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
very Constitution of the Commonwealth some have crept in by success of time and by insensible degrees So that it might happen that a regular Form could not well be Instituted from the very Original of the Commonwealth or some remarkable mutation of it either by the Founders or Authors of that mutation either thorough their unskilfulness or because the urgency of their affairs or temper of the People did not permit them to consider of the means of doing it otherwise nay oftentimes thorough either the carelesness of those that Govern or by some other ' occasion a Disease invades the Commonwealth which when it hath taken such deep Root that it cannot be expelled with out the destruction of the Government there is nothing then to be done then that the Disease should cease to be so by a Publick Sanction and that which hitherto was Usurpation Faction on Contumacy may for the future become a Priviledge or right So much of Irregular Governments or Monarchies But in the next Chapter of the same Book the same Author speaking of the rights of the Supreme power where when he hath first proved what it is that makes any Power be called Supreme in a Common-wealth and that he who hath this Power must be free from punishment and not obnoxious to humane Laws and that he hath confuted the Long Parliaments distinction of a real and Personal Majesty and that Kings properly so called must be Superior to all the People and having answered the Objections to the contrary at last he proceeds § 7 to shew what absolute Power is and that it is not found alike in all Forms of Common-wealths and gives us the true Original of limited Governments his sence is so good that I shall not much contract what he says but give it you as it is § 7. 8 9 10. Besides it is apparent enough that in some Common-wealths the Royal Authority is free in the exercise of its Acts but restrained to a certain Mode of acting from whence arose the distinction of Empire into limited and absolute where in the first place it is to be explained what is meant by the word absolute which is so odious to those who have had their Education in free Common-wealths Indeed the same word being ill interpreted may incite some Princes to vex their Subjects and to commit a great deal of wickedness Flatterers adding fuel to the Fire who are still ready to encourage the Ambition and other Vices of their Prince at this rate Sir you are absolute therefore if it pleases you it is lawful therefore you may tire out your own Subjects and all your Neighbours with unnecessary Wars that you may appear a mighty Monarch and set forth your own Glory therefore you may affront and insult over whom you please and drain your Subjects with all sorts of Exactions that you may have wherewith to serve your Luxury or Ambition according to the Flattery of Anaxarchus to Alexander upon the death of Clitus that right and wrong Plutarch ad Princi indoct do sit by Jupiter that whatsoever the King does ought to be accounted right and just so that there are some who go about to establish the absolute right of Kings by Arguments that seem to have no other Measure thereof then impunity and a License to vex their People Therefore as by an absolute Liberty of particular Men is meant their judging of their own affairs and actions according to their own and not anothers judgment yet still supposing their Obligation to the Laws of Nature And that this Liberty belongs to all Men who are not as yet subject to anothers will so where divers Men have United together into a perfect Common-wealth it is necessary for the same liberty or faculty of appointing resolving all means necessary for their own safety should now exist in the Supreme Power as in a common Subject which Liberty is accompanied with the Highest Authority or a right of prescribing those means to the Subjects and of compelling them to their Duty therefore in every Commonwealth properly so called there must be an absolute Power at least habitual though not always exercised for it must be answerable to Superior and to have a right of Judging of its own affairs by its own Judgment and will Therefore that absolute Power implies nothing in its self unjust or intolerable is easie to be perceived from the ends of instituting of Commonwealths For indeed we never constituted them that neglecting Natural right things should be done out of a wicked and perverse Lust or Humour but that the security and safety of singulars may be more conveniently looked after by the joint assistances of many So that they might more safely and with more leasure live after the Laws of Nature and Virtue Yet when this Supreme Authority is considered as it is conferred upon one Man or one Council consisting of all or few as in its proper subject it is not always free and absolute but in some places limited by certain laws indeed in Democracies the difference between absolute and limited Power seems not so easie to be observed for although in every Democracy there must needs continue certain Institutions received by use or establisht by written Laws at what time and by whom the People should be Assembled and Publick business proposed and Executed since without such things a Common-wealth cannot be understood yet since that Council consists of all the Citizens in whom the Soveraign Authority resides nothing can hinder but those Constitutions may be altered or abrogated at any time by the same People that made them But in Aristocracies and Monarchies where there are some who command and others who obey and so a Right arises to these from the Promises and Commands of the other There does plainly appear a difference between an absolute and limited power he is therefore absolute who exercises his Authority according to his own discretion and not according to the Rule of any certain or perpetual Constitutions but as the present condition of affairs require and who does so provide for the safety of the Common-wealth as its occasions direct him from whence the word absolute is so far from implying any thing unjust or hateful in it self or intolerable for Free-men that it should rather lay upon such absolute Princes necessity of greater care and circumspection if they will acquit themselves of their Duty and discharge their Consciences as they ought then on those to whom a certain form of dispatching publick Affairs is prescribed So Dio Chrysost Orati 62. describes an absolute Prince thus a good Prince covets nothing because he supposes himself to possess all things he abstains from pleasures since he may enjoy whatsoever he pleases He is juster than others as he who is to be an example of Justice to others He takes pleasure in business because he labours of his own accord He loves the Laws because he does not fear them and of all these he rightly perswades himself
