ſelves, but ſuffer us to be deſtroyd inſenſibly, ſince you wil not deliver us, our freedom muſt come ſome other way; what can be ſaid in reaſon againſt this? And ſo that the Parliament would argue for his Majeſty, amongſt others to uſe but this: What? muſt his Majeſty give his Royal Aſſent to all ſuch Laws that both Houſes ſhal preſent unto him? Put the caſe then, that the Lords and Commons in England preſent an Act for the free exerciſe of the Proteſtant Religion in this Kingdom, and the Lords and Commons in Ireland preſent an Act to his Majeſty for the eſtabliſhing of Popery in that Kingdom; what ſhould his Majeſty do in ſuch a caſe? Muſt not his Maieſty ſee by his own eys and make uſe of his own Iudgment and diſcretion what is fitteſt to be done therein? Are not the ſinews of the Leviathan perplexed, as Iob ſpeaks, is not this a ground to ſcruple the verity of that doctrine, that his Maieſty ought by his oath to ratifie ſuch Laws as ſhal by both Houſes be agreed upon? I have known many Clyents reconciled after tedious ſuites, and long endeavoring the ruine of one another; but it hath been upon this ground, that they have verily beleeved that nothing was done by either of them maliciouſly, but in order to the obtaining of their ſeveral rights; and that by Gods bleſſing hath been an expedient, not only to tye their hands, but to unite their hearts, that it may be ſo between the King and Parliament, is my dayly prayer: til it be ſo, this Kingdom wil not be ſetled in peace and tranquillity. The very truth is, that by the Letter of Scripture and ſome Law caſes, the King had a Colour to do what he did, as Gods Ordinance, having an undoubted right to the Crown by deſcent, as his proper inheritance which no other Court in the Kingdom could have the leaſt ſhadow of reaſon to do if they ſhould break truſt with the people.
I have but one ſtair more to mount before I come to the Army, and that is, how far the Kingdom is to be obedient to the King and Parliament in all caſes? And herein I deſire to be carefully obſerved; becauſe the Kingdom cannot be convened in it's diffuſive body, therefore it is formed into an artificial body in the high Court of Parliament, which without all queſtion is the Supream Court, from which there is no appeal to any other, concerning poſitive Laws, for the deciding, and determining of the arduous and moſt difficult affairs of the Kingdom, both for titles of land when they pleaſe, and all the great turnings and windings of ſtate, it being moſt proper to determine the greateſt matters in the higheſt Court; in which caſes though the judgment of Parliament be not unerrable, becauſe the members not impeccable: yet it is Inevitable; for the Publique judgment of ſtate reſides there; and it is the wil of God that for the preventing of wars and bloodſhed that there ſhould in every nation be ſome ſupream Court to whoſe determinations every private man is to ſubmit, as it is in Deut. Deut. 17.11.poſſibly many of the Iews might conceive that the ju…gment of the Iudg…s & Levites was not always right, yet it muſt ſtand to prevent a greater evil; I am not of opinion with learned M Jenkins, that acts of Parliament, which carry a ſeem…ng repugnancy are voyd, or that the Judges have power to controle acts of Parliament, and conſtrue them to be void, for this is to erect a higher tribunal; the Judges are obliged to expound the Statute according to the intent of the makers, otherwiſe they that are at the Oars ſhould row againſt them that ſit at the ſtern. The intent of the Legiſlators is the Empreſs and Qeen Regent, which the Judges are ſtrictly to obſerve, and the…efore that objection of a repugnancy in the countenance of this Pa…liament (for how can ther… be a Parliament every 3 year, if this continue 7 years) is but a flouriſh, for in all acts, grants, and wils, ſuch an Expoſition is to be made that every word may have its weight and be of force the meaning is pla…n, that after this Parliament the…e ſhal be a Triennial Parliament, & ſome incongruity, no more then when a man makes a Leaſe for 7 years & after from year to year, and no ac… ſhal be conſtrued