that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
and in the 3. Chap. Our Lord the King hath ordained that a Woman after the death of her Husband shall recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord the King at his Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings words are We intending to provide Remedy in our Parliament have ordained c. 28 Edw. 1. c. 5. The King wills that the Chancellor and the Justices of the Bench shall follow Him so that he may have at all times some near unto him that be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We will and Grant 1 Edw. 2. begins thus Our Lord the King willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10 Edw. 2. It is provided by our Lord the King and his Justices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1 Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5 Ed. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10. year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be our Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition put in the said Parliament In the year-book 22 Edw. 3.3 pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1 Ric. 2. hath this Beginning Richard the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of the Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to or Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Rich. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth that His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Rich. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of his Lords and at the special Instance and Request of the Commons hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons in Parliament Assembled and by the Authority of the same hath ordained Unto this King's time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen. 7. Reign which was so well approved that the Petition it self is turned into a Statute It begins thus To the Right Worshipful Commons in this present Parliament Assembled Sheweth to your Discreet Wisdoms the Wardens of the Fellowship of the Craft of Vpholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it Concludes Therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly in the Statutes of Edw. the 6. Qu. Mary Qu. Elizabeth K. James and of our Sovereign Lord the King that now is there is no mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general Terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers days it was punctually expressed in every Kings Laws that the Statutes and Ordinances were made by the King And withal we may see by what degrees the Styles and Titles of Acts of Parliament have been varied and to whose disadvantage The higher we look the more absolute we find the Power of Kings in Ordaining nor do we meet with at first so much as the Assent or Advice of the Lords mentioned Nay if we cast our eye upon many Statutes of those that be of most Antiquity they will appear as if they were no Laws at all but as if they had been made only to teach us that the punishments
common Good Another Doctrine of Grotius is That the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth That the People may chuse what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. cap. 3. Also That the People chusing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private Men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiors is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us He rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition That in some places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion That People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right And you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this That the People may grant away their Power without retaining any part But what is this to what the People have done For though the People may give away their Power without reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his favour the point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged That in all presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings part who are in possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the Peoples labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an instant without any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius That although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implied that it was upon condition to be well governed and that the Non-performance of that implied Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said That the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected That he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be That by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say That it is by any necessity of the Law of Nature or by any positive Law of God he teacheth That non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth only approve it ut humanum and humano modo He tells us further That Populus potest eligere qualem vult gubernationis formam ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they may make temporary Kings as Directors and Protectors jus
they are necessitated to relinquish that Supreme Power which they think they exercise and to delegate it to a few There are two Parts of the Supreme Power the Legislative and the Executive neither of these can a great Assembly truly act If a new Law be to be made it may in the General receive the Proposal of it from one or more of the General Assembly but the forming penning or framing it into a Law is committed to a few because a great number of Persons cannot without tedious and dilatory Debates examine the Benefits and Mischiefs of a Law Thus in the very first Beginning the Intention of a General Assembly is frustrated then after a Law is penned or framed when it comes to be questioned whether it shall pass or nay though it be Voted in a full Assembly yet by the Rules of the Assembly they are all so tied up and barred from a free and full Debate that when any man hath given the Reasons of his Opinion if those Reasons be argued against