and the Bishop of Rochester were restored to the Possession of Detling and other Lands which Odo had withholden There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regià potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another w ch had quosque regni Proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northamptonshire Episcopis Abbatibus cunctisque regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his 3 d. year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigorniensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22 Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Arch-bishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovenden saith that the same King at Windsor apud Windeshores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in his 21 Year a Parliament at Windsor of Bishops Earls and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons This Parliament lasted but four days yet much was done in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolph of the Castle and Sherifwick of York The second day he required Judgment against his Brother John who was afterwards King and Hugh de Novant Bishop of Coventry The third day was granted to the King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fee for his Attendance into Normandy and all the Wool that year of the Monks Cisteaux which for that it was grievous and unsupportable they sine for Money The last day was for Hearing of Grievances and so the Parliament brake up And the same year held another at Northampton of the Nobles of the Realm King John in his fifth year He and his Great men met Rex Magnates convenerunt and the Roll of that year hath Commune Concilium Baronum Meorum the Common Councel of my Barons at Winchester In the sixth year of King Henry 3. the Nobles granted to the King of every Knights Fee two Marks in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20 H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Vsury should not run against a Ward from the Death of his Ancestor 21 Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the King's Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Matt. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22 Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdom 32 Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Matt. Westm ' 49 Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom Matt. Westminster At a Parliament at Marlborough 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in this Kings time is worth the observing and the rather for that it is much insisted on of late to make for Parliaments being above the King The words in Bracton are The King hath a Superiour God also the Law by which he is made King also his Court viz. the Earls and Barons The Court that was said in those days to be above the King was a Court of Earls and Barons not a word of the Commons or the representative Body of the Kingdom being any part of the Superiour Court Now for the true Sense of Bractons words how the Law and the Court of Earls and Barons are the Kings Superiours they must of Necessity be understood to be Superiours so far only as to advise and direct the King out of his own Grace and Good Will only which appears plainly by the Words of Bracton himself where speaking of the King he resolves thus Nec potest ei necessitatem aliquis imponere quod injuriam suam corrigat emendat cum superiorem non habeat nisi Deum satis ei erat ad poenam quod Dominum expectat ultorem Nor can any man put a necessity upon him to correct and amend his Injury unless he will himself since he hath no Superiour but God it will be sufficient Punishment for him to expect the Lord an Avenger Here the same man who speaking according to some mens Opinion saith the Law and Court of Earls and Barons are superiour to the King in this place tells us himself the King hath no Superiour but God the Difference is easily reconciled according to the Distinction of the School-men the King is free from the Coactive Power of Laws or Counsellors but may be subject to their Directive Power according to his own Will
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
belong to one Kingdom and what to another it follows that the original freedom of mankind being supposed every man is at liberty to be of what Kingdom he please and so every petty company hath a Right to make a Kingdom by it self and not only every City but every Village and every Family nay and every particular man a liberty to chuse himself to be his own King if he please and he were a madman that being by nature free would chuse any man but himself to be his own Governour Thus to avoid the having but of one King of the whole world we shall run into a liberty of having as many Kings as there be men in the world which upon the matter is to have no King at all but to leave all men to their natural liberty which is the mischief the Pleaders for natural liberty do pretend they would most avoid But if neither the whole people of the world nor the whole people of any part of the world be meant but only the major part or some other part of a part of the world yet still the objection will be the stronger For besides that nature hath made no partition of the world or of the people into distinct Kingdoms and that without an universal consent at one and the same instant no partition can be made yet if it were lawful for particular parts of the world by consent to chuse their Kings nevertheless their elections would bind none to subjection but only such as consented for the major part never binds but where men at first either agree to be so bound or where a higher power so commands Now there being no higher power than nature but God himself where neither nature nor God appoints the major part to bind there consent is not binding to any but only to themselves who consent Yet for the present to gratifie them so far as to admit that either by nature or by a general consent of all mankind the world at first was divided into particular Kingdoms and the major part of the people of each Kingdom assembled allowed to chuse their King yet it cannot truly be said that ever the whole people or the major part or indeed any considerable part of the whole people of any Nation ever assembled to any such purpose For except by some secret miraculous instinct they should all meet at one time and place what one man or company of men less than the whole people hath power to appoint either time or place of elections where all be alike free by nature and without a lawful summons it is most unjust to bind those that be absent The whole People cannot summon it self one man is sick another is lame a third is aged and a fourth is under age of discretion all these at some time or other or at some place or other might be able to meet if they might chuse their own time and place as men naturally free should In Assemblies that are by humane politique constitution the superior power that ordains such assemblies can regulate and confine them both for time place persons and other circumstances but where there is an equality by nature there can be no superior power there every Infant at the hour it is born in hath a like interest with the greatest and wisest man in the World Mankind is like the sea ever ebbing or flowing every minute one is born another dies those that are the People this minute are not the People the next minute in every instant and point of time there is a variation no one time can be indifferent for all mankind to assemble it cannot but be mischievous always at the least to all Infants and others under age of discretion not to speak of Women especially Virgins who by birth have as much natural freedom as any other and therefore ought not to lose their liberty without their own consent But in part to salve this it will be said that Infants and Children may be concluded by the votes of their Parents This remedy may cure some part of the mischief but it destroys the whole cause and at last stumbles upon the true original of Government