beyond the Law and the Subject is not bound Legally to subjection in such cases and if the utmost extent of the Law of the land be the measure of the limited Monarch's Power and Subjects duty where shall we find the Supreme that Culmen or apex potestatis that prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Author saies must be in every Monarch the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies Principality and Power doth also signifie beginning which doth teach us that by the word Prince or Principality or Principium or beginning of Government is meant this if it be given to the law it robs the Monarch and makes the law the Primum Mobile and so that which is but the instrument or servant to the Monarch becomes the Master In vindication therefore of Mr. Hunton on whom he makes these remarks I shall in the first place grant that he hath perhaps spoke not so properly in saying that the supreme Power must be restrained by some law whereas indeed he should rather have sayd limited by some law since the word restrained is of a harsh signification and denotes something of a certain force the exercise of which this Author is altogether against in his whole treatise of Monarchy so that putting it thus that the supreme Power in a limited Monarchy must be limited by some Law does not therefore place any coercive power above his who can call him to an account for his actions But a Power that may remonstrate to him where he hath acted contrary to that Law and may by that law punish not the Monarch but his Ministers that have dared to transgress those such known laws For as for the Monarch himself it is still supposed that he in his own person can do no injury So that he may still be Supreme and yet be limited not by any power Superior to his own but by his laws or declared Will which he himself hath made in the Assembly of his Estates and which he can not alter but by the same form by which they were constituted and this sort of limitation may very well consist with a perfect Monarchy Thus the King of the Medapersians was an absolute Monarch and alone made laws and yet we find in Dan. XII that Darius was forced against his will to cast Daniel into the Lyons Den for transgressing his own Decree because the Laws of the Medo-Persians did not alter that it could not be dispensed with by the King when they were once made Thus it is no derogation to God himself to be bound by his own Oath which from the immutability and perfection of his nature he cannot afterwards alter See Heb. VI. from v. 16. to 17 18. That by two immutable things in which it was impossible for God to lie c. the two immutable things are first his own nature and then the Oath he sware by himself so that we see this restriction of Gods power by his Oath which is a law to him is no derogation from his absolute Monarchy or Omnipotency but is consistent with it therefore it does not follow that in all laws where the law governs the Monarch he hath therefore but a Gubernative power Or that if the Soveraign Authority is limited by Law it ceases to be Supreme as I shall by and by shew more at large in the mean time I shall not defend Mr. H.'s opinion when he saith that in a mixed Monarchy the Soveraign Power must be originally in all the three Estates or that the three Estates are all sharers of the Supream Power only the primity of share in the Supream power is in one For the Observator observes very well that this contradicts what he before confessed That the Power of Magistracy cannot well be divided for it is one simple thing or indivisible beam of Divine perfection yet he will for all this allow his mixed Monarch but one share of the Supream power and gives other shares to the Estates and so destroys the very being of Monarchy by puting the Supream power or a part of it in the whole body or a part thereof Therefore I am so far of their opinion that held the Supream Power cannot well be divided into several shares since there is so great a conjunction between all the parts of Soveraign power that one part cannot be separated from the other but it will spoil the regular form of the Government and set up an irregular Commonwealth which will scarce be able to hold well together And that this will be so in all Governments see what Mr. Pufendorf hath said in that excellent work de Jure nature et Gentium discoursed upon this Subject Lib. IV. Cap. 7. §. 9. 10. 11. 12. 13. neither am I not here of Grotiu's mind Lib. 1. Cap. 3. § 9. 17. Who supposes the Supream power to be divided if a People yet free should command its future King per modum manentis praecepti after the manner of a lasting or standing Precept or Command where it does not appear how there can be a lasting Command at that time when no Person hath any longer a power of Commanding For every Command supposes a coactive force to be exercised when ever that Precept is violated therefore the People constituting a King must either retain this power against the King or may not retain it if the former there will remain only the empty name of a King but the real Soveraignty will still remain in the People but if the latter be true and they do not retain it this Precept or Command signifies nothing So likewise in that same place If in the conferring of the royal power any thing be added by which it may be understood that the King may be compelled or punished For here it is true the Soveraignty is not divided but the people hath it indeed altogether For if the People have a right of punishing the King upon any pretence whatever there is nothing conferred upon him but the office of the first Magistrate in the Commonwealth under the name of King but the Royal Power will still remain in the People because as I have already laid down all punishment quatenus as such must proceed from a Superior But all compulsion is performed two ways either morally or Physically that is by way of Soveraign Authority or by force of Arms or War for there is no Authority can be morally supposed against an Equal considered as such therefore when Grotius inferrs that the People may be at least equal to the King because in some cases it may compel him he is likewise necessitated to grant that neither of them hath any Authority over the other because it contradicts the nature of a Commonwealth Though compulsion by force of Armes as between Equals or those who have no Authority over each other must be granted in the state of nature in which we will make use of Grotius's own Example that a Creditor hath naturally a right of compelling the Debtor
onely was named in the Grant P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis That it may seem absurd that Kings now are Fathers of their People since Experience shews the contrary It is true says he all Kings are not the natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People and so in their right succeed to the exercise of Supream Jurisdiction and such Heirs are not onely Lords of their own Children but of their Brethren and all others that were Subjects to their Fathers And therefore we finde that God told Cain of his brother Abel His desires shall be toward thee and thou shalt rule over him Accordingly when Jacob bought his brothers Birthright Isaac blessed him thus Be Lord over thy brethren and let the sons of thy mother bow before thee P. 20. As long as the first Fathers of Families lived the name of Patriarch did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and onely the right of the Father descended upon the true Heir then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy By this means it comes to pass that many a Child by succeeding a King hath a right of a Father over many a gray-headed Multitude and hath the Title of Pater Patriae It may be demanded What becomes of the Right of Fatherhood in case the Crown does escheat for want of an Heir whether doth it not then devolve 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 is always 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 P. 21. This ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supream Power is devolved to the Multitude or that they have power to rule and chuse what Rulers they please No the Kingly power in such cases escheats 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 finde the greater Monarchies were at first erected and into such again as into their first matter many times they return again And because the dependancy of ancient Families is oft an obsure and worn-out knowledge there the wisdom of many Princes have thought fit to adopt those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enabled them or made them fit and capable of such Royal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign 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 by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People P. 22. In all Kingdoms or Commonwealths in the world whether the Prince be the Supreame Father of the People or but the true Heir of such a Father p. 23. or whether he come to the Crown by usurpation 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 onely 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 Supream Father over a multitude although by the secret Will of God many do at first most unjustly obtain the Exercise of it To confirm this natural Right of Regal Power we finde in the Decalogue that the Law which enjoyns Obedience to Kings is delivered in the Terms of Honour thy Father and thy Mother as if all Power were originally in the Father If Obedience to Parents be due immediately 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 P. 24. If we compare Rights of a Father with those of a King we finde them all one without any difference at all but onely 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 clothe instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Soveraignty tend onely to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Priviledges so that all the Duties of a King are summed up in an Vniversal Fatherly Care of his People I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words and so be the better able to judge whether I understand and answer him or not as because it contains the substance and strength of all that the Author had to say in defence of it So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it His first Argument against the natural Freedom of Mankinde is drawn from Scripture and from Bellarmine's own Concession That Adam was and consequently every other Father ought to be a Prince over his Posterity And as Adam was Lord over his Children so his Children under him had a power over their own Children suberdinately to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People So that neither the Children of Adam or any else can be free from subjection to their Parents and this subjection to Parents being the foundation of all Legal Authority by the Ordination of God himself therefore no man can be born in a state of Freedom or Equality In answer to which I shall not concern my self what Bellarmine or any other have granted but would be glad to know where and how God hath given this Absolute power to Fathers over their Children and by what Law Children are tyed to an Absolute Subjection or Servitude to
or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