the Second Point proposed and consider what kinde of Right this is and how far it extends Since therefore the Father's greatest interest in his Child proceeds from his having bred it up and taken care of it and that this Duty is founded on that great Law of Nature that every Man ought to endeavour the common good of Mankinde which he performs as far as lies in his power in breeding up and taking care of his Child it follows that this right in the Child or power over it extends no farther than as it conduces to this end that is the good and preservation thereof and when this Rule is transgressed the Right ceases For God hath not delivered one man into the power of another merely to be tyrannized over at his pleasure but that the person who hath this Authority may use it for the good of those he governs And herein lies the difference between the Interest which a Father hath in his Children and that property which he hath in his Horses or Slaves since his right to the former extends only to those things that conduce to their Good and Benefit but in the other he hath no other consideration but the profit he may reap from their labour and service being under no other obligation but that of Humanity and of using them as becomes a good-natur'd and merciful man yet still considering and intending his own advantage as the principal end of his keeping of them Whereas in his Children he is chiefly to design their good and advantage as far as lies in his power without ruining himself and though he justly may make use of their labour and service while they continue as part of his Family yet it is not for the same end alone that he uses his Horses or Slaves but that his Children being bred up in a constant course of Industry may be the better able either to get their own living or else to spend their time as they ought to do without falling into the Vices of Idleness or Debauchery So that it is evident the Father has no more right over the Life of his Child than another man being as much answerable to God if he abuse this Right of a Father in killing his innocent Son as if another had done it Neither hath he from the same Principles any right to maim or castrate his Child as this Author allows him to do in his Directions for Obedience much less sell him for a Slave Therefore it is no part of the Law of Nature unless he cannot otherwise provide for it but of the Roman or Civil-Law that a Father should have power to sell his Son three times For the Father is appointed by God to meliorate the condition of his Child but not to make it worse since it is not himself but God that properly gave him his being So that I hope I have sufficiently proved there is a great difference between a Child and a Slave or a Servant for Life though this Authour will have them in the state of Nature to be all one But for the better clearing of this point how far the power of Parents over their Children extends I think we may very well divide as Grotius does the life of the Child into three periods or ages De J.B. l. 2. c. 5. § 2. The first is the time of imperfect judgment or before the Child comes to be able to exercise his Reason The second is the period of perfect Judgment yet whilst the Child still continues part of his Fathers Family The third is after he hath left his Father's and either enters into another Family or sets up a Family himself In the first Period all the actions of Children are under the absolute dominion of their Parents for since they have not the use of Reason nor are able to judge what is good or bad for themselves they could not grow up nor be preserved unless their Parents judged for them what means conduced to this end yet this power is still to be directed for the principal end the good and preservation of the Child In the second Period when they are of mature Judgment yet continue part of their Fathers Family they are still under their Fathers command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns and in both these Ages the Father hath a power to set his Children to work as well to enable them to get their own Living as to recompence himself for the pains and care he hath taken and the charge he may have bin at in their Education For though he were obliged by the Law of Nature to breed up his Children yet there is no reason but he may make use of their labour as a natural recompence for his trouble And in this Period the Father hath power to correct his Son if he prove negligent or disobedient since this Correction is for his advantage to make him more careful and diligent another time and to subdue the stubbornness of his Will But in other actions the Children have a power of acting freely yet still with respect of gratifying and pleasing their Parents to whom they are obliged for their Being and Education since without their care they could not have attained to that age But since this Duty is not by force of any absolute Subjection but only of Piety Gratitude and Observance it does not make void any act though done contrary to those Duties as Marriage and the like for the gift of a thing is not therefore void though made contrary to the Rule of Prudence and Frugality In the third Period they are in all actions free and at their own dispose yet still under those obligations of Gratitude Piety and Observance toward their Parents as their greatest Benefactors since if that they have well discharged their Duty toward their Children they can never in their whole lives sufficiently recompence so great benefits as they have received from them But it seems the Authour is not satisfied with these distinctions Observations on Grotius de J. B. p. 62. but saies He cannot conceive how in any case Children can ever naturally have any power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please them And though by the Laws of some Nations Children when they attain to years of discretion have Power and Liberty in many actions yet this Liberty is granted them by positive humane Laws only which are made by the Supreme Fatherly Power of Princes who regulate limit or assume the Authority of Inferiour Fathers for the publick benefit of the Commonwealth So that naturally the Power of Parents over their Children never ceaseth by any separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents For my part I see no
reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary For he only tells us He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please without their Fathers leave and that naturally the Power of Parents never ceaseth by any separation c. but gives us no other reason than that they are always bound to study to please them As if this obligation of Gratitude and Complacency did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children and an absolute power over them in all cases whatsoever so that Children shall have no Right left to consult their own good or preservation in any case whatsoever Vid. Bodin de Rep. l. 1. c. 4. farther than the Father pleases As for Bodin and divers others that have writ on this subject they do no more than follow others who have asserted this Absolute Power upon no other grounds than the Jewish or Roman Municipal Laws but have never troubled themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Nature or Reason And most Treatises of this subject being commonly written by Fathers they have been very full in setting forth their own Power and Authority over their Children but have said little or nothing of the Rights of Children in the state of Nature towards their Parents Loc. sup laudat Therefore Bodin thinks he hath done enough in supposing that if a Father is wise and not mad he will never kill his Son without cause since he will never correct him without he deserve it and that therefore the Civil Law supposes that the Will of the Parents in managing the concerns of their Children is void of all Fraud and that they will rather violate all Divine and Humane Laws than not endeavour to make their Children both rich and honourable And from those instances out of the Roman Law supposes that Parents