For if it be allowed that the acts of Parents bind the Children then farewel the Doctrine of the natural freedom of mankind where Subjection of Children to Parents is natural there can be no natural freedom If any reply that not all Children shall be bound by their Parents consent but only those that are under age It must be considered that in nature there is no nonage if a man be not born free she doth not assign him any other time when he shall attain his freedom or if she did then Children attaining that age should be discharged of their Parents contract So that in conclusion if it be imagined that the People were ever but once free from Subjection by nature it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever without apparent wrong to a multitude of People It is further observable that ordinarily Children and Servants are far a greater number than Parents and Masters and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject unto is most unnatural and in effect to give the Children the government over their Parents To all this it may be opposed What need dispute how a People can chuse a King since there be multitude of examples that Kings have been and are now adays chosen by their People The answer is 1. The question is not of the fact but of the right whether it have been done by a natural or by an usurped right 2. Many Kings are and have been chosen by some small part of a people but by the whole or major part of a Kingdom not any at all Most have been elected by the Nobility Great men and Princes of the blood as in Poland Denmark and in Sweden not by any collective or representative body of any Nation sometimes a factious or seditious City or a mutinous Army hath set up a King but none of all those could ever prove they had Right or just title either by Nature or any otherwise for such elections We may resolve upon these two propositions 1. That the people have no power or right of themselves to chuse Kings 2. If they had any such right it is not possible for them any way lawfully to exercise it You will say There must necessarily be a right in some body to elect in case a King die without an Heir I answer No King can die without an Heir as long as there is any one man living in the world It may be the Heir may be unknown to the people but that is no fault in nature but the negligence or ignorance of those whom it concerns But if a King could die without an Heir yet the Kingly power in that case shall not escheat to
OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT As Described Viz. 1 st Upon Aristotles Politiques 2 d. Mr. Hobbs's Laviathan 3 d. Mr. Milton against Salmatius 4 th Hugo Grotius de Jure Bello 5 th Mr. Hunton's Treatise of Monarchy or the Nature of a limited or mixed Monarchy By the Learned Sir R. Filmer Barronet To which is added the Power of Kings With directions for Obedience to Government in Dangerous and Doubtful Times LONDON Printed for R. R. C. and are to be Sold by Thomas Axe at the Blew-Ball in Ducâ—-Lane 1696. Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1. The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Vnderstanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a Touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Council the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Vsage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty days before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and only such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellor tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Council there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Council to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore-rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall be first transmitted hither under the Great Seal of that Kingdom and having received Allowance and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Vsage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader Rob. Filmer A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER Knight I. The Free-holders Grand Inquest touching our Soveraign Lord the King and his Parliament To which are added Observations upon Forms of Government Together with Directions for Obedience
case you or any other Sheriff of our said Kingdom shall be elected And at the Day and Place aforesaid the said Election made in the full County-Court you shall certifie without Delay to Us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto Us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our Self at Westmin By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom or of the Supream Court of Judicature or to have any part of the Legislative Power or to Consult de arduis regni negotiis of the Difficult Businesses of the Kingdom The Writ only says the King would have Conference and Treat with the Prelates Great men and Peers but not a Word of Treating or Conference with the Commons The House of Commons which doth not minister an Oath nor fine nor imprison any but their own Members and that but of late in some Cases cannot properly be said to be a Court at all much less to be a part of the Supream Court or highest Judicature of the Kingdom The constant Custom even to this day for the Members of the House of Commons to stand bare with their Hats in their Hands in the Presence of the Lords while the Lords sit covered at all Conferences is a visible Argument that the Lords and Commons are not fellow-Commissioners or fellow-Counsellors of the Kingdom The Duty of Knights Citizens and Burgesses mentioned in the Writ is only ad Faciendum Consentiendum to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom there is not so much mentioned in the Writ as a Power in the Commons to dissent When a man is bound to appear in a Court of Justice the words are ad Faciendum Recipiendum quod ei per curiam injungetur which shews that this Word Faciendum is used as a Term in Law to signifie to give Obedience For this we meet with a Precedent even as ancient as the Parliament-Writ it self and it is concerning Proceedings in Parliament 33 Ed. 1. Dominus Rex mandavit vicecom ' quod c. summon ' Nicolaum de Segrave ex parte Domini Regis firmiter ei injungeret quod esset coram Domino Rege in proximo Parl. c. ad audiendum voluntatem ipsius Domini Regis c. Et ad faciendum recipiendum ulterius quod curia Domini Regis consideraret in Praemissis Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before our Lord the King in the next Parliament to hear the Will of the Lord our King himself and to perform and receive what the Kings Court shall further consider of the Premises Sir Edw. Coke to prove the Clergy hath no Voice in Parliament saith that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm If this Argument of his be good it will deny also Voices to the Commons in Parliament for in their Writ are the self-same Words viz. to consent to such things as were ordained by the Common Councel of the Kingdom Sir Edw. Coke concludes that the Procuratores Cleri have many times appeared in Parliament as Spiritual Assistants to Consider Consult and to Consent but never had Voice there how they could Consult and Consent without Voices he doth not shew Though the Clergy as he saith oft appeared in Parliament yet was it only ad consentiendum as I take it and not ad faciendum for the Word Faciendum is omitted in their Writ the cause as I conceive is the Clergy though they were to assent yet by reason of Clerical Exemptions they were not required to Perform all the Ordinances or Acts of Parliament But some may think though the Writ doth not express a Calling of the Knights Citizens and Burgesses to be part of the Common Councel of the Kingdom yet it supposeth it a thing granted and not to be questioned but that they are a part of the Common Councel Indeed if their Writ had not mentioned the Calling of Prelates Great men and Peers to Councel there might have been a little better colour for such a Supposition but the truth is such a Supposition doth make the Writ it self