Nature and constitute one Politick Body all the Members of it are obliged in Conscience to maintain this Government according to its first Institution But if it be to be constituted anew as upon his Escheat of the Crown among the Fathers of Families Who are to chuse one who must take upon him this Fatherly Power over them The inconvenience will be the same upon his own Principles For all Cities Towns and Families consting of so many independant Heads of Families if the major part of an Assembly cannot conclude the minor as this Author supposes then though all the Fathers of Families in a Nation should agree in the choice of a King and but those of one Town or Family dissent these Dissenters if they do not like the Prince the rest have elected may certainly if they are able divide from them and set up a distinct Government of their own since all these Fathers of Families being alike free and independant can in the state of Nature claim no Superiority over each other So that the Author from his own Principles falls into the same inconveniencies which he finds fault with in those of others whereas indeed there is no absurdity in this Supposition I shall now consider in the last place that part of his Hypothesis Patriarch p. 21. where he supposes That all such prime Heads and Fathers of Families have power to consent in the uniting or conferring their Fatherly Right of Soveraign 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 universal Father though testified by the ministry of the Heads of the People I have already pull'd up the foundations of this Notion in the beginning of these Observations by shewing that God hath not ordain'd or conferred any such Power on any particular Father or other Relation and therefore neither on all the Fathers of Nations or Countries taken together they not having any Ownership or Property in their Childrens persons but a Right to govern and direct them for their benefit and preservation which Fatherly Right cannot be transferred to another much less survive his person as I have already proved Yet to render this as clear as may be granting him what he contends for that this Fatherly Power may be transferred to another I should be glad to know though the Monarch so nominated by them may have a supreme Power over all their Children and Servants yet whence does he derive this Right of commanding absolutely over the Persons and Estates of these Fathers of Families themselves Not from succession from Adam for his right Heir cannot now be known nor from their transferring the power of governing their own persons upon him for then this Right commences from their own Act or Election and not from the Fatherly power supposed to be at first conferred on Adam And if they transfer onely their Fatherly or Masterly Authority upon this new Monarch then he hath onely a Right to govern their Children and Servants the Persons and Estates of these Father 's not being included in this Grant And again if this Election in the state of Nature could confer a Right then this Monarch must owe his Power to these Fathers of Families and so these being as I have already proved the representative Body of the People he must receive his Authority as a Donative from them which he will by no means admit of But since he will have him properly and immediately substituted by God from whom he receives his Power of an universal Father then these Fathers of Families do not create or constitute the Monarch but onely are Instruments or Ministers to put him in possession and if so it is the possession of the Crown and not their Election that gives him this Right But as the Author words it He receives from God this Charter of an universal Father Upon which Principle see not to what purpose this Nomination or Election â—rves for if any body during this interregnum can by â—rce or fraud slip into the Throne he is more proâ—rly Gods Substitute and to be obeyed accordingly â—an if he had come in by their Nomination or Eleâ—ion since he is in possession by the immediate Will 〈◊〉 God and declared by the success So that these â—athers are in a fine case after all their Priviledge to â—ect since whoever can usurp this Authority over â—…em must immediately be their Father and Master â—hether they ever give their consents or not For â—is Author says Obedience to Government p. 66 67. Paternal Power cannot 〈◊〉 lost it may be either transferred or uâ—rped but never lost But I have sufâ—…ciently exposed the absurdity of this â—otion before in what I have said about Obedience 〈◊〉 Usurpers and shall lay it more open when I come 〈◊〉 shew in what sence Princes owe their Authority to God Therefore since these Fathers of Families had in the â—ate of Nature an absolute Power of governing themselves I shall now enquire in the next place Whether â—…ey may not pass over this Power upon some certain Conditions and reserving some Rights and Priviledges 〈◊〉 themselves and Children upon the making of the Compact with their new Prince Secondly How the perâ—n so elected owes his Authority to them and in what â—ense to God As to the first I see no reason but that â—hese Fathers of Families may if their number be not â—oo great agree to govern all alike together and that whoever is a Master of a distinct Family or a single â—…an at his own dispose and not a Servant shall have 〈◊〉 Vote in the Government and that the major part of â—he Votes shall conclude all the rest and then it will be â—s perfect a Democracy as ever was since as I have granted already there was never such a Governmenâ— where all Women and Children promiscuously haâ— Votes with their Husbands Fathers or Brothers Sâ— that if ever there was any such thing as a Democracâ— in the world this would be one Or lastly if they maâ— all govern themselves they may as well agree to chusâ— a certain number of their own Body to represent them and to meet in a common Council or Assembly anâ— to govern them either for life or yearly as they shaâ—… make the Conditions with them and then this Government will become an Aristocracy where a few oâ— those that are reputed the best do govern though by aâ— Power derived from these Fathers of Families Anâ— if they may bestow this Power upon more than one under certain Conditions I see no reason why they may not do the same if they confer it upon one man after the same manner either by making a Compact with him upon his accepting the Government how much 〈◊〉 this Power he shall exercise and how much they wilâ— reserve to themselves If they agree that he shall have no more but a Presidency
whilst they are well used which if they come to be depraved by those that are in power the same things are counted wicked and unprofitable So likewise p. 73. he makes the Multitude or People of Rome to have elected Nero Heliogabalus Otho and Vitellius for Emperours and to have murdered Pertinax Alexander Severus Gordiun and the rest there named whereas whoever reads the Historians of those times will find it was not the People or Senate but the Army that either elected or murdered Emperours And as for Nero the Senate had never dared to have declared him a publick Enemy had he not become so odious and intolerable that nobody would take Arms for him and that the Army under Galba which had revolted and chosen him Emperour was then marching to Rome So that indeed these Emperours were torn in pieces by the Dogs they themselves fed and kept constantly in pay to prevent the People who had not yet quite forgot their former Liberty from recovering it again And the People of Rome had just as great a hand in the setting up and putting down Emperours as those of Stambola have had in the deposing or setting up those Grand Seigniors which the Janizaries their Guards have strangled of late years setting up their Uncles or Brothers in their rooms or as the People of England had in setting up either Oliver or his Son Richard for Protectors But leaving these lesser Mistakes which I look upon onely as the Transports of the Author's Resentments against Popular Government in which I shall not contradict him in the main onely I would fain lay the Saddle upon the right Horse and not blame them for the faults committed by a standing Army which in those times domineer'd over both Emperour and the People of Rome and imposed upon them what Emperour they pleas'd though never so base and unworthy I shall therefore in the last place come to the second point I before proposed whether the person on whom the Fathers of Families upon this Escheat of the Crown confers their Authority owe the same to them or else immediately to God The Author in the passage before cited will by no means grant That the person so elected claims his Power from the People but as being substituted properly by God from whom he receives his Royal Charter of an universal Father though testified by the Ministry of the Heads of the People Which Assertion is built upon grounds altogether false and precarious as I have already proved For first he here supposes That God hath given by divine grant all Fathers in the state of Nature an absolute despotick power over the persons of their Sons so that they may sell or otherwise transfer this Fatherly power to whom they please And secondly That the Children are as much obliged to obey those to whom the Fathers transfer this Right as they were their Fathers themselves Thirdly That this Power so transferred does not properly derive it self from the Fathers who so pass over their Fatherly power but to God who conferred it on them at first In which Hypothesis every one of the Propositions are false For first I have proved that no Father hath by any divine Grant or Charter an absolute despotick power over the person of his Son Or secondly that God hath given Fathers a power to bequeath or transfer their Authority to another so that the Grantee should by this Assignement succeed to all the Rights of a Father and therefore the two former being false the last of Princes receiving their power immediately from God which is built upon them must be so too And besides it is evident that these Fathers do not onely here pass over a Fatherly power of governing of their Wives and Children but likewise that of governing themselves not as Fathers but as men since they must transfer this power whether they had Wives or Children or not else they might onely pass over to this new Monarch their power over their Wives and Children and reserve the power of governing themselves still So that it is plain there is a power different from that of a Father to be transferred But if it may be replyed They may chuse themselves a Father if they please indeed I have heard of a mans adopting of a Son which still must be by this Son 's own consent yet I never heard of a Son 's adopting himself a Father or that a Father which is a natural Relation can be created at mans pleasure it is true a Lord or Master may but he cannot thereby challenge that natural Reverence and Gratitude due onely to a Father So that if Fathers have a power of governing themselves and their actions in the state of Nature and that they can confer this Right on any other it is evident they do not confer this as a Paternal power on their Monarch which the Author supposes to be granted by God to all Fathers We shall now come to the second Head at first proposed and examine what power a Master of a separate Family hath over his Slaves or Servants in the state of Nature First As for hired Servants though it is true they may submit themselves to the will and disposal of another what Diet they shall eat and what Clothes they shall wear what work they shall do and what hours of rest or sleep they shall have to themselves and that the Master may beat or correct him if he do amiss and through wilfulness or negligence disobey his Masters commands and that these are the Conditions that most hired Servants being part of their Masters Family do serve upon yet is this not so properly an absolute Obedience as a duty of Truth and Honesty in the Servant since as he is bound to perform his part of the Contract so likewise is the Master to perform what he hath promised them since this service is neither absolute nor perpetual so that when his time is out he is free of course And if in the mean time the Master does not allow him sufficient Food Clothes or hours of rest so that he may be able to perform his work this Servant in the state of Nature if he cannot perswade his Master to use him better may without doubt quit his service as soon as he can since he was to yield his Master his Labour upon certain Conditions which not performed on the Masters part the Servant is not obliged any longer to perform his part of the Bargain in living with him or serving him And as for those that have sold or yielded themselves up as absolute perpetual Servants or Slaves to the government of another I see no reason why they may not in this state of Nature make certain Conditions with their Master before they will give themselves up to him since if a man may covenant with another upon what condition he will serve him for seven years why may he not do the same for his whole life So that upon the non-performance of these