he is not permitted to reply in Justification or Explanation of them but when he hath once spoken he must be heard no more which is a main Denial of that Freedom of Debate for which the great Assembly is alledged to be ordained in the high Point of Legislative Power The same may be said touching the Executive Power if a cause be brought before a great Assembly the first thing done is to refer or commit it to some few of the Assembly who are trusted with the examining the Proofs and Witnesses and to make Report to the General Assembly who upon the Report proceed to give their Judgments without any publick hearing or interrogating the Witnesses upon whose Testimonies diligently examined every man that will pass a conscientious Judgment is to rely Thus the Legislative and Executive Power are never truly practised in a great Assembly the true Reason whereof is if Freedom be given to Debate never any thing could be agreed upon without endless Disputes meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governours and the governed the one cannot be without the other mutuò se ponunt auferunt where a Command or Law proceeds from a major part there those individual Persons that concurred in the Vote are the Governours because the Law is only their Will in particular the Power of a major Part being a contingent or casual thing expires in the very Act it self of Voting which Power of a major Part is grounded upon a Supposition that they are the stronger Part when the Vote is past these Votes which are the major Part return again and are incorporated into the whole Assembly and are buried as it were in that Lump and no otherwise considered the Act or Law ordained by such a Vote loseth the Makers of it before it comes to be obeyed for when it comes to be put in Execution it becomes the Will of those who enjoyn it and force Obedience to it not by Virtue of any Power derived from the Makers of the Law No man can say that during the Reign of the late Queen Elizabeth that King Henry the Eighth or Edward the Sixth did govern although that many of the Laws that were made in those two former Princes times were observed and executed under her Government but those Laws though made by her Predecessours yet became the Laws of her present Government who willed and commanded the Execution of them and had the same Power to correct interpret or mitigate them which the first Makers of them had every Law must always have some present known Person in Being whose Will it must be to make it a Law for the Present this cannot be said of the major Part of any Assembly because that major part instantly ceaseth as soon as ever it hath voted an infallible Argument whereof is this that the same major part after the Vote given hath no Power to correct alter or mitigate it or to Cause it to be put in Execution so that he that shall act or cause that Law to be executed makes himself the Commander or willer of it which was originally the Will of others It is said by Mr. Hobs in his Leviathan page 141. Nothing is Law where the Legislator cannot be known for there must be manifest Signs that it proceedeth from the Will of the Sovereign there is requisite not only a Declaration of the Law but also sufficient Signs of the Author and the Authority That Senate or great Council wherein it is conceived the Supreme or Legislative Power doth rest consists of those Persons who are actually Subjects at the very same time wherein they exercise their Legislative Power and at the same instant may be guilty of breaking one Law whilst they are making another Law for it is not the whole and entire Will of every particular Person in the Assembly but that part only of his Will which accidentally falls out to concur with the Will of the greater part So that the Sharers of the Legislative Power have each of them perhaps not a hundredth part of the Legislative Power which in it self is indivisible and that not in Act but in Possibility only in one particular Point for that Moment whilst they give their Vote To close this Point which may seem strange and new to some I will produce the Judgment of Bodin in his sixth Book of a Commonweal and the fourth Chapter his words are The chief Point of a Commonweal which is the Right of Sovereignty cannot be nor insist to speak properly but in Monarchy for none can be Sovereign in a Commonweal but one alone if they be two or three or more no one is Sovereign for that no one of them can give or take a Law from his Companion and although we imagine a Body of many Lords or of a whole People to hold the Sovereignty yet hath it no true Ground nor Support if there be not a Head with absolute Power to unite them together which a simple Magistrate without Sovereign Authority cannot do And if it chance that the Lords or Tribes of the People be divided as it often falls out then must they fall to Arms one against another and although the greatest part be of one Opinion yet may it so happen as the lesser part having many Legions and making a Head may oppose it self against the greater Number and get the Victory We see the Difficulties which are and always have been in popular Estates whereas they hold contrary Parts and for divers Magistrates some demand Peace others War some will have this Law others that some will have one Commander others another some will treat a League with the King of France others with the King of Spain corrupted or drawn some one Way some another making open War as hath been