to be voyd when by any reaſonable intendments it may be made good; the Judges being Aſſiſtants in the upper Houſe, cannot but know the meaning of the ſtatute if it ſhould be penned obſcurely, and by the ſame reaſon they ought as wel to take notice of every private act as thoſe which are general, and not to hazard the right of the Subiect upon a nicity of Pleading which is ſo fatal to many mens rights: but it behoves Mr. Jenkins to hold that Iudges may expound acts of Parliament to be void: when himſelf being a Iudg in Wales, nullified Ordinances of Parliament, made for the liberty of the Subiect, which he ought to look upon as an Ordinance of God, not to be diſputed but obeyed: but this is the fruit of his ſtudying Law upon the Sabbath days: whereof he was wont ſo much to glory, that he gained one year in 7, in his ſtudy: but all the hurt I wiſh him, is, that he would now ſtudy the Law of God, which is the only touchſtone of all humane Actions, and the Archetype of all Governments: and what is againſt it, is pure innovation. But this I agree, that a ſtatute againſt the law of God or nature is void, for man having no hand in making the laws of God or nature, they may not intermeddle in the Changing or repealing of them: but any poſitive law made by man, may be altered by the ſame Authority: and therefore the meaning of that in Dan. like the Laws of the Medes and Perſians, which are unchangeable, is to be intended, either that thoſe Laws were only a ratification of the Law of God or nature: a… the Counſel of Trent, that gave Authority to the holy Scripture, or elſe that they might not be altered by the Emperor without the peoples conſent. In the next place I conceive that no fundamental law of this Kingdom can be altered by the King and Parliament: but my meaning is, that nothing is fundamental but what is for the ſafety and happyneſs of the people: that which was no Law before it was written, that may be altered; but the happineſs of the people was a Law before all written Laws. Magna Charta was Law before it was written, and collected but for eaſier Conſervation, being for the peoples happyneſs: and that ſtatute in 42. E. 3. that every Law made againſt Magna Charta, ſhal be void, is no more then the voice of Reaſon: for the Foundation cannot be removed, ſo long as the building ſtands. It troubles me to hear, when I am ſaying that Lawyers ought not to make the trouble and diſquiet of poor men, the Baſis of their Grandor; And that it were happy for the Kingdom, if the Parliament would device ſome expedient for ſummary juſtice: what ſaies one, wil you deſtroy all, and change the fundamental Conſtitutions of the Kingdom? As if the eaſe and welfare of the people ſhould be their deſtruction; I look upon it as one of the moſt neceſſary works to be done in this Kingdom, and that wherein there wil appear much oppoſition, and if it be not ſuddainly done, it wil not be done in this Generation; our Laws are actually or potentially the beſt in the world, for if any thing be amiſs, the Parliament may reform it according to right reaſon, which is the ſoul of al humane Laws without exception, & no Law ought to live longer then the reaſon of it continues: away with all bugbear objections, and after Naſeby fight lets never diſtruſt God for any thing: I mean let us have ſuch Laws as are not directly againſt Scripture: and for which ſome reaſon may be given beſides the courſe of the Court: for that, for which probable reaſon may be rendred on both ſides, is not fundamental; as the eldeſt ſon to inherite the whole eſtate: certainly there ought in all reaſon ſome proviſion to be made for the young Children, if the Father make none for them in his live time: but true it is, that many poſitive Laws are fundamental ſecundarily, to alter which would be ful of danger and inconveniences, unleſs it were moſt evident, that great utility would thereby ariſe and accrue to the Kingdom: but that is not my preſent work, ſomething I intend concerning Government in general rules by which no man can conceive himſelf prejudiced: as by general rules of Phyſick, no wiſe man can expect to be cured.