cannot so much as will any thing to their Childrens prejudice or so much as abuse this Fatherly Power of Life and Death And therefore thinks he hath sufficiently answered the Objection he makes that there have been some Parents who have abused this power so far as to put their Children to Death without cause He says They give us no Examples to the contrary And supposing this to have sometimes fallen out must therefore Legislators alter a wholsome Law because some persons may abuse it But if we consider what Bodin hath here said we shall finde every one of his Suppositions false For 1. he supposes it to be the Right of all Fathers by the Law of Nature to have an absolute power over the lives and persons of their Children 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point 3. That Fathers do seldom or never abuse this power 4. That if they do abuse it yet it is better to leave it in their hands than to abrogate it or retrench it The falseness of all which Assertions I either have already or else shall hereafter make manifest Only I shall remark thus much at present That upon Bodin's principle women that murder their Bastards would have a good time on 't because having no Husbands they have full power over the Life of their Children and there is no reason that it should be retrencht by any positive Laws because some offend against it But however this Argument of Bodin's would do our Author's cause no good for if Parents are to be trusted with this absolute power over their Children because of the natural affection they are always supposed to bear them then Princes ought not to be trusted with it since none but Parents themselves can have this natural affection towards their Children Princes as the Author grants having this power onely as representing these Parents Whereas Parentage is a natural Relation and neither can be created nor assigned farther than the Civil Laws of the Country have appointed and therefore there can be no adopted Son by the Law of Nature since Adoption arises chiefly from the promise and consent of the person adopted and partly from the Authority of the Civil Law or Municipal Law of the Commonwealth So that in relation to Princes upon this Reason of Bodin's cessante causa cessat effectus But indeed Bodin never dreamt of this fine Notion of our Author's that all Monarchs were not onely Heads but Fathers of their people or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino But I shall trouble my self no farther with him at present but shall proceed to consider this point of absolute Obedience a little farther I suppose the Author as any sober man else would grant that Children are not obliged so much as to attempt to perform the commands of their Parents in case they evidently appear impossible or extravagant such as a Father may give when he is in a fit of drunkenness madness or sudden rage which is all one with madness and of this who can judge but the Children who are to perform these Commands And in this case no man will deny but it is lawful for the Children to hold nay binde their mad or drunken Parents in case they cannot otherwise hinder them from doing mischief or killing either themselves their Mothers or Brethren So that though they may do this from that natural love charity which all men in the state of nature ought to shew toward each other yet they may likewise justifie the doing of it as Children who ought to have a greater concern for the good and preservation of their Parents than meer strangers and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations this being for the Fathers good and preservation and that for which he hath cause to thank them when he comes to himself And if it be said that the Son may then refuse his Fathers Commands or resist them pretending he is mad drunk or in a rage when he really is not and thereby take occasion to obey his Father no farther than he pleases to this I answer That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned or else onely pretends that he thinks so when really he does not If in the first case he erre in his judgment and the ignorance did not proceed from his own fault either of passion prejudice or too slight an esteem of his Fathers understanding he is not culpable though he make such a false judgment of his Fathers actions for God considering onely the sincerity of the heart does not require of any man more than he is able to perform But if on the other side the Son play the Hypocrite and refuse
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
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
no more to be said And as for the places out of St. Paul and Peter it not being my designe to write Divinity-Lectures I shall refer the Reader to the learned Commentators onely I shall take notice that his Assertion That these Apostles wrote their Epistles when the name of the Authority and People of Rome was still in being though the Emperours had usurped a Military Power and yet though the Government was for a long time in most things in the Senate and People of Rome yet for all this neither of the two Apostles take notice of any such Popular Government and our Saviour himself divides all between God and Caesar and â—llows nothing to the People All which though but a Negative Argument against Popular Government and â—o not conclusive yet the foundation of it is not true For though in Rome there remained a shadow of the Power in the Senate yet it was onely in such cases as â—he then Emperours committed to their judgment as â—he Kings of France do now make use of the Parliament of Paris onely to ease themselves of divers troublesome Causes or to take off the odium from themselves as in the condemnation of Sejanus and divers other Conspirators against them and yet they reserved the last Appeal to themselves in Cases both Civil and Capital as may be observed in St. Paul's appeal to Caesar and it is certain that the Roman Emperours in those times put men to death as often as they had a mind to it by their own power made what Edicts they pleased and appointed Proconsuls and Governours of Provinces as often as they saw it convenient and had all Money coined with their Image or Superscription and received and disposed of all Tributes publick Taxes And yet this Author doubts whether Tiberius Claudius or Nero were absolute Monarchs when they had all the Prerogatives that a Monarch could have I come now to the Author's Observations on Aristotle's Politicks It will be easie to prove that he makes use of him in all places that make for his Hypothesis but takes no notice of those that make against it a usual course among Writers especially in Politicks or Divinity Nor does he onely do this but likewise oftentimes perverts Aristotle's sence to make it subservient to his own of which I shall produce these instances In his first Quotation p. 3. he renders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the eldest in every house is King Whereas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not here signifie to be an absolute Monarch but to govern as a Master of a Family or chief Ruler a power faâ— short of that of an absolute Monarch And so Lambinus hath rendered it in his Version So likewise he hath misplaced these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and makes them to come in as a reason of what he says before concerning a perfect Monarchy whereas this sentence precedes the former and there are three or four