rate his power now encreases but that he may be so he threaten to cut their Banks and let in the Sea to drown them and their Country if they will not yeild it up to him may they not if they find they cannot resist him submit themselves to him and make the best terms they can for themselves and are they not then obliged by the Authors own Principles to continue his Subjects and yet here is no actual War or inundation but threats only to force them to this submission So that the Authors Supposition is false that no case can happen but an actual War only which can reduce a People to such terms of extremity as to compell them to an absolute abnunciation of all Soveraignity and so likewise is this consequence also which he assumes from thence then war which causeth that necessity is the prime means of extorting such Soveraignity and not the free gift of the People who cannot otherwise chuse but give away that Power which they cannot keep for they might either leave their Country or bury themselves in it But it seems the Author had forgot his Logick or else he would have remembred to distinguish between Causa sine qua non and Causa efficiens a cause which does not properly give being to a thing and yet without which it could not have been produced Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner yet the true Cause of his becoming a lawful Servant to his taker does not proceed from his conquering him but from his coming to Terms with him that he shall be dismist of his Fetters or Imprisonment upon Condition he will serve faithfully and not run away and all Moralists consider those actions they call mixt as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones though they commenced from some kind of force since in this case the Merchant might if he pleased keep his goods if he would venture his life So in many cases may a Conquered People if they have never neither by themselves or their representatives owned the Conquerer But as much as the Author quarrells at the word usufructuary Right in Grotius as too base to express the Right of Kings and as derogatory to the dignity of Supreme Majesty yet the the French are not so scruplous but in the absolutest Monarchy of Europe plainly declare that their King hath but an usufructuary right to his Kingdom and the Territories belonging thereunto or that he can any way charge them with his debts or alienate or dispose of them without the consent of the States of France See Mezeray in the reign of this King 1527. and was so solâ—mnly declared by that great Assemby des notables called by K. Francis the First to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid their sense was that Burgundy which by those Articles was to be delivered up was an inseparable Member of the Crown of which he was but the usufructuary and so could not dispose of the one any more than of the other nor was this any new opinion but as old as St. Lewis who being desired by the Emperour Frederic III. to restore the King of England his just Rights To which the said King replyed whose words I will faithfully translate as they are in Matthew Paris p. 765. Anno Dom. 1249. By the holy Cross with which I am signed I would willingly do it if my Counsel i. e. the Estates would permit it because I love the King of England as my Cosen but it were hard at this very instant of my Pilgrimage viz. for the holy land to disturb the whole body of my Kingdom by contradicting the Counsels of my Mother and all my Nobles although the Intercessors are very dear to me neither is this to make a Kingdom all one with a Ferm as the Author words it since in the civil Law it signifies not only one that barely receives the rents or profits but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner though he have not power to sell or give it away Nor I suppose will any French or English Subject unless such bigotted ones as the Author acknowledge any Forraign Prince or other Person can obtain an absolute Dominion over them by Conquest I am sure they were not of that opinion between two hundred and three hundred years agoe when the King of England brought a plausible Title into France and had it backt by almost an entire Conquest of the whole Kingdom and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris and yet after all this the French had so little Conscience as to proclame Charles the Dauphin King of France and to drive the English out of the Country and renounce their allegiance which they had sworn to our Kings Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary P. 69. to bestow Supreme power in succession But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown let us see the consequences of this Doctrine For the Crown must be of England in the nature of an absolute Fee Simple and is consequently chargeable by any act or alienable by the Testament of the King in being So that then King John had Power to make this Kingdom feudatary and tributory to the Pope and so the Pope hath still a good Title to it And since Religion with these Gentlemen diminishes nothing from the right and absoluteness of Monarchy the same King might have made over his Kingdom to the Emperor of Moroco as the Historians of those times relate he would and so the Sarracen Prince might have entred upon the non-performance of the Conditions and have turned out his Vassal and been King here himself which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms let any man consult Matthew Paris and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate Anno 1216. P. 280. that no King could give away his Kingdom without the consent of his Barons who are obliged to defend it and all the Nobility there present began to cry out at once that they would assert this Priviledge till death That no King or Brince could by his sole Will give away his Kingdom or make it tributary by which the Nobles of the Kingdom might become Slaves Nor did the English Nobility think otherwise since this was one of the causes of their taking Arms against King John Matt. Paris 1245. p. 659. 666. and afterwards in his
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
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