Right of governing them is said to be transferred as far as it is accompanied with the Honours and Profits annexed to it For although a Prince may say of his Subject He is my Man yet this Property in him is much different from that whereby a Prince calls his Horse his own for in the first sence he means no more than that the Right of governing this man belongs to me and not to another yet cannot be extended as far as he pleases but that Property which is attributed to a Beast or other Goods includes a Right of using or consuming that thing as he will himself without any other reason than that it is his own But although the Laws of Humanity do not permit that however a man hath carried himself towards us all Remains of that Primitive Equality between men should be quite extinguished towards him and after a man hath entered into a state of Peace with us that he should be dealt with as a Brute or inanimate thing though it is true that the Cruelty and Avarice of divers Nations hath proceeded so far that Slaves are reckoned amongst Houshold-goods and are ordered not so much by Command as by the force of an absolute Dominion and Property yet this is not from the Law of Nature but the Civil Law of that particular Common-wealth So that though I grant by the Roman Civil Law a man might have said of a Slave in the same sence as of a Beast This is mine yet this was not from the Laws of Nature but Custom of that Empire who taking many Captives in the Wars almost all their Servants consisted at first of such Yet this is not allowed of in our Law nor yet in France and other Countries And this will serve to demonstrate what this Author lays down in his Preface to his Observations on Aristotle's Politicks to be false That Adam was a Father King and Lord over his Family and that a Son Subject and Slave or Servant were all one at first since it may hereby appear that there is a real difference in Nature between every one of them And though the express names of Subject Tyrant and Slave be not found in Scripture yet the things are and that as plainly described as if they had been called so though the Hebrew being a barren Language hath not distinct words for them without Epithites or Circumlocutions For 1. As to Servants it is apparent out of the Law of Moses Exod. 21. v. 2. Levit. 25.39.44 Deut. 15.12 there is a vast difference between Hebrew Servants and those that were of other Nations these latter onely being called Bondservants whose service was perpetual and who were as a Possession and Inheritance to their Lords whereas the former were not to be made to serve with that Rigour but onely as hired Servants to be set free in the seventh or Sabbatical year And it is frequent in the Law as well as Prophets to make mention of the Wages of an Hireling So that nothing is plainer than that even among the Jews there was a difference between hired Servants Hebrew Servants for years and forreign Slaves for ever And before that when Jacob served Laban for his two Daughters it is evident that there was then a distinction between an hired Servant and a Slave since there was a Contract for what Wages Jacob should serve him And though Laban for ought appears according to the custom of those times was an Independant Father of a Family as well as Jacob was afterwards and consequently a Prince as this Author needs will have it yet we do not finde it charged upon Jacob as a Crime no not by Laban himself but onely as a matter of unkindness that he had stolen away from him with his Daughters and the Goods he had yearned in his service So likewise though the word Tyrant is not found expresly in Scripture yet the thing it self is if a Tyrant be one who abusus his Kingly Power to the Oppression of his Subjects or else Pharaoh in Egypt and those Kings who after the Israelites coming out of Egypt so cruelly oppressed them were all good and lawful Monarchs and had as much Authority as their own Princes which God set over them and it had been a wicked thing in them to have resisted them and driven them out as they did whenever they were able since they were in possession according to this Author by the permissive Will of God Having now shewn the difference of the Power of a Master of a Family from that of a Father and that the Right which a Father hath in his Children is divers from that which he hath in his Servants or Slaves I will now consider in the last place the Power which Adam had or any other Husband now hath over his Wife in the state of Nature I have already proved that the Authority of the Husband over the Wife commences from that Contract we call Marriage and though by the Word of God the Woman is made subject to the Man yet the reason of that subjection naturally depends upon the Mans being commonly stronger both in body and mind than the Woman and where that ceases the subjection will likewise of course cease even amongst us For we see that if a Husband be a foolish or a careless man and either cannot or will not govern his Family and Estate the Wife may and does and oftentimes him into the Bargain Nor does any one finde fault with her for so doing since somebody must govern the Concerns of the Family and if the man either cannot or will not who hath more Right or Interest to do it than her who hath an equal share in the happiness and well-being of her Family and Children Neither can there be at once two absolute Heads in the same house commanding contradictory things without confusion since the Children and Servants could never tell whom to obey So that even this subjection of the womans will to the mans commanded by Scripture is still with a supposition that the man is capable or willing to govern for if he be not he loses this Prerogative of course But suppose he is able to govern her and the Family the Question is What kind of Power he hath over her as a Husband in the state of Nature I grant that if she made it part of her Bargain to be so absolutely subject to him as that he might command her in all things as a Slave and make her do what work he pleased to appoint and that he may either turn her away or put her to death if he find her imbezilling his Goods or committing Adultery the woman in this case is bound by her Contract as another Servant who makes her self so by her own act or consent But this is not the Question but what power the man hath naturally over his Wife as a Husband supposing no such Conditions or Bargain were made at the Marriage It is true indeed that the Wife
place more which the Author does not quote fairly Anarchy of a limited Monarchy p. 294. where Aristotle reckoning up the several sorts of Monarchies The last says he is the Heroick which flourished in Heroical times to whom the People did * The Greek word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of their own accord willingly obey and they were paternal and †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which confutes the Author's fancy that a King according to Law makes no kind of Government legal And then reckoning up the occasions reasons of their Obedience he concludes thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And these were chosen Kings by the consent of those that were willing Lambinus renders it à voluntariis and left the Kingdom so obtained to their Children Which whole sentence is omitted by the Author because it makes against his Hypothesis and proves that the most ancient Kingdoms began by Election of the People So true is that excellent Simile of the elder Dr. Don's That Sentences of good Authors whilst they remain in their proper place like the hairs of an Horses tail concenter in one root of strength and ornament but pulled out one by one serve only to make Snares And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence where it makes for them they allow it and make use of it but where it is against them it is false or signifies nothing I shall now cursorily look over the rest of this Discourse where p. 23. though it be true what Aristotle says That the People must act as a Monarch and become as one Person before it can govern So after they are so united into one Senate or Council it is no good Argument to say That the whole Multitude does not govern where the major part onely rules because many of the Multitude that are so assembled are so far from having any part in the Government that they themselves are governed against and often contrary to their wills those people to contract it being the major part in one Vote that are perhaps of another opinion in another and so every change of business begets a new major part For though it is true every individual person does not actually agree to every Vote yet implicitly he does since at the first institution of the Government the first Compact was That the agreement of the major part should conclude the whole Assembly and whoever either then would not or now refuses to be so concluded is still in the state of Nature in respect of all the rest and is not to be lookt upon as a Member of that Commonwealth but as an Enemy and a Covenant-breaker I shall not quarrel with the Author if he hold that Monarchy does most conduce to the main ends of Government Religion towards God and Peace towards men since I agree with him that absolute Monarchy if a man could be sure the Monarch would still continue prudent and just were the best sort of Government for mankind Onely I cannot but smile to finde the Author p. 27. so much admire the high respect the great Turk pays the Mufti or chief Bishop as he calls him where by the by I never heard the Turkish Church-Government was Episcopal before yet every printed Relation can tell us that this wonderful Reverence is but a meer piece of Pageantry the Idol being of his own making and whom he again unmakes at his pleasure a sort of Ordination I suppose the Author would not allow to those of an indelible Character It is true indeed what the Author affirms p. 29. That Rome being in any desperate condition was still forced to flie to Monarchy chusing a Dictator with absolute Power Yet this was onely as a General in time of War or some great civil Commotion being very near it where it must be confest that the absolute power of one is best at such times which needed a speedy Remedy And argues no more the Romans good opinion of Monarchy than it does any mans approbation of Martial Law which though perhaps the best that can be used in War it will not therefore follow that it were to be chosen in times of Peace no more than because Brandy may do a man good when he is sick in his stomach therefore he ought to drink it constantly So that as one benefit of the Dictatorship was the help it gave them upon an Extremity so the next happiness they wisht for after that was over was that the Dictator would lay down his Office again And the People of Rome were never more tyrannized over and opprest than when these Dictators held their Power by force contrary to their Institution and longer than there was need of them as may be seen in the Examples of Sylla and Caesar But the Consuls though they had in many things especially in calling the Senate and in commanding the Army a Kingly power yet it was not absolute but was liable to be questioned by the Senate and People as any man that reads the Roman History may observe See the Oration of Valerius in Dionysius Halicarnassaeus lib. 7. upon the difference between the Senate and People I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin but besides his personal faults he was never their lawful King having ascended the Throne by the murder of his Father-in-Law Servius Tullius and kept it by the power of a standing Army without the due Election of the Senate and People which was contrary to the Institution of that Kingdom which was Elective The Author p. 32. makes a great difficulty to grant the Roman Commonwealth to be Popular It is true it was not so absolutely but was mixt with an Aristocracy in the Government of the Senate and with Regal power in the Authority of the Consuls yet it is plain the supreme Power remained in the Body of the People And though by the unequal division of the Centuries it is true the greater part of the common People were seldom admitted to vote being concluded by the major part of the first 97 Centuries who consisted of the better and richer men yet this inequality begot the Tributa Comitia which with the Author 's good leave was more absolute than the former Coâ—itia Centuriata For Dion Halicarnas lib. 9. relating â—he original of these Tributa Comitia and how they â—iffered from the other says That the latter were transâ—cted in one day without any Auspicia and could make 〈◊〉 Law at once without any precedent Senatus Consulâ—um which the Curiata Comitia could not And â—hough it is true that the power of making War and Peace and creating of Magistrates remained in the Comitia Curiata yet the judging of great and capital Crimes and of altering and making Laws remained â—n the Tributa Comitia as may be observed in the â—anishment of Coriolanus and other punishments by â—hem inflicted and all Appeals were to this Assembly Yet