sentences between them and therefore it cannot serve for a Consequent where it is really an Antecedent Nor is this sentence truely rendered by the Author For a King according to Law makes no kind of Government whereas he should have said No distinct species of Government for so are these last words to be rendered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or else he would make Aristotle contradict himself if after he had spoke so much in other * Vid. 3 Pol. c. 14. Speaking of the ancient Heroical Kingdoms places of a King according to Law he should make it no kind of Government at all So likewise p. 4. he misrenders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That of all Governments Monarchy is the best and a Popular State the worst Whereas any one but meanly skill'd in Greek knows that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not signifie Monarchy but Kingship and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is not a Popular Estate but an Aristocratical Commonwealth and in the same Chapter put in opposition to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I shall not trouble my self to inquire whether Aristotle distinguishes well between an Aristocracy and an Oligarchy or between an Oligarchy and a Democracy or whether he do well to exclude Artificers from any Vote in the Government These I shall leave to be defended by those that are greater admirers of him than my self onely I will see that if I can he have fair play and not that sence put upon him that he never meant And therefore I shall turn over to p. 12. where he quotes another place out of Aristotle's fourth Book cap. 13. That the first Commonwealth among the Grecians after Kingdoms was made of those that waged War From whence he would infer That the Grecians after they left off to be governed by Kings fell to be governed by an Army So that any Nation or Kingdom that is not charged with the keeping of a King must perpetually be at the charge of paying and keeping of an Army Which though it happened true during the corrupt Oligarchy of the Rump which was â—ut an armed Faction contrary to the sense of this Nation yet is not a necessary Consequent of all Commonwealths Neither is it the Author's sence in this place as may appear by what he says before and what â—ollows these words That he meant no such thing a standing Army in constant Pay being a thing unknown among the Greek Commonwealths where every Freeman served in person as a Horseman or on foot according to his ability as any that reads those Histories may easily observe and a Guard of Strangers or a constant standing Army was ever held the Body of Tyranny as it still continues in all absolute Monarâ—hies from France to China But to return to Aristle in the place before cited by the Author where speaking just before of the Government of the Maleans and other Greek Commonwealths he says That their Government consisted not onely of those Footmen that bore Arms but of those that had served in the Army And then follows these words quoted by the Author 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are not well rendered by those that waged War since they should rather be rendered by those that went to the Wars this Force not being to defend them from their own Citizens but Neighbours with whom they were still at Wars for it appears that not onely those had a share in the Government who were actually in Arms but those also that had served in the Army for Aristotle says immediately after That their Strength consisted chiefly at first of Horsemen and that as the Common-wealths increased in the strength and number of them that were of ability or substance to bear Arms the Administration of the Commonwealth was communicated to more From whence it appears that as also at first among the Romans they onely had a Voice in their Councils or Assemblies who were able to maintain themselves in the Wars at their own charge As amongst us none have a
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-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
Sons reign we find the Procurators of the Nobility and People of England declare in the Council of Lyons quod universitas Regni nunquam i.e. Patres nobilium vel ipsi never consented or would ever consent to the tribute unjustly extorted by the Court of Rome At which protestation his Holyness was so confounded that our Author tells us he never lift up his Eyes or had a word to reply And every Monarch hath as absolute a Propriety in his Kingdom as Noah had in the World as our Author supposes I know no reason why the King may not bequeath his Crown to which of his Sons he pleases no matter whether lawfully begot or not since Princes are above all Terms or positive Laws or he may divide it among them as Noah did the World to his three Sons So that upon these grounds the Testament of Henry VIII whereby he disinherited the Line of Scotland and that of Edward VI. whereby he excluded his Sisters from the Crown should have been valid but the Loyal Subjects of England beleived that neither of those Kings could disinherit the right Heir of the Crown by their Testaments alone but acknowledge them in the persons of Queen Mary and King James notwithstanding those pretended Wills I have been the larger upon this Subject that men that do not much consider nor are versed in these matters may see the absurd wicked consequences of this notion of an absolute Propriety and Dominion to be inseperable from Monarchy So that I doubt not but even those very men who love a smatch of arbitrary Government because it best suits with their tempers or interests cannot away with it unmixt when it comes to exert all its Prerogatives Thus some men think Musk and Ambergreece mixt whith other Ingredients makes an agreeable Perfume which if held to their noses in the Cod or whole Lump they are so far from thinking a good smell that they loath it I shall not affirm with Grotius That the Empire which is exercised by Kings doth not cease to be the Empire of the People For I suppose the People have passed over all their present interest in it to the Prince and his heirs and as long as that line lasts they have nothing to do with it and consequently cannot set up another Family over them and so on the other side the King hath no such absolute Property as that he can alter the succession otherwise than the fundamental laws of the Monarchy did first appoint which were made by consent of all the Estates and without which they cannot be altered nor is there any fear of a contradiction as the Author supposes That the Succession must either hinder the right of Alienation which is in the People or the alienation must destroy the right of succession which must attend upon elected Kings For we own no right of alienation in the People as long as there is a lawful Heir remaining and succeeding in his right to whom the Crown was first legally setled nor yet does therefore the succession diminish the right which the People had at first but that it may arise and take place again if the King should die without known heirs Having done with his observations upon Grotius Chap. VI. I am now come to his Anarchy of a limited or mixt Monarchy in which though I shall not undertake to maintain all which our Author if whom he writes against hath laid down in this treatise since many things in that it treats were written according to Irene's notions during the late Warrs yet I hope I may be able to shew