1. That the people girt the ſword about the King, the King ſays our Law books, is the fountain of honor, and it is true for the peoples good, therefore doth the King make Judges and Magiſtrates great, that they may not be afraid to do right and juſtice to their brethren, ſo that indeed the ſtate confers honors by the King, as the King gives the Alms by his Almoner: they preſume that the King wil make no Lords but ſuch as ſhal be an honor to the Kingdom, in whom the Kingdom ſhal be preferred: the Judges Robes are for the Kingdoms good, to ſtrick a terror into offenders; if the Kingdom or the Parliament which is the ſtate contract, can juſtly except againſt thoſe which are honored, that is, if they by their greatneſs oppreſs the people, and Lord it over poor men, the honor ought not to continue, for all Priviledges and Preeminences are forfeited by abuſers: no Priviledg which is a private Law muſt oppoſe Publique welfare: Indeed nothing done without the ſtates allowance is allowable, that is nothing againſt the fundamental good of the people; and truly the main end of Parliaments is, to ſuperviſe the Publique Magiſtrates, to ſee that Miniſters of juſtice be juſt and execute juſtice impartially: If Kings did always prefer good men and conferr the great offices of truſt and judicial places upon the moſt idoneous and beſt men in the Kingdom, which are Infra Cauſam meriti, that beſt deſerve them, there would be the leſs need of Parliaments; I mean officers of the Kingdom, for there are officers of the Empire for the Adminiſtration of Publique juſtice, and officers of the Emperors as his Domeſtical ſervants; anſwerable to our diſtinction of the Kings natural Capacity, and his politique Capacity, art is always the perfection and never the deſtruction of nature. Let me but humbly obſerve a little defectiveneſs in ſtate policy concerning the Kings Councel: That the Regal heires have not in their princely education, Tutors to inſtruct them in that which moſt concerns the good of the Kingdom, which is, Councellors to acquaint them in the fundamental laws of the land: how improper is it, that the Kings Counſel ſhould be leaſt of Counſel with his Majeſty: but by per-audience to gain other Clyents, and be ingaged in other mens buſineſs, when they ſhould be attending his Majeſty, ſtil preſenting the law before him, which is the golden rule of juſtice. Judg Forteſcue holds it neceſſary for the peopl…s happineſs, that the King ſee with his own eys, what is for his peoples good, that ſo he may reward the moſt vertuous, the Fr…nch King is enioyned to pray ſo much every day, to be exemplary to the people, how happy would it be if the nobles and Grandees of ſtate would ſtudy that fundamental and true end of Government, which is the w…lfare of the people! The young Prince of Perſia hath 4, Tutors for Religion, as many for the Law, but 2, for Martial Exploits (for they ſaid for the King to know how to ride the Great horſe is but half as good for the Subiects, as to know the law by which he wears his Crown) and one Tutor for every moral vertue, patience, courteſy, temperance, chaſtity &c.
2. Not to argue whether we live under a Government mixt and co-ordinate, or ſimple and ſubordinate; 'tis a common Tenent that the Empire France and Spain are merum Emperium, England, Sweden, Denmark and Poland a mixt Empire, the Venetians a pure Ariſtocracy, Holland, Geneva, &c. Juriſdictio ſine Imperio: that, of the 6. Kings that be in Chriſtendom, Fran…e and Spain have too much power, Sweden and Poland too little for their title, England and Denmark juſt enough to make themſelves ſplendid and their people happy. All agree that the King cannot make a Law without a Parliament, and I cannot but exceedingly magnifie the mixture of the 3. eſtates; the ſuperlative truſt by Law is in the King, Lords and Commons; ('tis but loſs of time to look back into the power of the Biſhops, for 'tis not much above 100. years ſince there were Statutes enforced for the Popes ſupreamacy) yet ſo as if the Lords and Commons perceive that the King by evil advice undermines the ſubjects liberties to the manifeſt indangering of Salus, they muſt then neceſſarily ſuſpend the operation of that mixture; as when 3. men are to cary a weight, if one plucks back his hād, the other 2. muſt bear it: for the conſideration of publick utility is always equivalent to a neceſſity, Cauſae neceſſitatis & util tatis aequiparantur in Jure: and therefore it is an error to ſay the people do not truſt the right honorable Lords becauſe they do not chooſe them: Their Nobility was acquired and is continued by noble actions; thoſe noble Peers that have not deſerted the Parliament, but continued faithful and adventured their lives and honors for the publick ſafety deſerve eternal praiſes, and in the multitude of ſuch Counſellors there is much ſafety to this Kingdom; for all true Honor conſiſts in vertuous endowments and their improvements, the principal whereof is faithfulneſs to the Kingdom, expreſſing their honorable endeavors after