vain and idle for it is a senseless thing to bid men assent to that which they have already ordained since Ordaining is an Assenting and more than an Assenting For clearing the meaning and sense of the Writ and Satisfaction of such as think it impossible but that the Commons of England have always been a part of the Common Councel of the Kingdom I shall insist upon these Points 1. That anciently the Barons of England were the Common Councel of the Kingdom 2. That untill the time of Hen. 1. the Commons were not called to Parliament 3. Though the Commons were called by Hen. 1. yet they were not constantly called nor yet regularly elected by Writ until Hen. 3. time For the first point Mr. Cambden in his Britannia doth teach us that in the time of the English Saxons and in the ensuing Age a Parliament was called Commune Concilium which was saith he Praesentia Regis Praelatorum Procerumque collectorum the Presence of the King Prelates and Peers assembled No mention of the Commons the Prelates and Peers were all Barons The Author of the Chronicle of the Church of Lichfield cited by M. Selden saith Postquam Rex Edvardus c. Concilio Baronum Angliae c. After King Edward was King by the Councel of the Barons of England he revived a Law which had lain asleep three score seven years and this Law was called the Law of St. Edward the King In the same Chronicle it is said that Will. the Conquerour anno regni sui quarto apud Londin ' had Concilium Baronum suorum a Councel of his Barons And of this Parliament it is that his Son Hen. 1. speaks saving I restore you the Laws of King Edward the Confessor with those amendments wherewith my Father amended them by the Councel of his Barons In the fifth year as Mr. Selden thinks of the Conquerour was a Parliament or Principum conventus an Assembly of Earls and Barons at Pinenden Heath in Kent in the Cause between Lanfranke the Arch-bishop of Canterbury and Odo Earl of Kent The King gave Commission to Godfrid then Bishop of Constance in Normandy to represent His own Person for Hearing the Controversie as saith M. Lambard and caused Egelrick the Bishop of Chichester an aged man singularly commended for Skill in the Laws and Customes of the Realm to be brought thither in a Wagon for his Assistance in Councel Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence three whole days spent in Debate in the End Lanfrank
amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14. Hen. 3. which is nothing but a Letter of the King to Gerard Son of Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Justices only were received always for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elenor are in the Form of a Proclamation and begin Provisum est in Curia Domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings especial or Privy Councel and his Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of King Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Ed. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Ed. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of his People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25 Ed. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of his Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the Case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of our Lord the King or a man do wage War against our Lord the King in His Realm or be adherent to the Kings Enemies in His Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration only that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and his Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. The Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King praying your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded James Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-chamber heard the Cause of the Master and poor Brethren of Saint Leonards in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-chamber decreed that Margery
to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Jurisdictions Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Jurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not only be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the People may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Jurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Justice But he doth not name so much as one Country or Kingdom that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdom that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdoms or no where is such a moderated Government as our Observator means to be found A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern People as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdom the Nobility who have great Authority in the Diets chusing the King and limiting his Authority making his Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his Daughter and the other for his Son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the Book called the Estates of the World doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute power not only of their estates but also of Life and Death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in War Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publick consultations notwithstanding that they had Absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over his Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for his election yet in many things it is Absolute after he is chosen He appoints the Diets at what time and place he pleaseth he chooseth Lay-Councellers and nominates the Bishops and whom he will have to be his Privy Council He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in his power to advance and reward whom he pleaseth He is Lord immediate of his Subjects but not of his Nobility He is Soveraign Judge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs his Subjects which are immediately his with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Jurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place near to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their Authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Council refused his Senators place to become one of these Officers Every Palatine the King requiring it calls together all the Nobility of his Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these Deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to find among them that the whole Community in its underived Majesty doth ever convene to do Justice nor any election or representation of the Community or that the People assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarch The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his
not any One setled Form of Government in Rome for after they had once lost the Natural Power of Kings they could not find upon what Form of Government to rest their Fickleness is an Evidence that they found things amiss in every Change At the First they chose two Annual Consuls instead of Kings Secondly those did not please them long but they must have Tribunes of the People to defend their Liberty Thirdly they leave Tribunes and Consuls and choose them Ten Men to make them Laws Fourthly they call for Consuls and Tribunes again sometimes they choose Dictators which were Temporary Kings and sometimes Military Tribunes who had Consular Power All these shiftings caused such notable Alteration in the Government as it passeth Historians to find out any Perfect Form of Regiment in so much Confusion One while the Senate made Laws another while the People The Dissentions which were daily between the Nobles and the Commons bred those memorable Seditions about Vsury about Marriages and about Magistracy Also the Graecian the Apulian and the Drusian Seditions filled the Market-Places the Temples and the Capitol it self with Blood of the Citizens the Social War was plainly Civil the Wars of the Slaves and the other of the Fencers the Civil Wars of Marius and Sylla of Cataline of Caesar and Pompey the Triumvirate of Augustus Lepidus and Antonius