that this Doctrine of a limited Monarchy is not but of Yesterâ—lay as our Author will have it But that all the learned men in the laws and constitutions of these Northern Kingdoms have held it to be no such damnable Doctrine but that the contrary would introduce â—ll Tyranny and Arbitrary Government among them which is at this day practiced in the Eastern parts of the world But it seems the Author allows 260. that there may be a mixt Government but not a mixt Monarchy because the word Monarchy is compounded of two Greek words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one alone and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Govern or Rule and therefore Monarchy being the Government of one man alone cannot admit of any limitation or mixture But what if one should say that all this is nothing but wrangling about words since why may not he be called a Monarch who hath the Supreme though not the only Power in a Common-wealth if the custom of that Country allow it him though his Power be limited or mixt as well as for the Romanes to call their Monarch but Imperator or General or for the Florentines or Russians to call their Monarch great Duke Since it is not the names but the exercise of the power that creates the difference Nor is it any more a Bull or contradiction than to call that which I now write out of an Inkhorn though perhaps it is made either of Glass or Mettal So the first Monarch being absolute the Title of Monarch may now be by eustom well enough applyed to those that are not absolutely so but to pass by such Grammar niceties I shall endeavour to vindicate the writer of this Treatise of Monarchy whom the Author calls Mr. Hunton from giveing an Idea of a Government which is nothing but meer Anarchy and Fiction and that there hath been and yet is such a kind of Government as a limited Kingship which if the Author is so dogged as he will not allow it the name of a Monarchy we cannot help it let his Friends give it a more proper name if they please As for what he will prove out of that Authors words that every Monarch even his limited Monarch must have the Supreme Power of the state in himself so that his Power must no way be limitted by any power above his For then he were no Monarch but a subordinate Magistrate is true yet I do not see that the Author contradicts himself as the observatour will have him when he tells us in the same Page That in a moderate or limited Monarchy the supreme power must be restrained by some law according to which this power was given and by direction of which this power must act So that he will have his Supreme Power not limited and yet restrained Is not a restraint a limitation and if restrained how is it Supreme and if restrained by some law is not the Power of that law and of them that made it above his Supreme Power and if by the direction of such law only he must Govern where is the Legislative Power which is the cheif of supreme Powers when the law must rule and govern the Monarch and not the Monarch the law he hath then at best but a gubernative or executive Power and so proceeds to quote this Authors own words at large if his Authority transcends his bounds and if it command
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
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
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the common-Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
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
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
may be mark him with the sharp Tooth of a Beast they call an Agoutye which is the disgracefullest punishment any man can suffer so that one of the main ends of a supreme power among us viz. to decide Controversies about Property and punish Thieves are there of no use And as for other Injuries such as Maims Adultery and the like they have no certain Judges for any of these things every man that is injured in any of these cases being his own Judge and Executioner observing that Law of an Eye for an Eye and a Tooth for a Tooth onely in Adultery the man hath power to kill both his Wife and the Adulterer if taken in the act and in Murder and great Hurts or Maims where the party injured is not able to revenge himself his neer Relations will not fail to do it and if they should omit they would be looked upon as Cowards or infamous so that being naturally loving to each other and having no words of disgrace to quarrel about and other Quarrels happening but seldom and no man maintaining or taking the part of the wrong-doer or revenging the death of a Murderer or Adulterer they have lived many Ages without any common Power to keep them at peace among themselves and yet they have much fewer Crimes committed amongst them than us It is true they have Captains or Cacicks among them but they have no power but in time of War and when the Expedition is ended though they pay them reverence and respect and make them preside in all their Councils and Assemblies yet they have no Authority in time of Peace to punish or question any man So that if they lived in Islands which were either far distant from others or else were inaccessible and would make no forein Expeditions they would not need so much as this Cacick and so could live together without any other Government than that of the Fathers of Families over their Wives and Children But perhaps it will be said these are Man-eaters and barbarous People and so are not to be quoted as Examples for the rest of mankind It is true the Brasilians eat their Enemies taken in War but the Caribbes do not But as for the Observation of the other Laws of Nature I will leave it to any man to judge which part of mankind observe them best those that can live peaceably together without either Judge or Gallows or we that can scarce be at quiet though we have them But I have done this onely to shew an intelligent Reader what are the true reasons of the necessity of a Civil Power amongst us that have a full propriety in all Lands and Goods by the particular Laws of our Countries Having now I hope dispatcht the first part of my intended Task which was to prove that the Author's Hypothesis concerning the Monarchical Despotick Power of Adam over his Wife Children or Descendants is altogether vain and without just grounds either from Scripture or Reason and consequently that neither any Fathers of Families nor the Princes as representing them can from divine Grant deduce any such absolute Power or Right over their Children or Subjects I shall not trouble my self with the answering of the rest of this Treatise having gone a good way in the second Chapter and answered his most material Objections about the Peoples conferring Soveraignty so that the rest is of small consequence I shall not need to examine whether the Jews chose the King or God since that Government being purely Theocratical it concerns other Nations not at all much less shall I vindicate the Form of the Roman Commonwealth or dispute whether they were more happy under Kings or Emperours or whether Democracies or Tyrannies are best or affirm that the People can correct their King or that there e're have been any Tyrants in England since the Conquest since they are all either foreign to this purpose or else signifie nothing when his foundations are pulled up As for what he says concerning a limited or mixt Monarchy I shall reserve all that is needful to be observed upon that subject until I come to