a primity of share in the supreme Power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us The Houses of Parliament sure have two parts of the greatest legislative Authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The Soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty Title Therefore in the third place he resolves us That to salve all a power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First A Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supreme Power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law only thus he is brought from the legislative to the gubernative or executive Power only nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supreme power into Legislative and Gubernative doth now divide it into Legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of Power but are we sure he may enjoy this It seems our Author is not confident in this neither and some others do deny it him our Author speaking of the Government of this Kingdom saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty Title certain of no Power at all The power of chusing Officers only is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take Accompts and indeed in all popular Governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the only Subject in a Kingdom or the only man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may some time or other perhaps govern according to the Laws only the King can be no Officer but to chuse Officers his Subjects may all govern but he may not Next I cannot see how in true sense our Author can say his Monarch is the head and fountain of Power since his Doctrine is That in a limited Monarchy the publick Society by original Constitution confer on one man power is not then the publick Society the head and fountain of Power and not the King Again when he tells us of his Monarch That both the other States as well conjunctim as divisim be his sworn Subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons He without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his Judges in Courts of Justice only that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the supreme Power And 3. As to this third particular The power of Convocating such persons they are both so far from making a Monarch that they are the only way to make him none by chusing and calling others to share in the supreme Power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the supreme Power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truly a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing only a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person make the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Judge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applied It is a case beyond the possible provision of such a Government of this question there is no legal Judge The accusing side must make it evident to every mans Conscience The Appeal must be to the Community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry than Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to inquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because
will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not only among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the People there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wenceslaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Council of Nobles nor to choose any Wife without their leaves then it must be said to be a Commonweal not a Royalty and the King but only the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Counselling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot find in any Kingdom but only where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmark I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmark withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of Life and Death over their Subjects without appeal and the King to give no Office without consent of the Council There is a Chancellour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Council and from this Council to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the People or community may assume its own Power if neither of these Kingdoms have most Countries have not nay none have The People or Community in these three Realms are as absolute Vassals as any in the World the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The Election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Council in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdom such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changeable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the People are so far from liberty that he saith Divers particular Lords exact not only Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Judgments THE END THE POWER OF KINGS And in Particular OF THE KING OF ENGLAND THE POWER OF KINGS And in Particular Of the KING of ENGLAND TO Majestie or Soveraignty belongeth an Absolute Power not subject to any Law It behoveth him that is a Soveraign not to be in any sort Subject to the Command of Another whose Office is to give Laws unto his Subjects to Abrogate Laws unprofitable and in their stead to Establish other which he cannot do that is himself Subject to Laws or to Others which have Command over him And this is that which the Law saith that The Prince is acquitted from the Power of the Laws The Laws Ordinances Letters-Patents Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by Sufferance of the Prince following who had knowledge thereof If the Soveraign Prince be exempted from the Laws of his Predecessors much less shall he be bound unto the Laws he maketh Himself for a man may well receive a Law from Another man but impossible it is in Nature for to give a Law unto Himself no more than it is to Command a man's self in a matter depending of his Own Will There can be no Obligation which taketh State from the meer Will of him that promiseth the same which is a necessary Reason to prove evidently that a King cannot bind his Own Hands albeit that he would We see also in the end of all Laws these words Because it hath so Pleased us to give us to understand that the Laws of a Sovereign Prince although they be grounded upon Reason yet depend upon nothing but his meer and frank good Will But as for the Laws of God all Princes and People are unto them subject neither is it in their power to impugne them if they will not be guilty of High Treason against God under the greatness of whom all Monarchs of the world ought to bow their Heads in all fear and reverence A Question may be Whether a Prince be subject to the Laws of his Countrey that he hath