to pay his debts although the Creditor hath no right to exact this of him by way of any authority thereby vested in himself otherways it were necessary that every one who owed another any thing must presently come under his power therefore the Debtor must be compelled by the Creditor to pay his debt either by the assistance of some Judge which cannot be supposed between the King and People or if they live in a natural liberty by force But if we should allow this way of compulsion to the People it will follow that both the King and the People do still live in a natural liberty or meer state of nature that is that the Commonwealth is dissolved Yet we will grant Grotius this that in all civil constitutions there is nothing absolutely free from some inconveniencies therefore because of the inconveniencies that arise from this divided Soveraignty it does not presently follow that there can be no such Government or that it must presently fall to an absolute Anarchy for right is not to be measured from what pleases either this or that Author but from his or their will from whom this right at first began So likewise on the other side it must be granted that if such division of the Supreme Authority hath been instituted by any People that people have not constituted a Regular government but a politick body subject to perpetual distempers Therefore supposing the most that can be required that the King in a limited Monarchy is he who alone gives the Essence and Authority to the Laws though he can make no other than what are offered him in the Assembly of his Estates yet if all Magistrates that put these Laws in execution are subordinate to him and depend upon him this takes away that inconvenience this Author objects against limited Monarchs For he is truely Supreme since he makes the laws and is the Fountain of all power in his Dominions neither does this derogate from the Supremacy of his Power that he is obliged either by original contract or by after promise or condescent not to make any laws or to levy any mony or taxes from his Subjects but what they shall offer him in the Assembly of his Estates For since all laws that are made in a Monarchy are but the declaration of the Monarchs will and that he being but one man cannot declare his will Physically to the sences of all his Subjects but requires some politick form or manner of signifying this will to all that are to obey it which is various according to the several Customs and constitutions of divers Kingdoms therefore as in Monarchies where there are no use of Letters Laws can be no otherwise made or promulgated but by signifying the Monarchs will to the subordinate Magistrates by word of mouth by such Officers as must be supposed to bring some sufficient token that they come immediately from them and are sufficiently instructed in the matter he will have observed as a law which form can depend upon nothing but Custom or the common consent of the People to admit that for Law which shall be so promulgated since they have no infallible certainty but that the Messenger may be sent by some body else that hath a mind to make alterations in the State without the Princes knowledge or else that the Messenger may mistake the Princes meaning and report the law wrong So likewise in Kingdoms where laws are put into writing there must be some form or rule agreed upon both of making and promulgating Laws So likewise in those we call limited Monarchies the Custom or form is not to admit any thing for a Law or the authentick will of the Prince but what his Subjects have offered to him drawn up into form and which he hath passed into a Law by some token of consent before instituted in the presence of the general Assembly of the Estates of his Kingdom which course is absolutely the best both for the Prince and People For since the end of all laws as of Government it self are the good of the people so it is not likely that the Subjects having the drawing up of the Laws will offer any to the Prince that they are not absolutely perswaded are for the benefit of the Commonwealth nor can that be any prejudice to the Prince's power since no law can be made unless he give it the stamp of his Royal Authority Therefore though Forms are not essential to the declareing of the will of a private man in the state of nature yet they must be in respect of that of such a Prince since the power of the former is natural and can influence only those that hear him but that of a Prince is artificial or political as proceeding from compact and is to command even those that never saw him or are like to come into his presence it is requisite that the ways of declaring his will be made so certain that the Subjects may have no reason to doubt of it therefore there can no way be found out which can more certainly assure all the Subjects both of the benefit and Authority of the Laws than when a Prince voluntarily in a general Assembly of all the Estates of his Kingdom either by pronouncing of words or by touching the Bills offered him with his royal Scepter or any such like Ceremony declares he will have those Bills or Writings promulgated and observed as his Laws or declared Will which being once done in such a solemn and publick manner takes away all suspition that the Prince was not well advised when he made them or wrought upon by the flateries or insinuations of Women or Favourites Circumstances which being wanting in absolute Monarchies where the Prince's Edicts are perhaps either given out in hast or at second hand to those who never see him by Eunuchs or Officers who taking the Monarch at some advantage and makes him pass Commands which perhaps he does not remember or repents of the next day whereas in such a limited Monarchy a Prince does not only appear with greater Splendor and Authority when in the face of his Subjects he exercises the highest Act of Soveraignty in making laws but likewise assures them that he acts with an absolute freedom when having a liberty to deny he yet grants the desires of his Subjects yet so establishes them for Laws that they cannot be altered without their consents and by the same means by which they were first made which being supposed may serve to answer an Objection that some may make that if this way of passing of Laws or the Princes declaring his will after this manner be but a matter of form or Circumstance why may not this Monarch alter it at his pleasure and declare for the future for example that all laws shall be by him passed in his privy Council and then being openly proclamed and Copies recorded in all Courts of Justice shall be of the same Authority as if they had been passed
and if that condescent be an act of Grace doth not this condesent to a limitation come from the free determination of the Monarchs will if he either formally or virtually as the Author supposeth desert his absolute or Arbitrary power which he hath by conquest or other right Which last words of Mr. H. though I confess they are ill exprest yet I see no down right contradiction in the sence Mr. H. meant them if any man please to consult him he there says That a Monarch may either be limited by original constitution or an after condescent therefore these words the sole means of Soveraignty is the consent and fundamental contract is not meant of a limited Monarchy any more than of another but of any Soveraignty whatever So likewife though these words a secundary original constitution may seem to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to destroy each other yet as the Author explains himself you will find they do not in sense for he only supposes that a Prince who hath an absolute Arbitrary power either by succession or election finding it not so safe and easie as he conceives it would be for him if he came to new terms with his people would desert some of that despotick power and govern by let rules or Laws which he obliges himself and his Successors by Oath or some other conditions never to make or alter without the consent of his Subjects I see not why this may not in one sense be called a second original constitution for he was at first an absolute King by which was the original constitution and his coming to new Terms with them may be termed in respect of this a secundary original constitution or agreement of the government though founded upon the former old right which the Monarch had to govern as for a King by Conquest it cannot indeed in respect of him be properly called a secundary constitution since the Conquerour had no right to clame an absolute subjection from the Subjects until they submitted to him so as that they might not drive him out again if they were able until he came to some Terms with them Thus I think no sober man but will maintain that the people of England might lawfully have driven out William I. called the Conquerour supposing he had claimed by no other title but Conquest alone which when he had sworn to observe and maintain all the Laws and liberties of the people of England and had been thereupon Crown'd and received as King and had quitted his pretensions by Conquest or force and had taken the Oaths and homage of the Clergy Nobility and People they could not then without Rebellion endeavour to do And certainly had he not thought his title by Conquest not so good as the other of King Edward's Testament he would never have quitted the former and sworn to observe the Laws of his Predecessor so likewise Henry I. Mat. Paris from whom all the Kings and Queens of England have since claim'd upon his Election and Coronation for other title he had none granted a Charter whereby he renounced divers illegal practices which Flatterers may call Prerogatives which his Father and brother had exercised contrary to King Edward's Laws and their own Coronation Oaths so that here is an Example of one of the Authors absolute Monarchs who by a right of Conquest might pretend to the exercise of an arbitrary power yet renounced it and only retained so much as might serve for the well governing of his Subjects and his own security It is not therefore true which this Author affirms that this accepted of so much power as the people pleased to give him since they neither desired nor did he grant them any more but those just rights they had long before enjoyed under their former Kings before his Father's coming into England However I conceive this wise Prince was of the opinion of Theopompus King of Lacedemon Plut. in Lycurgo who when his wife upbraided him that he would leave the royal dignity to his Sons less than he found it no rather replyed he greater as more durable and therefore Plutarch in the same place ascribes the long continuance of the Lacedemonian Kingdom to the limited power of their Kings in these words ' and indeed when Envy is removed from Kings together with excess of power it followed that they had no cause to fear that which happened to the Kings of the Massenians and Argives from their Subjects But because this Author tells Mr. H. that if we should ask what proofs or examples he hath to justify his Doctrine of a limited Monarchy in the Constitution he would be as mute as a fish we will shew two or three examples of the antiquity of such limited Monarchies though they were not of the same model with those that are at this day found among the Germanes and other northern Nations descended from thence In Macedon the Kings descended of Caranus as Callisthenes says in Arrian did obtain an Empire over the Macedonians not by force but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by Law So Curtius Lib. IV. The Macedonians were used to Kingly Government but in a greater appearance of liberty than other Nations For it is certain the lives of their Subjects were not at their disposal as appears from the same Author Lib. VI. The Army by an antient custom of the Macedonians did judg of Capital causes i. e. in time of War but in peace it belonged to the People the power of their Kings signified litle unless his Authority was before of some force And this was by original constitution for we do not find that ever the Kings of Macedon altered any thing in their original constitution yet they had the Soveraignty in most things and their persons were sacred So likewise among the antient Romans where Romulus from a Captain of Volunteers became a King Dyonisius Halicar Lib. II. Tells us that after Romulus had made a speech to his Souldiers and followers to this effect that he left it to them to consider what Government they would chuse for whatsoever they pitcht upon he should submit to it and though he did think himself unworthy the Principality yet he should not refuse to obey their Commands concluding that he thought it an Honour for him to have been declared the Leader of so great a Colony and to have a City called by his name Whereupon the people after some deliberation among themselves chose him their King or limited Monarch since both the Senate and people had from the very beginning their particular shares in the Government the Senates making this great Counsel which yet were for the greater part of them chosen out of the Patricians by the Tribes Dyon Hal. Lib. 11. and Curiae with these he consulted and referred all business of lesser moment which he did not care to dispatch himself for be reserved to himself the last Appeal in causes and to be Pontifex Maximus or Cheif Priest and Preserver