All these shed an Ocean of Blood within Italy and the Streets of Rome Thirdly for their Government let it be allowed that for some part of this time it was Popular yet it was Popular as to the City of Rome only and not as to the Dominions or whole Empire of Rome for no Democratie can extend further than to One City It is impossible to Govern a Kingdom much less many Kingdoms by the whole People or by the Greatest Part of them 12. But you will say yet the Roman Empire grew all up under this kind of Popular Government and the City became Mistress of the World It is not so for Rome began her Empire under Kings and did perfect it under Emperours it did only encrease under that Popularity Her greatest Exaltation was under Trajan as her longest Peace had been under Augustus Even at those times when the Roman Victories abroad did amaze the World then the Tragical Slaughter of Citizens at home deserved Commiseration from their vanquished Enemies What though in that Age of her Popularity she bred many admired Captains and Commanders each of which was able to lead an Army though many of them were but ill requited by the People yet all of them were not able to support her in times of Danger but she was forced in her greatest Troubles to create a Dictator who was a King for a time thereby giving this Honourable Testimony of Monarchy that the last Refuge in Perils of States is to fly to Regal Authority And though Romes Popular Estate for a while was miraculously upheld in Glory by a greater Prudence than her own yet in a short time after manifold Alterations she was ruined by her Own Hands Suis ipsa Roma viribus ruit For the Arms she had prepared to conquer other Nations were turned upon her Self and Civil Contentions at last setled the Government again into a Monarchy 13. The Vulgar Opinion is that the first Cause why the Democratical Government was brought in was to curb the Tyranny of Monarchies But the Falshood of this doth best appear by the first Flourishing Popular Estate of Athens which was founded not because of the Vices of their last King but that his Vertuous Deserts were such as the People thought no Man Worthy enough to succeed him a pretty wanton Quarrel to Monarchy For when their King Codrus understood by the Oracle that his Country could not be saved unless the King were slain in the Battel He in Disguise entered his Enemies Camp and provoked a Common Souldier to make him a Sacrifice for his own Kingdom and with his Death ended the Royal Government for after him was never any more Kings of Athens As Athens thus for Love of her Codrus changed the Government so Rome on the contrary out of Hatred to her Tarquin did the like And though these two famous Commonweals did for contrary Causes abolish Monarchy yet they both agreed in this that neither of them thought it fit to change their State into a Democracy but the one chose Archontes and the other Consuls to be their Governours both which did most resemble Kings and continued untill the People by lessening the Authority of these their Magistrates did by degrees and stealth bring in their Popular Government And I verily believe never any Democratical State shewed it self at first fairly to the World by any Elective Entrance but they all secretly crept in by the Back-door of Sedition and Faction 14. If we will listen to the Judgment of those who should best know the Nature of Popular Government we shall find no reason for good men to desire or choose it Xenophon that brave Scholar and Souldier disallowed the Athenian Common-weal for that they followed that Form of Government wherein the Wicked are always in greatest Credit and Vertuous men kept under They expelled Aristides the Just Themistocles died in Banishment Meltiades in Prison Phocion the most virtuous and just man of his Age though he had been chosen forty five times to be their General yet he was put to Death with all his Friends Kindred and Servants by the Fury of the People without Sentence Accusation or any Cause at All. Nor were the People of Rome much more favourable to their Worthies they banished Rutilius Metellus Coriolanus the Two Scipio's and Tully the worst men sped best for as Xenophon saith of Athens so Rome was a Sanctuary for all Turbulent Discontented and Seditious Spirits The Impunity of Wicked men was such that upon pain of Death it was forbidden all Magistrates to Condemn to Death or Banish any Citizen or to deprive him of his Liberty or so much as to whip him for what Offence soever he had committed either against the Gods or Men. The Athenians sold Justice as they did other Merchandise which made Plato call a Popular Estate a Fair where every thing is to be sold The Officers when they entered upon their Charge would brag they went to a Golden Harvest The Corruption of Rome was such that Marius and Pompey durst carry Bushels of Silver into the Assemblies to purchase the Voices of the People Many Citizens under their Grave Gowns came Armed into their Publick Meetings as if they went to War Often contrary Factions fell to Blows sometimes with Stones and sometimes with Swords the Blood hath been suckt up in the Market Places with Spunges the River Tiber hath been filled with the Dead Bodies of the Citizens and the common Privies stuffed full with them If any man think these Disorders in Popular States were but Casual or such as might happen under any kind of Government he must
the King alone at the Rogation of the People as His Majesty King James of happy Memory affirms in his true Law of free Monarchy and as Hooker teacheth us That Laws do not take their constraining force from the Quality of such as devise them but from the Power that doth give them the Strength of Laws Le Roy le Veult the King will have it so is the Interpretive Phrase pronounced at the King 's passing of every Act of Parliament And it was the ancient Custom for a long time till the days of Henry the Fifth that the Kings when any Bill was brought unto them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted for a Law but the Custom of the later Kings hath been so gracious as to allow always of the entire Bill as it hath passed both Houses 16. The Parliament is the King's Court for so all the oldest Statutes call it the King in His Parliament But neither of the two Houses are that Supream Court nor yet both of them together they are only Members and a part of the Body whereof the King is the Head and Ruler The King 's Governing of this Body of the Parliament we may find most significantly proved both by the Statutes themselves as also by such Presidents as expresly shew us how the King sometimes by himself sometimes by his Council and other-times by his Judges hath over-ruled and directed the Judgments of the Houses of Parliament for the King we find that Magna Charta and the Charter of Forrests and many other Statutes about those times had only the Form of the Kings Letters-Patents or Grants under the Great Seal testifying those Great Liberties to be the sole Act and Bounty of the King The words of Magna Charta begin thus Henry by the Grace of God c. To all our Arch-Bishops c. and Our Faithful Subjects Greeting Know ye that We of Our meer free-Will have granted to all Free-men these Liberties In the same style goeth the Charter of Forrests and other Statutes Statutum Hiberniae made at Westminster 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard Son of Maurice Justice of Ireland The Statute de anno Bissextili begins thus The King to His Justices of the Bench Greeting c. Explanationes Statuti Glocestriae made by the King and his Justices only were received always as Statutes and are still Printed amongst them The Statute made for Correction of the 12 th Chapter of the Statute of Glocester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the King's Hand at Westminster requiring that they should do and execute all and every thing contained in it although the same do not accord with the Statute of Glocester in all things The Statute of Rutland is the