consider the Author's Treatise called The Anarchy of a limited Monarchy where all or the greatest part of what he hath here written is there repeated As for â—his third Chapter since Divinity is not my Profession and that the Texts of S. S. he there quotes have been debated by so many Expositors both in English and Latine I count needless to repeat out of others what sense they may bear though I do not approve of the Author's interpretation who would have them applied alike to all Princes whether good or bad lawful or unlawful since upon those Principles there can be no difference between a just Prince and a Tyrant or between a lawful Monarch and an Usurper Nor shall I meddle with what he says concerning the Kings Power and Prerogative though I think there are divers things which he there says that are false and of very ill consequence yet since I confine my self purely to the Laws of Nature and Reason I shall leave it to other more able Pens and better skill'd in the Laws and Customs of this Kingdom to give him such an answer as they deserve Neither would I be thought to encourage Princes to stretch their Power to the utmost limits nor yet to stir up Subjects to take Arms as soon as ever they think themselves injured since the Populace is but too apt where they are left to be their own Judges to pronounce Sentence in ther own favour Therefore quitting all these as unnecessary Disputes I shall now proceed to take a short view of the rest of those Errors and Mistakes which remain yet to be observed in his other Miscellany-Treatises first published CHAP. III. I Desire the Reader in the first place to take notice that I wholly pass by the first Treatise called The Freeholders Grand Inquest since I confess my self no Lawyer verst enough in the learning of Records to answer him in his own way I shall therefore leave him to those that have made it their business And as for great part of it concerning the Antiquity and Power of the Commons in Parliament distinct from that of the Peers or Inheritable Nobility I shall refer the Reader to Mr. Petyts learned Treatise of the Rights of the Commons of England See likewise a late Treatise intituled Jani Anglorum facies nova written by a young Gentleman of great Learning and Ingenuity where all Objections against it are in my opinion fully answered Therefore I shall begin with his Observations upon Aristotle's Politicks which I shall not dwell long upon since I look upon that as one of the confusedest Pieces he hath written Nor is it my business as that great Author said once in the case of Plato to defend Aristotle but Truth I shall likewise pass by the Preface since it contains nothing considerable but his Hypothesis of Adam's Monarchy of which there needs
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
history and Laws of his Country but very well knows and that this opinion of Englands being a limited Monarchy is no new one but owned to be so by our Kings themselves We may appeal to the last words of Magna Charta it self Concessimus etiam eisdem pro nobis et haeredibus nostris quod nec nos nec haeredes nostri aliquid perquiremus per quod libertates in hac Charta contentae infringantur vel infirmentur Et si ab aliquo contra hoc aliquid perquisitum fuerit nihil valeat et pro nullo habeatur And this his late Majesty of blessed memory who best knew the extent of his own power says in his Declaration from New-market Martij 9. 1641. That the Law to be the measure of his power and if the Laws are the measure of it then his power is limited for what is a Measure but the bounds or limits of the thing measured So likewise in his Answer to both Houses concerning the Militia speaking of the men named by him If more power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by Law first vested in him with power to transfer it to those persons In which passage his Majesty plainly grants that the power of the Crown is limited by Law and that the King hath no other Prerogatives then are vested in him thereby Nor was this any new Doctrine or indicted by persons disaffected to Monarchy and which had but newly come off from the Parliament side by the apparent Justice of his late Majesties Cause as Mr. Hobs in his little Dialogue of the civil wars of England doth insinuate but was the opinion of the ancient Lawyers many hundred years ago Bracton who lived in the time of H. 2. writes thus Li. I. Cap. 8. Ipse autem Rex non debet esse sub homine sed sub Deo et Lege quia Lex facit Regem Attribuit igitur Rex Legi quod Lex attribuit Ei viz. dominationem et potentiam Non est enim Rex ubi dominatur voluntas et non Lex And Li. III Cap. 9. Rex est ubi bene Regit Tyrannus dum populum sibi creditum violenta opprimit dominatione quod hoc sanxit lex humana quod leges ligent suum Laterem if this be law we have a Tyrant as well described as by any difinition in Aristotle Also that the King alone cannot make a Law Li. I. Cap. 1. So likewise the Lord Chancellour Fortescue in his excellent treatise de laudibus Legum Angliae dedicated to Prince Edward only Son to Henry the VI. and certainly writing to him whom it most concerned to know those Prerogatives he might one day enjoy he would not make them less than really they were Cap. 9. He instructs the Prince thus non potest Rex Angliae ad libitum suum mutare Leges Regni sui Principatu namque nedum regali sed et politico ipse suo Populo dominatur Populus enim iis Legibus gubernatur quas ipse fert cum Legis vigorem habeat quicquid de consilio et de consensu Magnatum et Reipublicae communi sponsione authoritate Regis sive Principis praecedente juste fuerit difinitum et approbatum And the Parliament Rol. 18. E. 1. num 41. quoted in Lord Cook 's Inst 4. pt acknowledges the same Homines de Cheshire qui onerati sunt de servientibns Pacis sustentandis petunt exonerari de oneribus Statuti Winton ' c. The Kings Answer was Rex non habet consilium mutandi consuetudines nec statuta revocandi So likewise Cap. 18. speaking of the Laws of England non enim emanant illa à Principis solùm voluntate ut Leges in Regnis quae tantum regaliter gubernantur ubi quandoque statuta ita constituentis procurant commoditatem singularem quod in ejus subditorâ—m ipsum redundant dispendium et jaciuram sed concito reformari possunt dum non sine Communitatis et Procerum regni illius assensu primitus emanarunt so Cap. 13. Et ut non potest caput corperis Physici nervos suos commutare neque membris suis proprias vires et propria sanguinis alimenta denegare nec Rex qui caput est corporis Politici mutare potest Leges corporis illius nec ejusdem Populi substantias proprias substrabere reclamantibus iis an invitis And concludes thus habes jam Princeps institutionis politici Regni formam quam Rex ejus in Leges ipsius aut subditos valeat exercere ad rutelam namque legis subditorum ac eorum corporum et bonorum Rex hujusmodi erectus est et ad hanc potestatem a Populo effluxam ipse habet quo ei non liceat potestate alia suo Populo dominari I had not been so large on a Subject which is so known and evident and which no sober man will deny were it not for two reasons the first is to satisfy Divines and men of other professions who have not leasure to read old Law Books and perhaps may lye under some doubts what the true form of Government of this Kingdom hath ever been and in the next place to confute the Author's Cavil and other mens of his way to the contrary Authority being the best Judge in this Case as Diogenes confuted