or Free-hold of their Liberties Thirdly I must not detract from the Worth of all those Learned Men who are of a contrary Opinion in the Point of Natural Liberty The profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable neither Aristotle in Philosophy nor Hooker in Divinity They are but men yet I reverence their Judgments in most Points and confess my self beholding to their Errors too in this something that I found amiss in their Opinions guided me in the discovery of that Truth which I perswade my self they missed A Dwarf sometimes may see that which a Giant looks over for whilest one Truth is curiously searched after another must necessarily be neglected Late Writers have taken up too much upon Trust from the subtile School-Men who to be sure to thrust down the King below the Pope thought it the safest course to advance the People above the King that so the Papal Power might take place of the Regal Thus many an Ignorant Subject hath been fooled into this Faith that a man may become a Martyr for his Countrey by being a Traytor to his Prince whereas the New-coyned distinction of Subjects into Royallists and Patriots is most unnatural since the relation between King and People is so great that their well-being is so Reciprocal 2 To make evident the Grounds of this Question about the Natural Liberty of Mankind I will lay down some passages of Cardinal Bellarmine that may best unfold the State of this Controversie Secular or Civil Power saith he is instituted by Men It is in the People unless they bestow it on a Prince This Power is immediately in the whole Multitude as in the Subject of it for this Power is in the Divine Law but the Divine Law hath given this Power to no particular Man If the Positive Law be taken away there is left no Reason why amongst a Multitude who are Equal one rather than another should bear Rule over the rest Power is given by the Multitude to one man or to more by the same Law of Nature for the Commonwealth cannot exercise this Power therefore it is bound to bestow it upon some One Man or some Few It depends upon the Consent of the Multitude to ordain over themselves a King or Consul or other Magistrates and if there be a lawful Cause the Multitude may change the Kingdom into an Aristocracy or Democracy Thus far Bellarmine in which passages are comprised the strength of all that ever I have read or heard produced for the Natural Liberty of the Subject Before I examine or refute these Doctrines I must a little make some Observations upon his Words First He saith that by the law of God Power is immediately in the People hereby he makes God to be the immediate Author of a Democratical Estate for a Democrasy is nothing else but the Power of the Multitude If this be true not only Aristocracies but all Monarchies are altogether unlawful as being ordained as he thinks by Men whenas God himself hath chosen a Democracy Secondly He holds that although a Democracy be the Ordinance of God yet the people have no power to use the Power which God hath given them but only power to give away their Power whereby it followeth that there can be no Democratical Government because he saith the people must give their Power to One Man or to some Few which maketh either a Regal or Aristocratical Estate which the Multitude is tyed to do even by the same Law of Nature which Originally gave them the Power And why then doth he say the Multitude may change the Kingdom into a Democracy Thirdly He concludes that if there be a lawful Cause the Multitude may change the Kingdom Here I would fain know who shall judg of this lawful Cause If the Multitude for I see no Body else can then this is a pestilent and dangerous Conclusion 3 I come now to examine that Argument which is used by Bellarmine and is the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People It is thus framed That God hath given or ordained Power is evident by Scripture But God hath given it to no particular Person because by nature all Men are Equal therefore he hath given Power to the People or Multitude To Answer this Reason drawn from the Equality of Mankind by Nature I will first use the help of Bellarmine himself whose very words are these If many men had been together created out of the Earth they all ought to have been Princes over their Posterity In these words we have an Evident Confession that Creation made man Prince of his Posterity And indeed not only Adam but the succeding Patriarchs had by Right of Father-hood Royal Authority over their Children Nor dares Bellarmine deny this also That the Patriarchs saith he were endowed with Kingly Power their Deeds do testify for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with subordination to the First Parent who is Lord-Paramout over his Childrens Children to all Generations as being the Grand-Father of his People 4 I see not then how the Children of Adam or of any man else can be free from subjection to their Parents And this subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself It follows that Civil Power not only in general is by Divine Institution but even the Assignment of it Specifically to the eldest Parents which quite takes away that New and Common distinction which refers only Power Universal and Absolute to God but Power Respective in regard of the Special Form of Government to the Choice of the people This Lordship which Adam by Command had over the whole World and by Right descending from him the Patriarchs did enjoy was as large and ample as the Absolutest Dominion of any Monarch which hath been since the Creation For Dominion of Life and Death we find that Judah the Father pronounced Sentence of Death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abraham commanded an Army of 318 Souldiers of his own Family And Esau met his Brother Jacob with 400 Men at Arms. For matter of Peace Abraham made a League with Abimilech and ratify'd the Articles with an Oath These Acts of Judging in Capital Crimes of making War and concluding Peace are the chiefest Marks of Sovereignty that are found in any Monarch 5 Not only until the Flood but after it this Patriarchal Power did continue as the very Name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World over-spread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the Earth