that in works of m…rcy, juſtice, peace and love. The King is ever preſent by his power; the Lords preſent in their perſons, and the Kingdom repreſented by their choyceſt members, who are impowred for themſelv…s and the whole Kingdom, ſo the whole Kingdom is figuratively preſent by a part taken for the whole (therefore the words Comm…ſſioners or Arbitrators, or Feoffees in truſt, of exceeding their power and ſuch inſtances uſed by many, are in my opinion very improper); now the honorable Houſe of Commons being beſt acquainted with the Kingdoms Condition, all good laws do move primarily from them, which being tranſmitted to the Lords for their Lordſhips concurrence, it is no ſmal ſecurity to this Kingdom in peaceable times, to have the reaſons of the Law ſolemnly debated & perpended in the preſence of the reverend Iudges; for ever, amongſt Eagles eyes, two eyes may ſee more then one, and after their Lordſhips Concurrence, the Kings Majeſty deſires to be ſatisfied of the reaſon and equity of the Law before he gives his Royal Aſſent; by ſuch wiſe and great deliberations Counſels prove moſt mature and happy, as Corn that is long in ripening. I conceive that the noble Peers were originally intruſted by the people as Guardians of the Contract which the King made with them, and theſe noble Lords follow the King as the Planets the Sun in the Zodiack, from whom they receive their light and ſplendor for the publick good; and the prevarication of ſome which have given his Majeſty pernicious Counſel, as Eve tempted Adam (that had been ſufficient to have undone himſelf and his poſterity, but that the Law of England lays the blame upon the evil Counſellors) makes the fidelity and gallantry of the reſt more glorious and illuſtrious: I would but humbly beg from that noble body, thoſe great luminaries of State, that as their Lordſhips and their noble Families are exempted from the Preſbyterian Di…cipline, ſo they would be nobly pleaſed to diſpenſe with ſuch who with any quiet of conſcience cannot conform thereunto; that no coactive violence may be offered to ſuch as be religious and peaceable in their differences, for that no rational doubt can be deſtructive of State-policy, as that noble Pe…r ſaith,Lo. Brooks. who went to heaven in a fiery Charriot. And being upon my knees I would humbly beg of our moſt honorable Worthies 3. things:
1. An Ordinance for the Redemption of our poor brethren in Argiers and Tunis, which are Captives and Galley-ſlaves to the Turks: If money be wanting, oh, why is there not more general Collect…ons for that bleſſed purpoſe, far better then to give to free-ſchools, and becauſe they are far of;
2. That in the interim the many poor ſlaves and hunger-bitten Priſoners, in and about this great City and other places of the Kingdom, which are ready to ſtarve, and no more able to pay thoſe moneys which they lie in for, then to flie; and certainly to clap a man in priſon til he can flie or pluck down Pauls, would be a great blemiſh to the Government of this Nation: Reaſon commands no impoſſible things, and a good Ordinance to be made for the ſale of mens eſtates for the paym…nt of their juſt Debts.
3. That ſome effectual courſ maybe thought upon to abate the price of Corn, ſpecially barley, that the poor might not ſtarve, which might eaſily be done by allowing fewer ale-houſes, and the ſtatutes for ſelling a quart of beer or ale for a peny, ſpeedily put in execution. What a ſad thing is it, that in a plentiful Kingdom many poor people ſhould be ready to ſtarve: oh, where are the bowels of Engliſh Magiſtrates? why ſhould rich men have ſuperfluities til poor men have neceſſaries? Let the King and great ones feaſt and the poor many times faſt, but let no man ſtarve; truly the …ery Eſſence of a Parliament is freedom; a new Pope kept a Gawdy day to reioyce, becauſe all his ſins were forgiven, and that he was now free from the cenſure of all men: and being a Gentleman, ask't a Cardinal, what ſhal I do now to ſhew my love to the Romans? ſaid he, pray Sr. forgive us all our ſi…s, and make us as free as your Holines. The Honor ſhal be the Parliaments, the happineſs, the peoples. And here I would humbly pray thoſe excellent Juſticiaries to receive all complaints, Petitions, and Informations from whomſoever they come: I have thought ſometimes attending ſome clients buſineſs, and hearing poor ſuitors complain of their long attendances, but if a man had ſome Information to give of a new Spaniſh-Fleet, or ſome dangerous …nvaſion to be made againſt this Kingdom, he could ſcarcely be heard: in Holland when the general ſtates are in Councel at the Hague, there are always ſome appointed to come forth to receive any information that can be given for the Publique good, and if any man ſays he hath buſineſs of Importance to Communicate, he go…s into the Counſel houſe: if it be frivolous he is wel laughed at for his pains, and it may be fined: but to what purpoſe ſhould there be a freedom of debate in a Counſel▪ if there be not freedom of Information to the Counſel?