King's Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Judges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestick Terms of The King Commands or The King Wills or Our Lord the King hath Established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meer Proclamations as the Provisions of Merton made by the King at an Assembly of the Prelates and Nobility for the Coronation of the King and his Queen Eleanor which begins Provisum est in Curia Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimae Praesentationis which was continued and allowed for Law until Tit. West 2. an 13. Ed. 1. cap. 5. which provides the contrary in express words This Provision begins Provisum fuit coram Dom. Rege Archiepiscopis Episcopis Baronibus quod c. It seems Origanally the difference was not great between a Proclamation and a Statute this latter the King made by Common Council of the Kingdom In the former he had but the advice only of his great Council of the Peers or of his Privy Council only For that the King had a great Council besides his Parliament appears by a Record of 5. Hen. 4. about an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the Advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the KING will assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. cap. 8. in these words Forasmuch as the King by the Advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great Prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Regal Power given him by God may do many things in such Cases should not be driven to extend the Liberties and Supremity of his Regal Power and Dignity by willfulness of froward Subjcts It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a second Parliament and the Statute made Proclamations of as great Validity as if they had been made in Parliament This Law continued until the Government of the State came to be under a Protector during the Minority of Edward the Sixth and in his first Year it was Repealed I find also that a Parliament in the 11th Year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damned and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Comission Court affirms that the Statute of 2 H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the
to Governors in Dangerous and Doubtful Times II. Reflections concerning the Original of Government upon 1. Aristotle's Politiques 2. Mr. Hobs's Leviathan 3. Mr. Milton against Salmasius 4. H. Grotius De Jure Belli 5. Mr. Hunton's Treatise of Monarchy or the Anarchy of a limited or mixed Monarchy III. A Succinct Examination of the Fundamentals of Monarchy both in this and other Kingdoms as well about the Right of Power in Kings as of the Original and Natural Liberty of the People A Question never yet Disputed though most necessary in these Times IV. The Power of Kings And in Particular of the King of England V. An Advertisement to the Jury-Men of England touching Witches Together with a Difference between an English and Hebrew Witch VI. PATRIARCHA Or the Natural Power of KINGS The Argument A Presentment of divers Statutes Records and other Precedents explaining the Writs of Summons to Parliament shewing I. That the Commons by their Writ are only to Perform and Consent to the Ordinances of Parliament II. That the Lords or Common Councel by their Writ are only to Treat and give Counsel in Parliament III. That the King himself only Ordains and makes Laws and is Supreme Judge in Parliament With the Suffrages of Hen. de Bracton Jo. Britton Tho. Egerton Edw. Coke Walter Raleigh Rob. Cotton Hen. Spelman Jo. Glanvil Will. Lambard Rich. Crompton William Cambden and Jo. Selden THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the King and His Parliament EVery Free-holder that hath a Voice in the Election of Knights Citizens or Burgesses for the Parliament ought to know with what Power he trusts those whom he chooseth because such Trust is the Foundation of the Power of the House of Commons A Writ from the King to the Sheriff of the County is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ and in the Writ there is also expressed the Duty and Power of the Knights Citizens and Burgesses that are there elected The means to know what Trust or Authority the Countrey or Free-holders confer or bestow by their Election is in this as in other like Cases to have an eye to the words of the Commission or Writ it self thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission greater or other Trust than is comprised in the Body of the Writ the Free-holders do not or cannot give if they obey the Writ the Writ being Latine and not extant in English few Free-holders understand it and fewer observe it I have rendred it in Latine and English Rex Vicecomiti salut ' c. QVia de Advisamento Assensu Concilii nostri pro quibusdam arduis urgentibus Negotiis Nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud Civitatem nostram West duodecimo die Novembris prox ' futur ' teneri ordinavimus ibid ' cum Praelatis Magnatibus Proceribus dicti regni nostri colloquium habere tract ' Tibi praecipimus firmiter injungentes quod facta proclam ' in prox ' comitat ' tuo post receptionem hujus brevis nostri tenend ' die loco praedict ' duos milit ' gladiis cinct ' magis idoneos discretos comit ' praedicti de qualib ' civitate com' illius duos Cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuerint juxta formam statutorum inde edit ' provis ' eligi nomina corundum milit ' civium Burgensium sic electorum in quibusdam indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi electi praesentes fuerint vel absentes inseri cósque ad dict' diem locum venire fac ' Ita quod iidem milites plenam sufficientem potestatem pro se communitate comit ' praedicti ac dict' Cives Burgenses pro se communitat ' Civitatum Burgorum praedictorum divisim ab ipsishabeant ad faciendum consentiendum his quae tunc ibid ' de communi Consilio dicti reg nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem milit ' Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovismodo Nolumus autem quod tu nec aliquis alius vic' dicti reg nostri aliqualiter sit electus Et electionem illam in pleno comitatu factam distincte aperte sub sigillo tuo sigillis eorum qui electioni illi interfuerint nobis in cancellar ' nostram ad dict' diem locum certifices indilate remittens nobis alteram partem indenturarum praedictarum praesentibus consut ' una cum hoc breve Teste meipso apud Westmon ' The King to the Sheriff of Greeting WHereas by the Advice and Consent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of our Kingdom of England and the English Church We have ordained a certain Parliament of ours to be held at Our City of _____ the _____ day of _____ next ensuing and there to have Conference and to treat with the Prelates Great men and Peers of our said Kingdom We command and straitly enjoyn you that making Proclamation at the next County-Court after the Receipt of this our Writ to be holden the day and place aforesaid You cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens of every Borough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen by them who shall be present at such Proclamation according to the Tenor of the Statutes in that case made and provided and the Names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the Parties so elected be present or absent and shall make them to come at the said day and place so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Boroughs may have severally from them full and sufficient Power to Perform and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common Councel of our said Kingdom concerning the Businesses aforesaid So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses But We will not in any