Zenos's Arguments against motion not by disputeing but walking So now whether the Treatise this Author writes against be but a Platonick Monarchy or a better piece of Poetry than Policy I will not dispute but this much I think I may safely affirm that the Government he describes is not a Creature to be found God be thanked on English ground and for those that so much admire it let them go find it by the banks of Nilus or Ganges where the Sun that late Emblem of universal Monarchy is so indulgent to the Creatures he produces that those which he cannot make grow here beyond an Eut or Adder are there made Crocodiles and Serpents that devour a man at a bit So that if you should stile them the representatives of the Monarchs of those Climates Travellers will say you do not wrong them I shall now proceed to answer the most material Objection of this Authors and not imitate him who in this Treatise passes by all the Arguments which Mr. H. brings to prove that this is no absolute despotick but at least a limited Monarchy as silently as Commentators do hard places that puzle them Let us therefore look back to his Patriarcha where he gives us a distinction of the School-men ' whereby they subject Kings to the directive but not to the coactive power of Laws and is a confession that Kings are not bound by the positive Laws of any Nation Since the compulsory power of Laws of that which properly makes Laws to be Laws by binding men by rewards and punishments to obedience whereas the direction of the Law
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
that he had no more understanding But it would be our Crime and we alone were punishable if we should obey such a Command and it is only upon this supposition whether the sufficiency of the Protection of our Laws and the integrity of the Judges declared in the 14th of his now Majesties Reign by the Act concerning the Militia be full that it is a Traiterous Position that Arms may be taken by his Majesties Authority against his Person or against those Commissioned by him in persuance of Military Commissions Because they suppose the King will not make use of the Militia for the destruction but the preservation of the Subjects just Rights and because all Officers of the Army or Militia are at their Peril to take notice whether their Orders are according to Law or not For they put it thus though to take free Quarter or to hang a man by Martial-Law in time of War be lawful yet to do so in time of Peace though in the Kings Name is Robbery and Murder And of this Opinion is that antient Book called the Mirror of Justices Chap. 1. Sect. 10. De Larcine En cest Peche viz. Robbery chiont tonts ceux que pernont le' autrun per l' Authorite del Roy en le' autre Grand Seigneur sans le gree de ceux aux queux les biens sont Into this Crime viz. Robbery all those do fall who take the Goods of another by the Authority of the King or any other great Lord without their Consent ' Nor I dare fay will any honest well meaning Subject be discontented if in case of extream necessity or some sudden danger the King should somewhat exceed his Prerogative for the defence of the Kingdom further then the Law will allow Since in matters of private concern a Man will not be angry with his Agent or Factor whom he hatâ—â—mpowered to look after his Business in another Countrey if the Agent perceiving the person for whom he is intrusted does not understand how his concerns in that place stand and that the Affair will not permit him to send again for farther Orders if he act contrary to his first Instructions since if he did not his Friends or Masters business would be lost Much more in the case of a King who besides the peoples concerns with which he is intrusted hath likewise his own Crown and Dignity at Stake So likewise a King will easily pardon a Subject who upon a sudden Insurrection or Invasion raises Forces and marches against the Enemy without staying for a Commission and when a Prince hath so well satisfied his Subjects that he never intends to make use of this Prerogative but for the good and preservation of his people he may do almost what he pleases and no body will be concerned And this made Queen Elizabeth meet with that great Affection and Confidence that she did throughout her whole Reign for though she sometimes exercised as high Acts of Prerogative as some of her Predecessors yet she had the good luck to have scarce any of them questioned in Parliament because the whole Nation was satisfied she acted for the best and sought no other end but the publick good and safety of the Kingdom Which had she permitted Spain to have swallowed up France and the Low-Countries it would have been a hard task to perswade them But Mr. H. proceeds in the same Paragraph and supposes that redressment by Petition failing that is that the Judges either do not or will not act according to their Oathes then if the Exorbitancy ' or transgression be mortal to the Government prevention by resistance ought to be and if it be apparent and appeal be made to the Consciences of Mankind then the Fundamental Laws of that Monarchy must judg and pronounce sentence in every mans Conscience and every man so far as concerns him must follow the Evidence of Truth in his own Sense to oppose or not oppose according as he can in Conscience acquit or Condemn the Act of the Governour or Monarch This our Author finds fault with ' First concerning the laying open of illegal Commands he will have Mr. H's meaning to be that each private Man in his peculiar case should make a publick Remonstrance to the World of the illegal Acts of the Monarch and then if upon his Petition he cannot be relieved according to his Desire he ought to make Resistance Whereupon the Author would know who can be Judg whether the illegality be made sufficiently apparent It is a main point since every man is prone to flatter himself in his own cause and to think it good and that the wrong or injustice he suffers is apparent when moderate and indifferent men can discover no such thing and in this case the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erronious In which Annimadversion of our Author he first lays that to Mr. H's Charge which he does no where affirm that every particular Subject when injured should make a publick remonstrance to the people but only lay it open to the Monarch or his Judges that represent him by Petition And sure there is a great deal of difference between a Petition and a Remonstrance He does not say that every single Subject failing of Redress by Petition ought to make resistance in his own case for he before supposes the Exorbitant Act or Transgression not to be Mortal such as suffered dissolves the Frame of the Government and publick Liberty And that in such lighter cases for the publick Peace we ought to submit and make no resistance at all but de jure cedere which can never fall out as long as this Transgression or Exorbitance extends it self only to some particular men 2. Our Author will have no particular man to be Judg in his own Cause I grant it if by Judg he means Execution too by publick resistance Otherwise a mans passing his judgment or declaring it that he thinks himself injured suppose by a Decree in Chancery or Act of Parliament does not disturb the Goverment or publick Peace But he may if he please bring his Appeal or a new Bill in Parliament and have the unjust Decree or Act reversed which he can never do if he did believe he ought not to make the injustice or illegality of this Act or Decree apparent to those that are to give him redress but if this Exorbitant Act or Transgression be general and presses upon all alike I deny that the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erroneous For suppose the illegal Act were so publickly declared that for the future all Taxes should be raised without consent of Parliament or that all menshould be tried for their Lives without Juries I would fain know whether the Judgment not only of the Commonalty but of all