In the laſt great froſt the River near Anwerp (that beautiful town in Flanders, which Charl…s the 5. ſaid, was fit to be ſeen only upon Holidays) was all frozen over as the Thames was: and about 2. a clock in a fair Sunſhine afternoon, there being at the leaſt 1000. people upon the River, the Councel being ſate, there comes an old fiſherman running and ſweating to the Common-Counc…l door, and ſaid, he muſt be admitted inſtantly about extraordinary buſineſs, who went in and told the Councel, that if they did not uſe ſome policie to get the p…ople of from the River, they would inſtantly be drowned: for he perceived by the clouds, or ſome skil that he had, that the Thaw would be ſo ſuddain, that the ice would break within a quarter of an hour. The Councel without any further diſpute (for the matter had not been great if he had been miſtaken) Commanded inſtantly the bells to be rung backwards, and the drums to be beat up, which the people upon the River hearing, thought it was a fire in the City, or that the enemy was approaching or ſome other extraordinary matter, made all poſſible ſpeed From the river; yet not ſo faſt but that there were at the leaſt 50 drowned, for it grew dark of a ſudden; there was a great ſhower the Ice broke, and the Thaw ſo unexpected that in probability had not this poor mans information been received, the moſt of them had loſt their lives. How hard a thing is it for Clients and Counſel too to get into many places of Juſtice? The Door-keepers are ſo haſty and angry if a man do but ask them any queſtion in the moſt ſubmiſſive language, and many of the Clerks ſo teaſty and briniſh, as if they were compoſed of that pillar of ſalt that Lots wife was turned into, and ſo unaccoſtable that I profeſs a man may far eaſier have ſucceſs to a noble Lord, or a worthy Member then to them: 'tis a ſhame to ſee how they make poor Clients dance attendance after their pipes; I profeſs if they do not reform their curriſhneſs they ſhal be known to all the Kingdom for their inhumanity; I confeſs the ingenuity, and readineſs to give content with all civility, of thoſe which attend the right honorable the Lords and Commons, and ſome others, is much to be commended: O but how difficult a matter is it to get a motion in ſome places of Juſtice? if a man could be diſpatcht after four or five attendances it were brave, and that which is moſt lamentable, 'tis all one if a mans Client be a priſoner: whereas a politick Judg would ask at his firſt ſitting, Is there any motions concerning life or liberty or dower for Widows or Orphans, and diſpatch poor men firſt; & them that can ſpare moſt Fees let them tarry; I know one that hath been aſſigned Councel for 26. Paupers & could never be heard or above four or five of them; 'tis a po nt of great …ngenuity in Lawyers to m…ve firſt for hi… poor C…nt without his Fee; I have heard many of my lea…ned Maſters that they would freely move for any poor man as often as, he ſhould deſire, if it m…ght not hinder them f…r their other Clients; 'tis a gallant ſpirit trul…, though it be t… commend our ſelves, yet 'tis a truth, and a man may commend himſelf to be co…manded and imployed as David did; but ſome are l…ke Rocks and wil not be moved. What do you to me with your Paupers at the latter end of the day? When God knows he came two or three hours before the Cou…t was ſate. What! do you think all to be heard? As if we came n…t to be h…a d bu… to hear others.