the Crown does escheat for want of an Heir Whether doth it not then Divolve to the People The Answer is It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to die it is certain that there is One Man and but One in the World who is next Heir although the Knowledge who should be that One Man be quite lost 2. This Ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supreme Power is devolved to the Multitude and that they have Power to Rule and Chose what Rulers they please No the Kingly Power escheats in such cases to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the Uniting of great Families or petty Kingdoms we find the greater Monarchies were at the first erected and into such again as into their first Matter many times they return again And because the dependencie of ancient Families is oft obscure or worn out of Knowledge therefore the wisdom of All or Most Princes have thought fit to adopt many times those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enobled them or made them fit and capable of such Regal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please And he that is so Elected claims not his Power as a Donative from the People but as being substituted properly by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People If it please God for the Correction of the Prince or punishment of the People to suffer Princes to be removed and others to be placed in their rooms either by the Factions of the Nobility or Rebellion of the People in all such cases the Judgment of God who hath Power to give and to take away Kingdoms is most just Yet the Ministry of Men who Execute Gods Judgments without Commission is sinful and damnable God doth but use and turn mens Vnrighteous Acts to the performance of his Righteous Decrees 10 In all Kingdoms or Common-wealths in the World whether the Prince be the Supream Father of the People or but the true Heir of such a Father or whether he come to the Crown by Usurpation or by Election of the Nobles or of the People or by any other way whatsoever or whether some Few or a Multitude Govern the Commonwealth Yet still the Authority that is in any one or in many or in all these is the only Right and natural Authority of a Supream Father There is and always shall be continued to the end of the World a Natural Right of a Supreme Father over every Multitude although by the secret Will of God many at first do most unjustly obtain the Exercise of it To confirm this Natural Right of Regal Power we find in the Decalogue That the Law which enjoyns Obedience to Kings is delivered in the terms of Honour thy Father as if all power were originally in the Father If Obedience to Parents be immediately due by a Natural Law and Subjection to Princes but by the Mediation of an Humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate If we compare the Natural Rights of a Father with those of a King we find them all one without any difference at all but only in the Latitude or Extent of them as the Father over one Family so the King as Father over many Families extends his care to preserve feed cloth instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Privileges so that all the Duties of a King are summed up in an Universal Fatherly Care of his People CHAP. II. It is unnatural for the People to Govern or Chose Governours 1. ARistotle examined about the Freedom of the People and justified 2. Suarez disputing against the Regality of Adam 3. Families diversly defined by Aristotle Bodin and others 4. Suarez contradicting Bellarmine 5. Of Election of Kings 6. By the Major part of the People 7. By Proxy and by silent Acceptation 8. No Example in Scripture of the Peoples chosing their King Mr. Hooker's Judgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Judgment of Monarchy 11. Imperfections of the Roman Democratie 12. Rome began her Empire under Kings and perfected under Emperours In danger the People of Rome always fled to Monarchy 13. Whether Democraties were invented to bridle Tyrants or rather that they came in by Stealth 14. Democraties vilified by their own Historians 15. Popular Government more bloody than Tyranny 16. Of a mixed Government of the King and People 17. The People may not judge or correct their King 18. No Tyrants in England since the Conquest 1. BY conferring these Proofs and Reasons drawn from the Authority of the Scripture it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude to chose what Rulers they please Had the Patriarchs their Power given them by their own Children Bellarmine does not say it but the Contrary If then the Fatherhood enjoyed this Authority for so many Ages by the Law of Nature when was it lost or when forfeited or how is it devolved to the Liberty of the Multitude Because the Scripture is not favourable to the Liberty of the People therefore many fly to Natural Reason and to the Authority of Aristotle I must crave Liberty to examine or explain the Opinion of this great Philosopher but briefly I find this Sentence in the Third of his Politiques Cap. 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It seems to some not to be natural for one man to be Lord of all the Citizens since a City consists of Equals D. Lambine in his Latine Interpretation of this Text hath omitted the Translation of this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this means he maketh that to be the Opinion of Aristotle which Aristotle alleadgeth to be the Opinion but of some This Negligence or Wilful Escape of Lambine in not translating a word so Material hath been an occasion to deceive many who looking no farther than this Latine Translation have concluded and made the World now of late believe that Aristotle here maintains a Natural Equality of Men and not only our English Translator of Aristotle's Politiques is in this place misled by following Lambine but even the Learned Monsieur Duvall in