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
Anno 125. But to return to our Author from whom I have a little degressed I think he is mistaken in affirming all Power which enables in some cases a Man to resist or oppose his Governors must be Authoritative and Civil Therefore I shall put the same case again which I did about the beginning of these Observations concerning the Natural Power of Fathers Suppose a Son cannot otherwise preserve his own Life or that of his Mother or Brothers from the rage of his mad or drunken Father but by holding him or binding him if need be I suppose no reasonable Man will deny the lawfullness of this action and yet this Power over his Fathers Person is not Authoritative or Civil but Moral and which the Son does exercise not as Superior to his Father but as a Rational Creature obliged by the Laws of Nature to preserve his own being and to endeavour the good preservation of his Parents and Relations not against Paternal Authority which is always Rational and for the good of the Family but Brutish Irrational force Which God gives every Man a right to judg of so likewise if a Prince prove either a Madman or a stark Fool the power which their Subjects exercise in the ordering him or confining him and appointing Regents or Protectors to Govern for him and in his Name is not Authoritative or Civil since the Prince himself who is the Fountain of all Authority gave them no such power and therefore must be Natural or Moral or residing in them as reasonable Creatures And of this we have had divers examples Thus the French were forced to confine their Mad King Charles VI. and appoint his Queen to be Regent during his Distraction So likewise Joan Queen of Castile falling Distracted upon the Death of Her Husband King Philip I. Her Father Ferdinand governed in Her right and after His decease Her Son Charles afterwards Emperor she continuing bereft of her understanding was admitted King of Castile And what hath been done lately in Portugal is so notorious that it needs not a particular Recital So then Mr. Hs. expression That this is a Moral Judgment residing in reasonable Creatures and lawful for them to execute may not seem so absurd as to imply what our Author endeavours to draw from thence that Authoritative and Civil Judgment does not reside in reasonable Creatures nor can be Lawfully executed since a Reasonable Creature may be endued with another Power of acting precedent to that of the Civil So I shall likewise leave it to the Judgment of the impartial Reader whether this conclusion fits so well with Anarchy as the Author will have it As also whether Mr. H. take away all Government by leaving every Man to his own Conscience to judg when the Prince oppresses him for else how could he sue for relief to the Prince himself and so all actions a Prince did or commanded would be just and lawful though never so contrary to Reason or positive Law And so there would be truly as Mr. Hobs asserts no other measure of good and evil right or wrong but the Princes will But as I have no where maintained with Mr. H. in his Treatise which our Author writes against that ours is a mixt Monarchy though limited by Law and therefore shall not maintain as he does the King to be one of the Three Estates according to the Opinions held during the late Wars So on the other side that there is and ever hath been such a Government as a mixt Monarchy in some Countreys I hope I have made out notwithstanding what this Author says to the contrary and that these might more properly be called a mixt Monarchy then mixt Aristocracy or mixt Democracy Since all Governments of this kind take their denomination from the most Honourable and Predominant part in it in whom the Executive or Authoritative part resides And though perhaps some of these Governments may not seem so firm so regular and well constituted as others it does not therefore follow that they are meer Anarchies or that all mixtures and limitations of Monarchy are vain or unlawful as our Author imagines For a further proof of which I will not give you may own sence alone but likewise of that eminent Civil Lawyer Mr. Pufendorf now or very lately Gretian Professor in the University of Vpsal in his excellent work De Jure Naturae Gentium Dedicated to Charles the 10th now King of Sweden and certainly holding a place of such profit and Credit in his Dominions he would be too prudent to speak any thing prejudicial to Monarchy or contrary to the Government of Sweden in particular But to return to the matter in the above-mentioned Treatise which for the benefit of those that cannot easily procure the Latine Original Lib. 7. Cap. 5. where speaking before of the several kinds of mixt Governments or Common-wealths § 14. He expresses himself to this purpose as near as I can Translate it Yet however as I will not envy the commendation of constancy in any that will obstinately maintain the name of a mixt Common-wealth to those sorts of Government he had before recited So it seems to us more ready and easie for the demonstrating divers Phaenomena in certain Common-wealths if we rather call those irregular Common-wealths in which neither one alone of the three irregular Forms is found neither an absolute Disease or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 takes place and which yet cannot be strictly referred to distinct confederate States Concerning which it is generally to be observed that they depart in this from a regular Common-wealth whilst in them all things do not seem to proceed as it were from one Soul and will neither to be governed by one Common Authority Yet they diffor from the confederate State in that they are not compounded of distinct and perfect Common-wealths as these are Yet they are far from those things that they count Diseases in a Common-wealth because a Disease that always carries with it as it were a shameful and unallowable pretence since it proceeds from â—he evil administration of a good Form of Government or from Laws and Institutions ill contrived and put together Whereas this irregularity does not only intrinsically affect the very Form it self but also being publickly and lawfully establish'd dares shew it self openly and without shame So that a Disease ought to be supposed as not intended by those who first Instituted this Common-wealth since the irregularity arose or was Confirmed from the will or approbation of those of whom the Government was at first Constituted as a building is one thing whose design agrees with the Rules of Architectture but either its materials are naught or else thorough the carelesness of the Dwellers the Roof gapes and the Walls are ready to fall and another thing where a Model though differing from the common Rules of Building is dedesigned by the Owner or Architect himself Lastly some of these irregularities may have continued from the
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