II.

expect an answer from the Observer by the next post, when DISCOURSE he sees how the people will dance after his pipe, and whether his misled partners will go along the whole journey or leave his company in the midway. When he hath "sufficient strength," then it is time, and not before, to declare himself. Till then he will be a good child, and follow St. Paul's advice in part. Stoppage is no payment in our law. Suppose the prince fails in his duty, are the subjects therefore free from that obligation which is imposed upon them by the law of God and nature? When his Majesty objects, that a deposition is threatened, at least intimated, what doth the Observer answer? He doth not disclaim the power, but only deny the fact. Thus he saith:-"It may truly be denied, that ever free Parliament did truly consent to the dethroning of any king of England; for that act whereby Richard the Second was dethroned, was rather the act of Henry the Fourth and his victorious army, than of the whole kingdom"." Mark these words, "that any free Parliament." So it seems, that some Parliaments are not free. And again,-" did truly consent." There may be much in that word also. First, whether they who are overawed with power of unruly myrmidons, may be said to "consent truly" and ex animo. Secondly, whether they who consent merely for hope of impunity, to escape questioning for their former oppressions and extortions, may be said to "consent truly." Thirdly, whether they who consent out of hope to divide the spoil, may be said to "consent truly." Fourthly, whereas by the law of nations the rights and voices of absentees do devolve to those that are present, if they be driven away by a just and probable fear, whether they may be said to "consent truly." Lastly, they that follow the collier in his creeda, by an implicit faith without discussion resolving themselves into the authority of a committee or some noted members, may they be said to "consent truly." That which follows of "Henry the Fourth and his victorious army," shews the Observer to be as great a "heretic in policyb" as Machiavel himself. He might better have said 'the usurper and his rebellious army. For

PART

II.

[The Par

liament subordi

a subject to raise arms against his sovereign to dethrone him
(as Bolingbroke did), and by violence to snatch the crown
to himself in prejudice of the right heirs, is treason confessed
by all men his acquisition is mere usurpation; and for any
person or society of men to join with him, or to confirm him,
is to be partakers of his sin. But God's judgments pursue
such disloyal subjects and their posterity, as it did them.
The greatest contrivers and actors in that rebellion, for a just
reward of their treason, did first feel the edge of Henry's
victorious sword; and after them, Henry's posterity, and the
whole English nation, smarted for Richard's blood. It is
observed, that all the conspirators against Julius Cæsar
perished within three years, some by judgment of law, others
by shipwreck upon the sea, others by battle under the sword 558
of their conquering enemies, others with the same bodkin
wherewith they had stabbed their emperor; one way or other,
vengeance overtook them every mand. What others say of
Richard's resignation, is as weak; which was done by duress
and imprisonment, or at the best for fear of imminent
mischief.

To conclude this section.-God and the law operate both in kings and Parliaments, but not in both alike. God is the nate to the immediate cause of kings, the remote of Parliaments. Kings king.] and Parliaments have the same ultimate and architectonical end, that is, the tranquillity of the whole body politic; but not the same proper and next ends, which in the Parliament is to advise the king, supply the king, and in the constitution of new laws to concur with the king. I grant (to speak in his Majesty's own words, as more full than the Observer's), 'that Parliaments are so essential a part of the constitution of this kingdom, that we can attain no happiness without theme.' But to conclude from hence their superiority above kings, or equality with kings, is to subject the principal efficient to every secondary cause, subordinate, instrumental, or 'sine quá non.'

[See Trussell's Contin. of Daniell's Hist. of Engl., p. 55. Lond. 1636.]

d [Plut., in Vitâ Julii Cæsar., tom. iv. p. 173. ed. Bryant.]

e [Declar. after the Battle of Edgehill, Oct. 23, 1642; in Exact Collect. p. 649.]

SECTION THE FIFTEENTH.

Observ.-"Two things are aimed at in Parliaments, not to be attained to by other means: first, that the interest of the people might be satisfied; secondly, that kings might be better counselled. In the summons of Edward the First (claus. 7. III. 3. dors.) we see the first end of Parliaments expressed: for he inserts in the writ, that 'whatsoever affair is of public concernment, ought to receive public approbation' -quod omnes tangit, ab omnibus approbari debet' or 'tractari. And in the same writ he saith, this is 'lex notissima et providá circumspectione stabilita.' There is not a word here but it is observable. Public approbation, consent, or treaty is necessary in all public expedients; and this is not a mere usage in England but a 'law;' and this law is not subject to any doubt or dispute, there is nothing more known;' neither is this known law extorted from kings by the violence and injustice of the people, it is duly and formally' established;' and that upon a great deal of reason, not without the providence and circumspection' of all the states. Were there no further antiquity than the reign of Edward the First to recommend this to us, certainly so there ought to be no reverence withheld from it; for this prince was wise, fortunate, just, and valiant beyond all his predecessors, if not successors also; and therefore it is more glory to our freedoms, that as weak and peevish princes have most opposed them; so that he first repaired the breaches, which the Conquest had made upon them. And yet it is very probable, that this law was far ancienter than his reign; and the words 'Lex stabilita et notissima' seem to intimate, that the Conquest itself had never wholly buried this in the public ruin and confusion of the state. It should seem at this time Llewellin's troubles in Wales were not quite suppressed, and the French king was upon a design to invade some pieces of ours in France, and therefore he sends out his summons,