is but like the advice and direction which the Kings Councel gives the King which no man says is a Law to the King Igrant this distinction provided the Author will likewise admit another that though the King is not obliged by Laws or to any Judges of them as to Superiors or as to the compulsory Power of them Yet in respect of God and his own Conscience he is still obliged to observe them and not to dispence with them in those cases which the Law does not give him a power so to do and since it is true that it is the rewards and punishments annext that give laws their Sanction therefore there are certain rewards which will naturally bless Princes that keep their Laws such as peace of Conscience Security the affections of their People c. and if I call the contrary effects to these natural punishments that are commonly the consequences of the breach of them I think I should not speak absurdly since the Author himself tells us P. 93. Albeit Kings who make the Laws are as King James there teacheth us above Laws yet will they rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King degenerates into a Tyrant so soon as he seems to rule it is there printed in the Copy according which is nonsence contrary to his Laws and certainly a Tyrant can never promise himself security either from his own Conscience or from Men but whereas he says the direction of the Law is only like the advice which the Kings Councel gives him which no man says is a Law to him is false for the Kings Councel should never advise him to do that which he cannot whith a safe Conscience perform but the Kings Conscience can never advise him to break those Laws that are the boundaries between his Prerogatives and the Peoples just Rights and therefore though it is true in some cases where the King sees the Law rigorous or doubtful he may mitigate or interpret the Execution thereof by his Judges to whom he hath made over that power in the intervalls of Parliament and though perhaps some particular Statutes may be his Authority be suspended for causes best known to himself and Council Yet this does not extend to Laws of publick concernment and for that I will appeal to the Conscience of any true Son of the Church of England whether he thinks for Example that the Proclamation for indulgence contrary to the Statute made against Conventicles were binding or no Neither is this that follows consistent with what the Author hath said before That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good will and for good Example or so far forth as the general Law of the safety of the Commonwealth doth naturally bind him For in such sort only positive Laws may may be said to bind the King not by being positive but as they are naturally the best and only means for the preservation of the Common-wealth So that if a King thinks any the firmest and most indispensible Laws that have been made suppose Magna Charta or the Statute de Tallagio non concedendo for example not to be for the safety of the Commonweal it is but his declaring that he will have them no longer observed and the work is done nor will this that follows help it though true that all Kings even Tyrants and Conquerors are bound to preserve the Lands Goods Liberties and lives of all their Subjects not by any Municipal Laws so much as the natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the publick Good of the Subjects All which is very well but if this Monarch thus succeeding in the place of the natural Father is the sole Judge of what things are necessary for the common good what if he have a mind to keep these Children for Children and subjects slaves are all one with this Authour as some unnatural Fathers do as cheap as they can or to make the most of them will let them enjoy no more but the scanty necessaries of life and will think fair water brown bread and wooden shooes sufficient for a Farmer and 300 l. or 400 l. per annum enough in Conscience for a Country Gentleman or desiring to be absolute and therefore to have a constant standing Army to raise mony with as some Monarchs do and being resolved that for the future all the just rights and priviledges of his Clergy Nobility and People shall signifie nothing will take all the over-plus of his Childrens Estates eaving them no more then a poor and miserable subsistence he may lawfully do what he will with his own and it is all his upon the first intimation of his pleasure by Edict or Proclamation But perhaps some honest Divine may start up and tell him he will be damned for thus abusing his power or breaking his Coronation Oath what What if this Father of his people shall laugh at him for a fool and think himself too cunning to believe any such thing or what if his Son or Successor be resolved not to run his head any more into the snare of a Coronation Oath but finding himself invested in all the absolute power of his Predecessour without any unjust act of his own since we know Princes seldome loose any thing they have once got will exercise it as he pleases for his own humour or glory and thinks himself not obliged in Conscience to restore any of those rights his Predecessor hath ursuped upon his People I know not what benefit this may be to the Prince but this I am sure of it would very little mend the Subjects condition to be told their former Monarch was damned or that this may follow him when they are now slaves nor is this a mere Chimera since a Neighbouring people over against us lost their liberties by much such a kind of proceeding And therefore this Authour hath found out a very fit interpretation of the Kings Coronation Oath Vide Iuramenta Regis quando coronatur old Stat. ed 1556. for whereas he used to Swear that he will cause equal and upright justice to be administred in all his judgments and to use discretion with mercy and truth according to his power and that the just Laws and customes quas vulgus elegerit I will not translate it shall chuse to be observed to the honour of God Yet our Author will have the King obliged to keep no laws but what he in his discretion Judges to be upright which is to make the Oath signifie just nothing as I have proved already wherein he abominably perverts the sense of this Oath for that which he puts first is really last And the words by which he Swears to observe the Laws and customes granted by King Edward and other his Predecessors are absolute and without
certain Revenue appointed for this end of which burthen if you are afterwards a weary you shall not be able to Depose him again since he obtain'd the Kingdom by your choice and consent and so cannot be taken from him So that it is plain that this place does not at all serve to Patronize evil Princes so neither that there is here any limited Power conferred by God after the manner of a constant and unalterable Precept and of which no constitutions can diminish any part since here only the necessary Charges and Burthens as well of an absolute as of a limited Royalty are described therefore it is wholly in the will of a free People whether they will have an absolute Power or will deliver it with certain Laws so that those Laws contain nothing that is wicked or which may destroy the ends of Government for although Men at the beginning did freely enter into a civil Society yet since they were before obliged to the observation of the Law of Nature they ought to Constitute such Rules of Power and civil Obedience which might be agreeable to that Law and to the lawful ends of all Common-wealths But as it may rightly be understood by what sort of Promise a Kingly Government may cease to be absolute for every promise hath not that force it is to be understood that a King upon his taking the Kingdom may oblige himself either by a General or special Promise which for the most part is confirmed by the Religion of an Oath A General Promise may be made either tacitely or expresly A tacite Promise of Governing well is understood in the very acceptance of the Kingdom although there were nothing expresly Promised yet most commonly this promise ought to be made expresly not without an Oath the solemnity of certain rights neither is it unusual that in this promise the Office of a King should be described by a Periphrasis or enumeration of the principal Parts as suppose it be that he will take care of the Publick safety that he will defend the good and punish the bad that he will Administer indifferent Justice that he will oppress no Body or the like Such Promisses do not all detract from absoluteness of his Power since the King is indeed obliged by those general Promises to govern well but what Method or what means he shall make use of for this end is left to his will and discretion but a special promise and in which both the Method and means to be used in the Administring the Government are particularly expressed seem to have a twofold Power for one only obliges the Conscience of the King but the other makes the Obedience of the Subjects depend upon its performance as upon an express condition A Promise of the first sort is thus If the King should swear for example that he will not bestow any Offices of trust on such a sort of Men that he will not grant any Priviledges to any which shall redound to the prejudice of others that he will make no new Laws or impose new Taxes or Customs or will not use Foreign Souldiers or the like Yet if there be no certain Council or Assembly Coustituted which the King should be obliged to consult whether the occasions of the Common-wealth require he should depart from those Engagements for there is still in all of them that tacite exception still understood unless the Safety of the Common-wealth the Supreme Law in all such Engagements require otherwise and which Council by its own right and not precariously can take cognizance of those affairs and without whose consent the Subjects cannot be obliged to observe the Kings commands in such matters here the Administration of the supreme Authority being restrained to certain Laws if the King shall act otherwise unless in cases of great necessity he is without doubt guilty of the breach of his Oath yet there does not therefore belong any power to the Subject to deny Obedience to the Kings commands or of making those actions void For if the King do say That the safety of the People or some remarkable advantage to the Commonwealth requires him to break his Promise as that presumption always ought to go along with the Kings actions the Subjects in this case have not any thing to reply because they have no faculty of taking Cognizance of those actions whether the necessity of the Common-wealth required them or not from which this is apparent that they do not take a sufficient caution if they will allow their King but a limited Power and yet hath not Constituted some great Council without whose consent those actions excepted cannot be exercised or unless there lie upon the King a necessity of calling the Estates whenever he deliberates upon the exercise of those Legislative Powers for that is better than if it should be necessary for the King to consult some Council consisting only of some few of his Subjects since it may easily happen that the private advantages of those few may differ from the publick good and likewise they for their own private Interest may not agree in those things which are truly beneficial for their Prince But the Authority of a King is more closly restrained if it be expresly agreed between the King and People upon the conferring the supreme power upon Him or his Ancestors that he should Administer it according to certain Fundamental Laws and concerning those matters which he hath not absolute Power to dispose of that he leave them to a great Council of the People or Nobility neither may decree any thing in those matters without their consent and if they should be done otherwise that the Subjects would not be obliged to observe his commands in such things neither yet is the Supreme Power rendred defective by such Fundamental Constitutions For all the acts of Supreme Power may be exercised in such a Kingdom as well as in an absolute one unless that in the one the King uses his own Judgment alone as decisive but in the other there is as it were a concomitant Cognizance remaining in the great Council upon which power of the Supreme Authority it does not radically but as it were conditionally depend sine qua non neither are there in such a Common-wealth two distinct wills forall things which the Common-wealth wills it wills them by the Kings will alone although it might happen form that limitation that certain conditions not being observed the King cannot legally will some things and so wills them in vain but neither does the King cease to have the supreme Power in such a Kingdom or that this Council is therefore above the King For these are no true consequences that because this Person cannot do all things according to his own humour therefore he hath not supreme Power I am not obliged to obey this Man in all things therefore I am his Superior or Equal and these are likewise very different I am bound to perform what this Man