had no formal Parliaments till about the 18 th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of his Privy Councel alone And the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after the establishment of the Parliament by colour of it that they had so great Daring If any desire to know the cause why Hen. 1. called the People to Parliament it was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the better to secure himself against Robert his elder Brother he flattered the People with those Charters yea King John that confirmed them had the like Respect for Arthur D. of Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original from Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had first an obscure Birth by Vsurpation was fostered and shewed to the World by Rebellion in brief the King called the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that the Commons were not called to Parliament until Hen. 3. days this appears by divers of the Precedents formerly cited to prove that the Barons were the Common Councel For though Hen. 1. called all the People of the Land to his Coronation and again in the 15. or 18. year of his Reign yet always he did not so neither many of those Kings that did succeed him as appeareth before Secondly For calling the Commons by Writ I find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words In ancient times after the King had summoned His Parliament innumerable multitudes of People did make their Access thereunto pretending that Privilege of Right to belong to them But King Hen. 3. having Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that none might come to His Parliament but those who were specially summoned To this purpose it is observed by Master Selden that the first Writs we find accompanied with other Circumstances of a Summons to Parliament as well for the Commons as Lords is in the 49 of Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these words King Hen. 3. out of a great Multitude which were seditious and turbulent called the very best by Writ or Summons to Parliament for he after many Troubles and Vexations between the King himself and Simon de Monefort with other Barons and after appeased did decree and ordain That all those Earls and Barons unto whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament and no others but that which he began a little before his Death Edward 1. and his Successors constantly observed and continued The said prudent King Edward summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Vnderstanding Also Mr. Cambden in another place saith that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well-Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10 H. 6. Our Lord the King ordained that Knights be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment hath ordained that if any Assault or Fray be made on them that come to Parliament or other Councel of the King the Party which made any such Affray or Assault shall pay double Damages and make Fine and Ransom at the Kings Will. 23 H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8 Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Vse is as in the conge d' eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told the Queen whereupon Sir Henry Knivet said It should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Woolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly He voucheth an Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Judicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of the Councel may mean the Kings Privy Councel or his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooveful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent forasmuch as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 H. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcel of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3.16 a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet he confesseth that by their Writ they have power both to treat and to give Counsel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with us the Prelates Great men and Peers to treat and give your Counsel The Words of the Judges Writ are That you be present with Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have liberty in the upper House it self upon leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Judges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31 Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made Sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes there Sir John Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with him in giving Judgement But if by no Vote is meant He hath no Power to judge we despoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King
Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where the King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicit Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lye at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Justice and Discretion in Mercy and Truth in all His Judgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Judgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the Assenting unto or granting any new Laws but of holding protecting and strengthening with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom it would not make him a King nor give him Power to make one Law a Negative Voice is but a privative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogism of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The Reason is plain why the Kings Negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Justice of England to the Opinion of him that calls himself an utter Barrister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Justices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of our Lord the King is to be expected seeing it is His part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Judge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Vice-roy of God and that he hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of his People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Jurisdictions c. We Will that Our Jurisdiction be above all the Jurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have Power to yield or cause to be yielded such Judgments as do appertain without other Process wheresoever we know the right Truth as Judges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the Authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lambard puts us in mind of a Saxon Law of King Edgar's Nemo in lite Regem appellato c. Let no man in Suit appeal unto the King unless he cannot get Right at home but if that Right be too Heavy for him then let him go to the King to have it eased By which it may evidently appear that even so many years ago there might be Appellation made to the Kings Person whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of this Realm out of which Law Master Lambard gathers that the King himself had a High Court of Justice wherein it seemeth He sate in Person for the words be Let him not seek to the King and the same Court of the King did judge not only according to meer Right and Law but also after Equity and good Conscience For the Close I shall end with the Suffrage of our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Justitia solius Regis est c. All Justice of the Kingdom is only the King 's and He alone if He were able should administer it but that being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remiss and so oft Wrong instead of Right will be done if we stand to strict Law also Causes hard and difficult daily arise which are comprehended in no Law-books in those there is a necessity of running back to the King the Fountain of Justice and the Vicegerent of God himself who in the Commonwealth of the Jews took such Causes to His own cognisance and left