observe a Law Note the Antiquity of of this excellent Law whereby they oblige their Judges by Oath that if the King require an unjust Sentence from them they should refuse him And in the same place it is noted that Antigonus 3. writ to his Cities that if by his Letter he should command anything contrary to his Laws they should not obey it but should think he failed thorough ignorance or misinformation and oftentimes importunate Requests are cluded this way whilst the Prince seems for quietness sake content to grant what he knows will be made void by this Senate or Court of Parliament As it hath been often in France yet when the King is resolved that his Will shall hold good and looks upon the contrary Reasons of this Parliament as not weighty enough to convince him it cannot then any longer contradict the Kings Will for it is not presumed that the King by constituting such a Court would irrevocably abdicate his Right of absolute power So that this Senate or Parliament hath indeed but a Derivative power from the King to be limited as he himself shall please although perhaps he will not exert this power but upon weighty considerations nor does this Court make the power of the King less than absolute since it only gives him occasion to review his own Acts and as it were Appeals from himself when surprised with Passions Prejudices or misinformation to himself in a more indifferent and considerate Temper The like may be said of the Assembly of Estates if they meet only for this purpose that they should be the Kings greatest Council by which the Requests and complaints of his People which often times are concealed in his private Council may come to the Kings ears who is then left free to Enact what he thinks expedient Vid. Gro. Li. 1. c. 3. § 10. But a Kingdom is truely limited when the Subjects at first conferred it on the King on this condition that he should assemble the Estates concerning some Acts without whose consent this Decree should not be valid yet it ought to be in the Kings power to call and dissolve this Assembly and to propose the business to be dispatcht therein unless we should go about to set up an irregular Common-wealth and leave the King no more than an empty Title but if these States being so convocated do of their own accord Propose those things which they conceive conducing to the good and safety of the Kingdom yet the Decrees or Acts constituted concerning them take their force from the Kings passing them Yet such an assembly of Estates do differ from Counsellors properly taken in this that although both of them can only move the King by reason only yet the King may very well reject the Reasons of these latter but not of the former neither ought the King to think himself contemned if these Estates do not consent to some things of his proposing For as he promised at first to have always before his Eyes the good of the Common-wealth of which a great many choice men are supposed to Judg more certainly than one A King may most commonly blame his own imprudence Passions or ill Fortune if the States happen to differ from him from whence it likewise appears that their fear is vain who think that by this means it is at the disposal of the Estates whether the Common-wealth shall be safe or not For it can scarcely be supposed that the King should be so negligent as to omit laying open to his Estates the necessities of the Kingdom or that the Estates being fully satisfied of them will ever go about to betray their own safety But this is certain since those who have conferred the limited power cannot be presumed either to intend to destroy or dissolve the Common-wealth or by their confederacy to order things so that the end of all Common-wealths cannot be obtained in it therefore there ought to be that favourable interpretation made of those Conventions that they really desire the common safety and would by no means do any thing contrary thereunto so likewise in making this compact that whatsoever they have so agreed to they are still to be supposed to have that intention that nothing should be done by reason of those conditions or parts which should prejudice the common safety and publick utility or whereby the Convulsion or Dissolution of the Common-wealth might follow But if such a chance should happen it would be most convenient that if the affair will allow of delay it should be proposed in the Assembly of Estates but where this cannot be done it may be the Kings Duty dexterously to correct those complaints that may break out to the destruction of the Common-wealth which also is of the the same force in respect of publick Laws Pint. in the Life of Agesilaus which the safety of the people and the supream Law commands sometimes to be silent As Agesilaus commanded the Laws of Licurgus to sleep for one day that those might return without ignominy that had fled at the Battel of Levetra However Mr. Hobs will allow no distinction between limited power and absolute but will have all supreme power to be absolute when it is to be observed that in all those assertions which are too rudely laid down by him there is a restriction to be added from the and of all Common-wealths as in what he lays down in his de Cive cap. 5. § 6. that he to whom in a Common-wealth there belongs the right of punishing can by right compel all to all things he pleases or as he expresses this limitation in the same place which are necessary for the common peace and safety and Cap. 6. § 13. when by the right of the supreme Governour he says there is connected so great an obedience of all the Subjects as is requisite for the Government of the Common-wealth so when in the place aforegoing he saith who ever hath so subjected his own will 'to that of the Prince that he may do whatever he pleases without punishment as also make Laws Judg differences punish whom he pleases use the strength power of all men according to his own will perform all these things by the highest right he hath then granted him the greatest power which can be granted But it is now to be considered by what intention or on what grounds men were moved to institute Common-wealths from whence it is clear that no body is understood to have conferred more power by his Will upon the Monarch then a reasonable man can judg necessary to that end and that although the ordering what may conduce to this end in this or that occasion does not remain in those that have transferred their power but in him on whom that power is transferred therefore the supream Ruler can compel the Subjects to all those things which are really condusing to the good of the Common-wealth but he ought not to go about to compel them to
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