pleases because I have obliged my self to it by compact and I am obliged to follow this Mans will because he can enjoyn me thus by his supreme Authority But supreme and absolute are not one and the same thing for that denotes the absense of a Superiour or an Equal in the same order or degree but this a faculty of exerciseing any right by a Man 's own Judgment and Will but what if there be added a Commissary clause that if he shall do otherwise he shall forfeit his Kingdom as the Arogonians of Old after the King had sworn to their Priviledges did promise him Obedience in this manner Vid Hotomani Frarcogallia C. 12. We who are of as great Power as thou do Create thee our King and Lord on this condition that thou observe our Laws and Priviledges if otherwise not Here it is certain that an absolute King cannot be He to whom the Kingdom is thus committed under a Commissary Clause or Condition but that this King may have for all this a regal Power though limited I see no reason to the contrary for although we grant a Temporary Authority cannot be acknowledged for Supreme because it depends upon a potestative condition and which can never be in the Princes power Yet a King of this sort above-mention'd is not therefore subject to the power of the People with whom the cognizance is whether he keep his Oath or not for besides that such a Commissary Clause is wont to comprehend only such plain things which are evident to any Mans sences and so are not liable to dispute So that this power of taking cognizance does not at all suppose any Jurisdiction by which the Actions of the King as a Subject may be judged but is nothing else than a bare Declaration whereby any Man takes notice that his manifest right is violated by another See Grotius Lib. 1. Cap. 3. § 16. And Baecler upon him who are both of the same Opinion Grotius indeed in the same place speaks more obscurely when he says That the Obligation arising from the promises of Kings does either fall upon the exercise of the act or also directly upon the very power of it if he act contrary to promises of the former sort the act may be called unjust and yet be valid if against those of the latter it is also void as if he should have said Sometimes a King promises not to use part of his Supreme Authority but after acertain manner and sometimes he plainly renounces some part thereof concerning which there are two things to be observed first that also some acts may be void which are performed contrary to an Obligation of the former sorts as for example if a King swear not to impose any Taxes without the consent of the Estates I suppose that such Taxes which the King shall Levy by his own will alone to bevoid Secondly That in the latter form the parts of the supreme power are divided But that the Nature of limited Kingdoms may more thoroughly be understood it is to be observed that the affairs which occur in Governning a Common-wealth are of two kinds for of some of them it may be agreed beforehand because whenever they happen they are still but of the same Nature but of others a certain Judgment cannot be made but at the time present whether they are beneficial to the Publick or not for that those circumstances which accompany them cannot be forseen Yet concerning both that People may provide that he to whom they have commited this limited Kingdom should not depart from the Common good in the former whilst it prescribes perpetual Laws or Conditions which the King should be obliged to observe in the latter whilst he is obliged to consult the assembly of his People or Nobility Thus the People being satisfied of the truth of their Religion and what sort of Ecclesiastical Government or Ceremonies do best suit their Genius so it is in Sweden may condition with the King upon his Inauguration that he shall not change any thing in Religious matters by his sole Authority So every Body being sensible how often Justice would be injured if Sentence should always be given by the sole Judgment of the Prince ex aequo hono without any written or known Laws and that Passion VI. Tacit An. L. 13. 4. 2. Interest or unskilfulness would have too great a sway for avoiding this inconvenience the people may oblige their King that either he shall compose a Body of just Laws or observe those that are already extant and also that Judgment be given according to those Laws in certain Courts or Colledges of Justice and that none but the most weighty Causes should come before the King by way of Appeal This is likewise the Law of Sweden So likewise since it is well known how easily Riches obtained by the Labour of others may be squandered away by Luxury or Ambition therefore the Subjects Goods should not lie at their Princes mercy to sustain their Lusts Some Nations have wisely assigned a certain Revenue to their Prince such as they supposed necessary for the constant Charges of the Common-wealth but if greater expences were necessary they would have those referred to the Assembly of Estates And since also some Kings are more desirous than they ought to be of Military Glory and running themselves into unnecessary Wars may put themselves and their Kingdoms in hazard therefore some of them have been so cautious that in the conferring the regal Dignity they have imposed this necessity upon their Kings that if they would make offensive Wars upon their Neighbours they should first advise with their great Council and so likewise it might be ordained concerning other matters which the People judged necessary for the Common-wealth lest that if an absolute power of ordering those things were left to the Prince the common good of the People would perhaps be less considered And since the people would not leave to this limited King an absolute power in those Acts which are thus excepted but that an Assembly either of the whole people or of those that represent them divided into their several Orders it is further to be observed that the power of this Council or Assembly is not alike every where For in some places the King himself though every where absolute may have appointed a Council or Senate without whose approbation he will not have his decrees to be valid Which Senate without doubt will only have the Authority of Councellors and though they may question the Kings Grants or Decrees and reject those which they judg inconvenient for the Common-wealth yet they do not this by any inherent Right but by a power granted them from the King himself Who would this way prevent his decreeing any thing through hast imprudence or the perswasion of Flatterers that might prove hurtful to his State to which may be referred what Plutarch mentions in his Apothegms ' That the Aegyptian Kings
Authour is to be Servant to his Eldest Brother or to whomever else his Father pleased to bequeath him Is not the case the same And as for the quiet of the Family which is supposed to be preserved by the Sons absolute submission rather than his resistance in any circumstance I think it would rather increase Dissentions by encouraging of Fathers to use their Power over their Children not as Reason but Drunkenness or Passion may impel them Whereas this Right of Children in defending their Lives and not being obliged to give them up at their Fathers pleasure will rather make Parents act moderately and discreetly towards their Children when they know they are not obliged to stay or bear with them upon other conditions than that they may enjoy their Lives in safety and the ordinary means thereof with some comfort Not that I give Children any Right as I said before to disobey their Parents or resist them upon every slight occasion but rather to bear with their Infirmities as far as it is possible And to suffer divers Hardships and Inconveniencies from them rather than to resist or leave them considering the great obligation they owe them So that I do not allow this Remedy but in case of extreme Necessity yet of which the Sufferer only in the state of Nature can be Judge since in that state where there is no Umpire without both their consents but God only every man is Judge when his Life is in danger And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission without any respect to this Right then it would be his duty to give himself up to be robb'd or kill'd by any one who had the wickedness to attempt it because himself being innocent may go to Heaven and the other being guilty of an intent to rob or murder may be damned if he be killed And besides it would more conduce to the preservation of Mankinde that but one man should be lost whereas by resistance they may both perish Yet I suppose no man is so sottish as to hold he ought quit his own preservation in these cases or if he do hold it for discourse sake I am sure he would not be so mad as to observe it For this were such an Argument as to hold Because some men may abuse that Law of Self-preservation to another mans destruction Therefore it were unlawful to defend a mans self at all As for the Examples of those Nations and Common-wealths who have permitted Fathers to exercise a Despotick Power over their Children The Law of Nature or right Reason is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth which are often different and contrary to each other Therefore as to the Jewish Law though I will not say it was contrary to the Law of Nature yet it was extremely rigorous and severe in all its dispensations and does not now oblige Christian Common-wealths in this particular as in divers others much less in the state of Nature And as for the Romans they saw the inconveniencies of this Absolute Power and retrenched it by degrees until it came to be no more than now with us and in most Countreys of Europe So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children depending upon the Roman and Jewish Law may be easily answered from these grounds Having as I hope clear'd this main point of Paternal Authority and of Natural Obedience without giving an extravagant power to Parents on the one hand to abuse their power or a priviledge to Children on the other side to be stubborn or disobedient to their Parents If then this Paternal Authority extend farther than I have seated it I shall own my self beholding to any Friend of the Authour 's or his Opinions to shew me my errour But if they cannot I desire they would consider whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution can extend farther than the natural Authority of Fathers from whom they are supposed to derive it and on which it is founded And if it appears that Princes have such Power as our Fathers then all that the Authour hath writ on this subject signifies just nothing Therefore I shall now proceed to examine the rest of his Principles and shall I hope prove that supposing this Fatherly Power as absolute as the Authour fancies yet that his Divine Absolute Monarchy cannot however be derived from thence The Authour seems to think it a Question very easie to be answered If any one asks what comes of this Right of Fatherhood in case the Crown Fatherly power escheat for want of an Heir whether it fall to the People Patriarch P. 20. or what else becomes of it To which his Answer is That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir for an Heir there is always If Adam were still living and now were ready to die it is certain that there is but one Man and but one in the world who is next Heir although the knowledge who should be that one Man be quite lost So that this fine Notion signifies nothing now for Adam being dead and his right Heir not to be known it is all one as if he had none since for ought I know to the contrary the Authors Footman may be the Man But to help this the Author hath found out a couple of Expedients such as they be The first is Directions for Obedience p. 69. That an Vsurper of this Power where the knowledge of the right Heir is lost being in by possession is to be taken and reputed for the true Heir and is to be obeyed by them as their Father And if this will not do he gives us another and tells us Patriarch p. 21. The Government in this case is not devolved upon the multitude but the Kingly power escheats in such cases to the Fathers and independent Heads of Families For every Kingdom is resolved into those parts of which it was first made Each of which we will examine in their turn To begin with the former let us see if it be so easie a thing as the Authour makes it to know who was Adam's or any Monarch's right Heir setting the Municipal Laws of the Country aside so that the People cannot be excused of wilful Ignorance or Negligence if they loose this knowledg Where by the way I observe that as easie a thing as it was to know who was Adam's right Heir and upon whom by the Laws of God and Nature the Crown is to descend upon the Death of the Monarch yet he no where positively answers this important Question For sometimes he is to claim by descent as in this instance of the Heir of Adam sometimes by his Father's last Will as in the case of Noah's Sons according as the Examples out of
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