been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney of the Dutchy were sent by the House to the Lord Keeper in the name of the whole House to require his Lordship to revoke two Writs of Subpoena's which were served upon M. Th. Knevit a Member of the House since the Beginning of Parliament The Lord Keeper demanded of them whether they were appointed by any advised Consideration of the House to deliver this Message unto him with the word Required in such manner as they had done or no they answered his Lordship yea his Lordship then said as he thought reverently and honourably of the House and of their Liberties and Privileges of the same so to revoke the said Subpoena's in that sort was to restrain Her Majesty in Her greatest Power which is Justice in the Place wherein he serveth under Her and therefore he concluded As they had required him to revoke his Writ so he did require to deliberate Upon the 22 of February being Wednesday 18 Eliz. Report was made by Mr. Attorney of the Dutchy upon the Committee for the delivering of one Mr. Hall's man that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ and that by divers Precedents of Records perused by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Privilege hath used in that case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the party for whom such Writ is prayed Came up with him and was his Servant at the time of the Arrest made Thereupon M. Hall was moved by the House to repair to the Lord Keeper and make Oath and then take a Warrant for a Writ of Privilege for his Servant It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice and Officers of State yet there is not the meanest Subject but hath liberty upon just cause to question the misdemeanour of any Court or Officer if he suffer by them there is no Law against him for so doing so that this cannot properly be called a Privilege because it is not against any publick Law It hath been esteemed a great Favour of Princes to permit such Examinations For when the Lords were displeased with the Greatness of Pierce Gaveston it is said that in the next Parliament the whole Assembly obtain of the King to draw Articles of their Grievances which they did Two of which Articles were First that all Strangers should be banished the Court and Kingdom of which Gaveston was one Secondly that the business of the State should be treated of by the Councel of the Clergy and Nobles In the Reign of King Henry the sixth one Mortimer an Instrument of the Duke of York by promising the Kentish men a Reformation and freedom from Taxations wrought with the people that they drew to a Head and made this Mortimer otherwise Jack Cade their Leader who styled himself Captain Mend-all He presents to the Parliament the Complaints of the Commons and he petitions that the Duke of York and some other Lords might be received by the King into favour by the undue Practices of Suffolk and his Complices commanded from his Presence and that all their Opposites might be banished the Court and put from their Offices and that there might be a general amotion of corrupt Officers These Petitions are sent from the Lower House to the Vpper and from thence committed to the Lords of the Kings Privy Councel who having examined the particulars explode them as frivolous and the Authors of them to be presumptuous Rebels Concerning Liberty or freedom of Speech I find that at a Parliament at Black Friars in the 14 of Henry the Eighth Sir Tho. More being chosen Speaker of the House of Commons He first disabled himself and then petitioned the King that if in Communication and Reasoning any man in the Commons House should speak more largely than of Duty they ought to do that all such Offences should be pardoned and to be entred of Record which was granted It is observable in this Petition that Liberty or Freedom of Speech is not a Power for men to speak what they will or please in Parliament but a Privilege not to be punished but pardoned for the Offence of speaking more largely than in Duty ought to be which in an equitable Construction must be understood of rash unadvised ignorant or negligent Escapes and Slips in Speech and not for wilful malicious Offences in that kind And then the Pardon of the King was desired to be upon Record that it might be pleaded in Bar to all Actions And it seemeth that Ric. Strood and his Complices were not thought sufficiently protected for their free Speech in Parliament unless their Pardon were confirmed by the King in Parliament for there is a printed Statute to that Purpose in Hen. Eighth's time Touching the freedom of Speech the Commons were warned in Qu. Eliz. days not to meddle with the Queens Person the State or Church-government In her time the Discipline of the Church was so strict that the Litany was read every morning in the House of Commons during the Parliament and when the Commons first ordered to have a Fast in the Temple upon a Sunday the Queen hindred it 21 Jan. Saturday 23 Eliz. the Case is thus reported Mr. Peter Wentworth moveth for a Publick set Fast and for a Preaching every morning at 7 of the clock before the House sate the House was divided about the Fast 115 were for it and an 100 against it it was ordered that as many of the House as conveniently could should on Sunday fortnight after Assemble and meet together in the Temple Church there to hear Preaching and to joyn together in Prayer with Humiliation and Fasting for the Assistance of God's Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and Her Realms And the Preachers to be appointed by the Privy Councel that were of the House that they may be Discreet not medling with Innovation or Vnquietness This Order was followed by a Message from Her Majesty to the House declared by Mr. Vice-chamberlain that Her Highness had a great Admiration of the rashness of this House in committing such an apparent Contempt of her express Command as to put in execution such an Innovation without Her privity or pleasure first known Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty acknowledging the said Offence and Contempt craving a Remission of the same with a full purpose to forbear the Committing of the like hereafter and by the Consent of the whole House Mr. Vice-Chamberlain carried their Submission to her Majesty 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords
thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in Conference with their Lordships without Prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their Not assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in Conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament He marvail'd the House stood either at the granting of a Subsidy or time of Payment when all we have is her Majesties and She may lawfully at her Pleasure take it from us and that she had as much Right to all our Lands and Goods as to any Revenue of the Crown and he said he could prove it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon w ch this Serjeant at Law went may be thought the same Sir Ed. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors and Royalties they reserved to themselves and of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above and before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights see was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will and also will have it so le Roy remercie ses loyaux Subjects accept leur benevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so are the only words that makes the Act of Subsidy a Law to bind every man to the Payment of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common-Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the Return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in be stowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King James who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling it their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use such Antimonarchical words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favours of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING FORMS of GOVERNMENT Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times Licensed and Entred according to Order for Richard Royston A Book Entituled Observations upon Aristotle's Politiques touching Forms of Government Together with Directions for Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Judge of till time hath tried it we read of many several ways