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
those things that are contrary to the safety of the Common-wealth or against the Laws of Nature And if he endeavours any such thing without doubt he transgresses the bounds of his power Let us also consider the Arguments by which the same Author in his De Cive Cap. 6 § 17. endeavours to prove that all limitation of Soveraign power is absolutely vain he says that assembly which prescribed the Laws to the future King must have had absolute power either habitually or vertually If the Assembly remains constantly or adjourns their Meeting from Time to Time to a certain day and place their power will be perpetual and so the King will not have the Supream power but will be only a bare Magistrate Which we grant to be true if that Assembly can meet by its own Right and Decree of any Affairs of the Common-wealth and that the King be liable to give them an Account of his Actions But if it absolutely dissolve it self unless the Commonwealth be likewise dissolved there must in like manner a power be left somewhere of punishing those that transgress the Laws which without absolute power cannot be performed Which is false as also the Argument by which he would prove it for he who hath granted him by Right so much power that he can compel any of the Subjects by punishments hath so great power that greater cannot be conferred by them But for all this whoever will but consider the end of all Common-wealths and that those Subjects by the submission of their Wills and powers did not immediately become senceless Machines so that since they could grant the use of their united Forces to another upon condition and are able to judg whether this condition be performâ—d or not so they can likewise withdraw their Forces again upon the breach of the condition as likewise this is apparently false that there is no better provision against the abuse of Authority when it is granted limited then when it is left absolute for it is not who that he who hath power enough to defend all Men. which all that are not Fools will easily grant their Prince as also power enough to destroy them The Commands of a General which are sufficient to make the Souldiers stout to venture their Lives against an Enemy yet would be found of no force if he should command them to draw their Swords against each other So that prudent and worthy Princes though absolute will comply with the Genins of their Subjects and â—…t-times will be sparing to urge them too far though for their own advantage when they cannot be compelled to their Duty without some hazard to the Common-wealth But those Subjects are not less discreet who when they are satisfied what is not expedient for their Common-wealth have provided by Fundamental Laws that they should not be compelled to it by their Princes power So far speaks the judicious Mr. Pusendorf upon this Subject which though somewhat prolix I have thought fit to translate verbation because I would not be thought by going about to contract it to put my own sence upon his words and besides I know no man that hath writ more clearly of this Subject in avoiding on one side an absolute despotick Monarchy without falling into that Solacism in Politicks the division of the supreme power which he supposes truly inconsistant with Monarchy So that if the Reader is not satisfied with what I have here writ upon this Subject I am sorry his understanding and mine are not framed alike nor shall be angry with him if he like an absolute Monarchy better then that we live under Provided he will never Act any thing to produce publick disturbances or to introduce it either by force or fraud in this Kingdom Yet shall wish him no greater Prerogative then that of enjoying his own opinion without imposing it upon others who are not yet weary of their Estates and Liberties which since the People of this Nation are not yet weary of The World is wide enough and there are Countries where this which they admire as the primitive Government of the World and that which they perhaps Reverence as the Primitive Religion is practised in its full splendor and indeed are most suitable to each other All the hurt I wish those Gentlemen that they were all setled in any of them even which they like best Whilst all plain hearted English-men notwithstanding such subtile discourses as thofe of our Author are resolved to return the same Answer to them as the Temporal Lords did to the Bishops long since upon another occasion Nolumus Leges Angliae mutari of which I hope there is as little fear as there is or ever will be just occasion for it And so I shall quit my hands of this ungrateful task without troubling my self with his Discourse of Witches Since his other writings sufficiently assure us that whatever he was in other Learning he was no Witch in Politicks though he had Read Aristotle might perhaps be better read in the Fathers and Schoolmen or Civil-Law than in the Laws of Nature or those of his own Countrey FINIS ERRATA PReface Page 2. l. 14. dele not l. 18. hy r. by p. 5. r. despise observe p. 8. l. 32. compore r. compare the p. 15. l. 30. of Fathers r. of a Father l. 31. more true r. more certain l. 36. to r. thereto l. 37. dele without the help and assistance of others p. 24. l. 24. should make r. should have l. 26. in r. or in p. 29. l. 16. dele fourth p. 32. l. 33. d. not p. 37. l. 33. for excellent Pufendorf r. Mr. Pufendorf a late judicious Writer p. 40. l. 17 d. often p. 42. l 20. d. of p. 43. l. 17. ought quit r. ought to puit p. 44. l. 10. for a priviledg r. a liberty l. 21. and if r. for if l. ead have such r. have only such l. 31. fatherly r. or fatherly p. 37. 57. l. 28. puzzle r. distract p. 67. l. 14. require r. acquire l. 32. as I r. and p. 70. l. 13. d. perhaps p. 72. l. 25. d. goods p. 74. l. 5. or at their own dispose include within a Parenthesis p. 77. l. 8. upon r. upon them p. 83. l. 8. on r. than l. 31. r. without any stop after legat l. 32. owe his r. owe its p. 86. l. 32. the r. those l. 35. change r. charge p. 87. l. 29. it is r. they are p. 88. l. 20. his r. this p. 89. l. 6. consting r. consisting p. 90. l. 26. r. representative and d. body p. 92. l. 34. many r. so many p. 93. l. 7. but of r. but part of l. 13. d. from p. 95. l. 16. for an r. but an l. 24. d. hatred p. 99. l. 7. both of d. both p. 102. l. 3. at mans r. a mans p. 107. l. 20. Laws d. s ead l. 1. d. Custome p. 112. l. 32. r. misuse him p. 113. l. 25. most r. many p. 117. l. 30. all