in their Council in time oâ— Peace and shall not have any power more than that unless in time of War he then is the Mouth of the Senate in time of Peace and their General in War And of this kind was the Lacedemonian King And in modern times the ancient Dukes of Venice when they went out to War And so are those Caciques that the Indians in the Caribbeé Islands and Brasile chuse to be their Leaders in War but in Peace have little or no power So likewise these Masters of Families or Freemen agreeing with him that they would chuse for their Prince what Power he should exercise or they would confer upon him as suppose that he should not condemn any of them to death unless many of the same condition with himself find him guilty or that he should not make any Laws or levie Taxes for the publick Charges of the Commonwealth but what â—hey propose to him and that he swear for himself â—nd his Posterity to observe these Conditions There will then be produced a Limited Kingdom consisting â—f a Prince as the Head of all Civil Power and of an Aristocratical or Democratical Council according as that Assembly consists either of the whole or but of the People And that such a Government is no Soloecism in Politicks I shall prove farther when I come to make some Observations upon this Authors Treatise of the Anarchy of a mixt Monarchy Nor can any man imagine from the Priviledges of the Nobility and People that â—re found to have been almost the same in all these Northern Kingdoms of Europe as ancient as the Government could ever have owed their Original to any other Cause than the Original Constitution of the Government And if these Fathers of Families may â—imit the power they confer upon their new Prince upon this Escheat of the Soveraign Power and retain some of it to themselves they might do the same upon the first institution of the Government either as when so many Masters of Families who had before lived apart and without any dependance upon each other did agree in the state of Nature to erect a Civil Government among them or else when a Colony or Army of men was led out by some particular Captains or Leaders for the conquest of a foreign Country which when conquered and settled every free Souldier in the Army would certainly have as good a Vote in the crcating of their General to be their King as their Captain or Colonel since they all were at first but Volunteers and followed these Captains not from any Civil Authority they had over them but by their own consent But since the Author will by all means have it that these Fathers of Families must needs transfer their power upon one man absolutely who must be endued with all this power without any reservation I shall now give you his best Arguments for this absolute Monarchy and try whether they are unanswerable or not Patriarch p. 49. His first reason for it is built upon Bellarmine's Concession That God when he made all mankind of one man did seem openly to signifie that he rather approved the government of one man than of many This had been somewhat of an Argument if Adam's power had been purely Monarchical over Eve and all his Children and Descendants as it was not but if it had Gods bare Approbation lays no Obligation for all mankind to practise it now any more than it is a good Argument to say that it is now not onely lawful but necessary for men to marry their Sisters because God approved of that way of propagation of mankind at first Secondly God declared his Will when he endues not onely Men but all Creatures with a natural Propensity to Monarchy neither can it be doubted but a natural Propensity is to be referred to God who is the Author of Nature What he means by a Propensity in all Creatures to Monarchy I understand not neither know I any Monarchy among Brutes besides that of the stronger over the weaker and in that Authors sence the master-Buck in a Herd of Deer the master-Bull in that of Cows and the Bell-weather of the Flock are all of them so many Monarchs endued with Fatherly Authority over the Herd or else which is as good are Usurpers of that Authority and so the Herd are all bound in Conscience to submit to them As for the Monarchical Government of Bees whether under a King or Queen I doubt it would pose even those Vertuosi who have glass-Hives to prove their Government an absolute Monarchy both in War and Peace and that none of the Princes of the Bloud or other Bee-grandees have any share in it or that never a Bee in the Hive dare place any Honey in the Combs or eat a drop of what â—e hath gathered her self without the Queens orders â—ut if the Government of Bees be Monarchical and that â—ere a good Argument for Monarchy then that of â—mmets might be so for a Democracy since most Naâ—uralists not being able to distinguish any Kings or â—rinces in the Ant-hill do suppose them to be a Comâ—onwealth But Raillery apart I would be glad to â—e fully satisfied whether Mankind naturally incline to â—e governed by an absolute Monarchy It is true the â—reatest part of the Eastern Governments in the world â—e absolute Monarchs but the Author cannot bring his as an Argument of any Propensity according to his â—rinciples For if all of them were founded upon the â—ight of Fatherhood or else the Vsurpation of that Right his proves rather a natural Obligation to this kind of â—overnment than a Propensity for an Obligation â—nnot be drawn from a bare Propensity Since then 〈◊〉 man would have an Obligation to drink Wine beâ—use as soon as he tasts it he hath a Propensity to it â—nd perhaps may take so much of it until he be drunk â—nd then sick and so this Propensity may turn to a â—urfeit So some Nations as Rome for example â—aving taken a Cup too much of Monarchy this Surâ—it produced an absolute aversion hatred and a proâ—ensity to the contrary extream But as the Eastern â—ations have inclined to an Absolute so have the Weâ—ern either to Commonwealths or limited Kingdoms â—itness the Grecians of old and the modern Kingdoms â—f the Gothick Model as also those petty Governments â—f several Nations in America His third Reason is â—hat God confirmed Monarchy to be the best Government 〈◊〉 that Commonweal which he instituted among the Heâ—rews which was not Aristocratical as Calvin saith â—ut plainly Monarchical If the Author here means beâ—re they desired a King it is true that God himself was their King and govern'd them upon extraordinary occasions by men divinely assisted or inspired 〈◊〉 and such were the Judges whom God raised up to deliver them from the slavery and oppression of their Neighbours and being looked upon as having a great portion of the Spirit of God did likewise judge the People that is decide
in the Assembly of Estates To which the answer is obvious that though it is true the Monarchs passing of Laws whether in the great Council or in his privy Council be but a matter of form if the Legislative power remain wholly in himself yet since even the forms and Circumstances in doing things are such essential things without which business cannot be done If therefore the people made it part of their original Contract with their Prince at first that he should make no laws but what should be of their proposing and drawing up and that he might refuse if he pleased the whole but should not alter any part of it This though in its self a matter of form yet being at first so agreed is indeed an original and fundamental constitution of the Government Therefore the Author is as much mistaken in his Divinity as his Law when Patriarcha P. 97. Resolves the question in the affirmative Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws That the Subject ought to break the laws if his King command him Where as as the Author hath put it nothing is more contrary to Law and Reason for so it would be no sin for Souldiers or others to give and take away mens Goods by force or turn them out of their houses if they could produce the Kings Commission for it and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal for though it was forged yet the forgery being known but to very few it was in respect of those who acted by vertue thereof all one as if it had been true and according to this Authors Divinity Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants since the King by his Commission commanding a man to serve him in the Wars he may not examine whether the War be just or unjust but must obey since he hath no authority to judge of the causes of War which if spoken of such Wars as a King hath a right to make is true but of all warin general nothing is more false as appears by the instance before given nor are the examples the Author there brings at all satisfactory as that not only in humane Laws but also in Divine a thing may be commanded contrary to law and yet obedience to such commands is necessary the sanctifying the Sabbath is a Divine law yet if a Master command his Servant not to go to Church upon a Sabbath day the best Divines teach us that the Servant must obey this Command though it may be sinful and unlawful in the Master because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding Where if the Author suppose as I do not that the Sunday which he improperly calls the Sabbath cannot be sanctified without going to Church or that going to Church on that day is an indispensible duty the Master commanding the contrary ought no more to be obeyed than if he should command his Servant to rob or steal for him but if going to Church be a thing indifferent or dispensible at some times then the Author puts a Fallacy upon his Readers arguing from the non-performance of a thing which is doubtful or only necessary secundum quid in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful Since it is sinful for any Subjects to obey the King 's private or personal Commands in things unlawful and contrary to known positive laws The laws only seting the bounds of Property in all Commonwealths so that though it be no sin in Turky or Muscovy for an Officer to go and setch any mans head by vertue of the Grand Seigniors Commission without any trial or accusation I suppose any man that valued his life would say it were murder for any person to do the same by the Kings bare Commission in England and yet there is nothing but the Laws and Customs of each Government that creates the difference Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law since there are some Laws which the King hath power to dispence with and others which he hath not and others which he may dispence with but yet only for the publick good in cases of extreme necessity But to affirm as the Author does without any qualification or restriction that it is a sin to disobey the Kings personal Commands in all cases however issued out favours of Mr. Hobs Divinity as well as Law nor does the Author himself when he hath thought better on 't Patriark P. 99. assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws and to defend the peoples rights as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right So it is true the King hath a power to pardon all Felonies and Manslaughters and perhaps Murders too yet supposing this power should be exerted but for one year towards all Malefactors whatsoever any man may easily imagin what such a Prerogative would produce So that the publick good of the Kingdom ought to be the rule of all such Commands and where that fails the right of commanding ceases Ib. 99. As for the instance of the Court of Chancery it is not a breach of the Kings Preogative but part of the Common Law of this Kingdom so no man that understands any thing of Law or Reason will affirm that it is a Court of that exorbitant power that it is limited by no rules or bounds either of Common or Statute Law or of the Laws of aequum and bonum or that every thing that a Chancellour who is keeper of the Kings Conscience decrees must be well and truly decreed since this were to set up an absolute Tyrany But I shall now proceed to examine the rest of the reasons the Author gives either in this Treatise or his Patriarcha against the possibility of a limited Monarchy He finds fault with Mr. H. P. 281. ' For asserting that a Monarch can have any limitation ab Externo and that the sole means of Soveraignty is consent and fundamental contract which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection upon which our Author inquires thus if the sole means of a limited Monarchy be the consent and fundamental contract of a Nation how is it that he saith a Monarch may be limited by after condescent is an after condescent all one with a fundamentnl contract or with an original and radical constitution why yet he tells us it is a secundary original constitution A secundary original that is a second first
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