Ad tractandum, ordinandum, faciendum, cum prelatis, proceris, et aliis incolis regni,' for the prevention of these dangers. These words, 'tractandum, ordinandum, faciendum,' do fully prove, that the people in those days were summoned ad f [From Reg. Jur. xxix. in fin. Sexti Decretal.]

DISCOURSE
II.

PART

II.

[Edward the First.]

consensum' as well as 'consilium;' and this law, ' Quod omnes tangit,' &c., shews the reason and ground upon which that consent and approbation is foundeds."

Answ. The Observer is just like a winter brook; which swells with water when there is no need, but in summer, when it should be useful, is dried up. For all the absurd paradoxes which he brings in this treatise, he produceth not one authority but his own; and here, to confirm a known truth which no man denies, he cites Rolls and adorns them with his glosses. For my part, I know no man that did ever envy or malign the honour of Edward the First, except Johannes Major; who was angry with him for his northern expedition,'Edvardus Longshanks cum longis tibijs suis venit in Scotiam' But what is this to your purpose? Yes, it makes for “the glory of our freedoms, that as weak and peevish princes opposed them, so he repaired the breaches of them." How do you know that? By this summons also? I see you are dexterous, and can soon make an ell of an inch. But in truth you are very unfortunate in your instances. Edward the First was a much greater improver of the royalty than any of his predecessors, in which respect he is styled by our chroniclers "the first conqueror after the Conquerori." That which was urged to his father, was never that I read of tendered to him,-for the Parliament to have the nomination of the Chief Justice, Chancellor, and Treasurer, but only once in his whole time; and then, being rejected with a 559 frown, was never moved more. It is more probable, or rather apparent, that the lenity, irresolution, and mutable disposition of princes, have been that which hath emboldened subjects to make insolent and presumptuous demands to their sovereigns. Thus for the man; you are as ample for the law,—that it is "lex notissima ;" and not only "notissima," but "stabilita ;" lastly, "stabilita providá circumspectione." A trim gradation. 23 Edw. I.] "Quid tanto dignum feret Observator biatuk?"

[Of the form of

summons to Parliament

[Observations, &c., pp. 5, 6. And see the Writ of Summons in Dugdale, Summons, in an. 23. Edw. I., p. 10.]

[Vide Joh. Major, Hist. Major.

Brit., lib. iv. c. 16. fol. 74. b. ed. 1521.] [Daniell, Hist. of Engl., p. 186.] "Quid dignum tanto feret hic promissor hiatu." Horat., A.P. 138.]

II.

Who reads this, and believes not that some great "mountain Discourse is travailing?" Yet in very deed it is with nothing but a “ridiculous mouse." "Postquam incruduit pugna"-" after the fray grows hot, dishes and trenchers are turned to weapons," said Erasmus. Let your law speak itself. "That which concerns all men, ought to be approved or handled by all men." Who denies it? I shall easily grant you, that this law is not only ancienter than the first Edward, but even as ancient as the first Adam; a part of the law of nature; at least in the grounds of it. But that you may not steal away in a mist of generalities (as it is your use), one word of your "tangit," another of your "approbari debet.”—“That which concerns all men." Sir, "all men" may be said to be "concerned" two ways, either in the consequents of affairs, or in the management thereof. This latter concernment gives a right sometimes to counsel only, sometimes both to counsel and approve, sometimes both to counsel, approve, and act, according to the private constitutions of societies; but the former implies no right, neither "ad approbandum," nor yet "ad tractandum." As, for example, the meanest freshmen are concerned in the statutes and orders of the University, yet are none admitted to debate them but the Visitors, Heads, and at the lowest the Regent-Masters. And this exception holds in all cases, where either inferiors or their predecessors have legally divested themselves of this power by their proper act, or where this trust is committed to superiors by the laws, Divine, natural, or national. Secondly, the counsel, consent, or act, of proctors, attorneys, and generally of all trustees, whether one or more, whether rightfully elected or imposed, according to the latitude of their trust, ought to be interpreted as the counsel, consent, act, of those persons, by whom, or over whom, or for whom they are so trusted, and whose power virtually they do retain; so as a present and posterior consent is not necessary to his Majesty for the exercise of any branch of that imperial power, which by law or lawful custom is annexed to his crown. And therefore Edward the First his summons," ad tractandum, ordinandum, faciendum," which is the same in effect with all summons since, will do your cause no good in the world; unless you may have leave to do 1 [Id., ibid., 139.]