comitum omnium Sapientum Seniorum Populorum totius Regni And whoever will but examine the said Collection of Sr. Henry Spelman will find almost all the Ecclesiastical Constitutions confirmed if not made in the Wittena Gemote the Great Synode or Council So that what this Author says of the difference of the Laws and Customs of the several Kingdoms during the Heptarchy makes nothing against us as long as we can prove that in the main the Government of them all was alike in the three great Liberties of the Subjects viz. Trial by a Mans equals and absolute Propriety in Lands and Goods which the Kings could not justly take from them and a Right to joyne in the making of all Laws and raising Publick Taxes or Contributions for War So that without doubt these Wittena Gemotes or great Councils were Ordained for some Nobler and Higher purpose then either to give the King advice what Wars to make or what Laws to make or barely to Remonstrate their grievances as this and some other Modern Authors would have it for what King would call so great a Multitude those Antient Parliaments consisted of to be his Councellors Or would call together the whole Body of a Nation only to be made acquainted with their grievances which he might have known with greater ease to himself and less charge to the Subjects by having them found by the Grand Inquest in the County-Court And so to have been presented to him by the Earl or Alderman of each particular County whereas we find these great Councils imploy'd in businesses of a higher Nature such as the confirmation of the Kings Charters the Proposing of Laws the Election of Archbishops other great Officers So that the Higher any Man will look back the more large uncontroulable he will find the Power of this great Assembly Since before the Conquest and afterwards too we find them to have often Elected Kings when the Children of their last King were either Minors or supposed unfit to Govern So that whoever will take the pains to consult our Ancient Saxon and English Historians will find that there was never Anciently any Fundamental or unalterable Law of Succession nor was it fixed for any two Discents in a right Line from Father to Son without interruption until Henry the Third and then it lasted so but Four Generations reckoning him for the first And as for these particular Laws or Customs the Author mentions whether King Edgar or Alfred first Collected them as were also Corrected and Confirmed by both the Edwards to wit the Elder and the Confessor they still owed their Authority to the King Vi. Lambert de priscis Anglorum Legibus p. 1â—9 and his Barons and his People as Malmesbury before asserts As for the Danish Laws they never prevail'd but in those Countrys which the Danes intirely Conquered which consisted mostly of them as Norfolk Suffolk and Cambridge-shire but as for the rest of England it was governed by its own Laws and enjoyed its Ancient Customs in the Reign of King Knute and his Successors of the Danish Race See the Charter of K. Knute quoted by Mr. Peâ—yt in his said Treatise pag. 146. But to come to the Authors next Reason why there can be no Fundamental Laws in this Kingdom viz. Because the Common Law being unwritten doubtful and difficult cannot but be an uncertain Rule to govern by which is against the Nature of a Rule which always ought to be certain This is almost the same Argument as the Papists make use of against the Scriptures being a Rule of Faith only their Reason is that the Scriptures are obscure because they are Written and need an Expositor viz. The Church or Tradition but with Authors it is contrary the Law is doubtful because unwritten whereas all that understand any thing of the Nature of the Laws of England know very well that the Common Law whose Authority depends not on any set Form of Words but the Sence and Reason of the Law is much less doubtful and makes fewer Disputes then the Statute-Law but though it be granted that many things in the Common Law are doubtful and difficult yet in the Main and Fundamental parts of it but just now recited it is plain enough As the Scriptures though doubtful or obscure in some things yet are plain and certain in all Points necessary for Salvation and why it is harder for an ordinary Countrey Fellow in a Civil Government to know when he is Condemned to be Hang'd without trial or to have his Goods or Money taken from him by a Fellow in a Red-coat without any Law then for him to judg in the State of Nature when another Man lies with his Wife or goes about to Rob or Murther him I know not His last Reason against making Common Law only to be the Foundation when Magna Charta is excluded from being according to Mr. H. a Fundamental Law and also all ' other Statutes from being limitations to Monarchy since the Fundamental Laws only are to be judg and these are Statute Laws or Superstructures This is also meer Sophistry since no Man in Metaphors or Similitudes ever expects an absolute Truth but what if the great part of the Magna Charta were Fundamental Laws before either King Stephen or King John granted it and that they did but restore what some of their Predecessors had before by oppression taken from their Subjects since there is little or none of it but was part of King Edward's Laws and consequently the Ancient Saxon Law before the Conquest and the like may be said of all other Constitutions in limited Monarchies as suppose in Denmark the Crown which was before Elective is now by the Concession of the Estates become Successive I believe no Men of this Authors Opinion will deny that this is not now a Fundamental Law in that Kindom and can never be altered without the Consent of the King and the Estates and yet this is a Law that follows after the Government was Instituted nor can I see any Reason why this Rule may not hold as well on the Peoples side as the Kings Why Rules of Play may not be made as well after the Gamesters are in at Play as when they first began and may not be as well called Fundamental Laws of the Game since if they are not observed it may be lawful for any of the Gamesters to fling up his Cards and play no more though he be at play with the Authors Natural Monarch his own Father But our Author will not leave off so but must give us one stabing Paragraph more against Fundamental Laws which is thus ' Truely the Conscience of all Mankind is a pretty large Tribunal for these Fundamental Laws to pronounce Sentence in It is very much that Laws which in their own Nature are dumb and always need a Judg to pronounce Sentence should now be able to speak and pronounce Sentence themselves Such a Sentence surely must
for who hath greater need of Prudence then he who deliberates of such great Affairs Who of more exact Justice then he who is above the Laws Who of a more severe modesty than he to whom all things are Lawful Who of greater Fortitude than he who keeps all things in safety Yet because the Judgment of any one man in discerning that which truly conduces to the publick safety may be easily deceived neither is there in all Men that strength of mind that they may know how in so great a Liberty to govern their Passions and Lusts as Herodian Li. 1. Cap. 4. well observes that it is difficult in the highest Liberty for a Man to restrain himself as it were to bridle his own desires Therefore it seemed most convenient to divers people not to commit so great a power to one mans sole discretion and he no more free from Errors than others but rather more subject to Vices and therefore would rather prescribe the Prince a certain Form or Method of dispatching of publick Affairs after it was at first found out what sort of constitutions or forms of dispatching publick Affairs did best suit with the Genius of the people and the Nature of the Common-wealth to be constituted Neither is there any injury done to the Prince who was at first raised to that Dignity by the free consent of the people upon those conditions For if it seemed grievous to take the supreme Authority because he could not manage it as he pleased he might have refused it if he would so the Conscience of the Oath by which they are obliged upon their taking this Authority ought to restrain them and their Successors from going about to make themselves absolute by secret Machinations and Designs Much less to subvert the Laws of the Kingdom by force Plin. Paneg. Since an Oath is not more Religiously to be observed by any than he whom it most chiefly concerns not to be perjured For that is too weak which some maintain that since Kings are ordained by God who injoyns them a true discharge of their Duty which cannot be performed without the exercise of the most absolute power and therefore God is to be supposed to have conferred such a proportion of power on all Kings as that they ought not to suffer the least part thereof to be diminished or circumscribed and that the People can neither rightly require or oblige their King to it no more than there can honestly be made such a bargain between a Husband and a Wife that he should connive at her stolen pleasures But as we have already sufficiently proved that as all Civil Government is from God yet is so left in Mans disposal at least to those that God did not give any particular Laws to what sort of Government they would set up as Phil. Melancthon in his Epitomy of Moral Philosophy honestly teaches That the forms of Kingdoms are different and in some places there are some degrees of Liberty more than in others For God approves all Forms of Government that are agreeable to Right Nature and Reason and as I think there is no where any Divine precept extant that a free People being about to chuse it self a King should chuse Cajus rather than Titius no more is there any certain form Divinely establish'd under which and no other Authority is to be conferred on Princes Neither are these Men any way helped by that place of 1 Sam. 8. where some will have only the bare unjust practice of Kings that the true right of all Kings is to be there described But Grotius Lib 1. c. 4. § 3. Taking a middle way lays down that there the bare actions of a King is described yet what hath the effect of a right to wit an Obligation of non resistance So that however a King may act against his Duty when he commits such things yet that his Subject sought no more to resist than if he had acted thus by the highest Right and therefore it is added that the People pressed by those vexations should cry to God because there remained no humane remedies So that this was called the Right of the King in that sence as the Roman Praetor was sayed jus reddere to judg right even then when he decreed unjustly however I conceive the true sence of this place may be thus understood there had been hitherto a Democracy among the Hebrews but that which often resembled that sort of Kingdome which Aristotle calls Heroical The Judges incited by a divine instinct did for the most part rescue the oppressed People from their Enemies or else in Peace Judged Causes but in other matters were rather endued with a power of perswading than commanding but yet their Equipage and State being small was not born or encreased by any Publick Taxes yet the People weary of this Government would have a King after the manner of other Nations That is who should appear in great State and Splendour and should maintain a constant Guard or at least should still exercise his Subjects in Arms that they might still be able to meet their Enemies in the Field see Sam. XIII 2. XIV 48 52. Now Samuel that the People might consider of it soberly before hand lays open to them the Prerogatives of such a King and the inconveniencies of that Government You would have a King remarkable by a great deal of Splendour but such a one must be attended with a numerous Train and so will take your Sons and appoint them for himself and to be his Horsemen and to run before his Chariots You would have a King who should maintain an Army but it will be necessary that he appoint him Captains over Hundreds and Captains over Fifties and this must be of your Sons who were used before to look after your own business only the greatness of his affairs and the state of his Office will not permit this King to till his own Land Therefore of your Sons will he set some to Ear his Ground and Reap his Harvest and to make his Instruments of War and since besides he must need a great deal of Attendance and that it will not become the Dignity of his Wives or Daughters to look after the Houshold-affairs Therefore he will take your Daughters to be Confectioners to be Cooks and to be Bakers he will likewise stand in need of many Servants to dispatch the businesses of War and Peace and who all must have Salaries and therefore he will take your Fields and your Vineyards and your Olive-Yards and give them to your Servants and to this purpose he will take the Tenth of your Seed and of your Vineyards and give to his Officers and to his Servants and he will likewise when he hath need take your Men-servants and your Maid-servants and your young Men and your Asses and put them to his work In short he says no more than this If you will have a King he must be maintained like a King and a