Profit of the Rich the Democraty for the Benefit of the Poor None of these are for the Common Good Here Aristotle if he had stood to his own Principles should have said an Oligarchy should be for the Benefit of a few and those the best and not for the Benefit of the Rich and a Democraty for the Benefit of many and not of the Poor only for so the Opposition â—â—eth but then Aristotle saw his Democraty would prove to be no Transgression but a perfect Polity and his Oligarchy would not be for the Benefit of a few and those the best men for they cannot be the best men that seek only their private Profit In this Chapter the mind of Aristotle about the several kinds of Government is clearliest delivered as being the Foundation of all his Books of Politicks it is the more necessary to make a curious Observation of these his Doctrines In the first place he acknowledgeth the Government of one man or of a Monarchy and that is a perfect Form of Government Concerning Monarchy Aristotle teacheth us the beginning of it for saith he the first Society made of many Houses is a Colony which seems most naturally to be a Colony of Families or Foster-brethren of Children and Childrens children And therefore at the beginning Cities were and now Nations under the Government of Kings the Eldest in every house is King and so for Kindred sake it is in Colonies Thus he deduced the Original of Government from the Power of the Fatherhood not from the Election of the People This it seems he learnt of his Master Plato who in his third Book of Laws affirms that the true and first Reason of Authority is that the Father and Mother and simply those that beget and ingender do command and rule over all their Children Aristotle also tells us from Homer that every man gives Laws to his Wife and Children In the fourth Book of his Politicks cap. 2. he gives to Monarchy the Title of the first and divinest sort of Government defining Tyranny to be a Transgression from the first and divinest Again Aristotle in the eighth Book of his Ethicks in the 12 Chapter saith That of the right Kinds of Government a Monarchy was the best and a popular Estate the worst Lastly in the third Book of his Politicks and the sixteenth Chapter concerning Monarchy he saith that A perfect Kingdom is that wherein the King rules all things according to his own Will for he that is called a King according to the Law makes no kind of Government Secondly he saith there is a Government of a few men but doth not tell us how many those few men may or must be only he saith they must be more than one man but how many that he leaves uncertain This perfect Government of a few any man would think Aristotle should have called an Oligarchy for that this word properly signifies so much but in stead of the Government of a few Aristotle gives it a quite other name and terms it an Aristocraty which signifies the Power of the best the reason why it is called an Aristocraty said Aristotle is for that there the best men govern or because that is not always true for that it is for the best of the governed by this latter reason any Government and most especially a Monarchy may be called an Aristocraty because the End of Monarchy is for the best of the governed as well as the End of an Aristocraty so that of these two Reasons for calling the Government of a few an Aristocraty the first is seldom true and the latter is never sufficient to frame a distinction This Aristotle himself confesseth in his next Chapter saying that the Causes aforesaid do not make a Difference and that it is Poverty and Riches and not Few and Many that make the Difference between an Oligarchy and Democraty there must be an Oligarchy where rich men rule whether they be few or many and wheresoever the Poor have the Sovereignty there must be a Democraty Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a Democraty these two must likewise make the Difference between an Aristocraty and a Polity for the only Difference Aristotle makes between them is in their Ends and not in their Matter for the same few men may make an Aristocraty if their End be the Common Good and they may be an Oligarchy if they aim only at their private Benefit Thus is Aristotle distracted and perplexed how to distinguish his Aristocraty whether by the smallness of their Number or by the Greatness of their Estates Nay if we look into Aristotle's Rhetoricks we shall find a new Conceit not only about Aristocraty but also about the sorts of Government for whereas he has taught us in his Politicks that there be three sorts of Right or perfect Government and as many sorts of wrong which he calls Transgressions or Corruptions he comes in his Rhetoricks and teacheth us that there be four sorts of Government 1. A Democraty where Magistracies are distributed by Lots 2. In an Oligarchy by their Wealth 3. In an Aristocraty by their Instructions in the Law It is necessary for these to appear the best from whence they have their name 4. A Monarchy according to the name wherein one is Lord over all Here we see Aristocraty is not distinguished by smalness of Number nor by Riches but by Skill in the Laws for he saith those that are instructed in the Laws govern in an Aristocraty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Point not dreamt of in his Politicks by which it seems Aristotle himself did not know well what he would have to be an Aristocraty And as he cannot teach us truly what an Aristocraty is so he is to seek to tell us where any Aristocraty ever was even himself seems to doubt whether there be any such Form of Government where he saith in his third Book of Politicks cap. 5. It is impossible for any Mechanical man to be a Citizen in an Aristocraty if there be any such Government as they call Aristocratical His if makes him seem to doubt of it yet I find him affirm that the Commonwealth of Carthage was Aristocratical he doth not say it was an Aristocraty for he confesseth it had many of the Transgressions which other Commonwealths had and did incline either to a Democraty or an Oligarchy The Government of Carthage did transgress from an Aristocraty to an Oligarchy And he concludes that if by Misfortune there should happen any Discord among the Carthaginians themselves there would be no Medicine by Law found out to give it Rest wherein me-thinks Aristotle was a kind of Prophet for the Discords between the Citizens of Carthage were the main Cause that Hannibal lost not only Italy but Carthage it self By these few Collections we may find how uncertain Aristotle is in determining what an Aristocraty is or where
or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of all men should not be able to compound a name for such a perfect Form of Government unless we should believe that they esteemed this kind of Commonwealth so superlatively excellent as to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Government of all Governments or Polity of Polities But howsoever Aristotle in his Books of Politicks vouchsafe us not a Name yet in his Books of Ethicks he affirmeth it may very properly be called a Timocratical Government where Magistrates are chosen by their Wealth But why Aristotle should give it such a Name I can find no Reason for a Polity by his Doctrine is the Government of many or of a Multitude and the Multitude he will have to be the poorer sort insomuch that except they be poor he will not allow it to be the Government of a Multitude though they be never so many for he makes Poverty the truest Note of a popular Estate and as if to be Poor and to be Free were all one he makes Liberty likewise to be a Mark of popular Estate for in his 4 th Book and 4 th Chapter he resolves That a popular State is where Freemen govern and an Oligarchy where rich men rule as if rich men could not be Free-men Now how Magistrates should be chosen for their Wealth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 among all poor men is to me a Riddle Here I cannot but wonder why all our Modern Politicians who pretend themselves Aristotelians should forsake their great Master and account a Democraty a right or perfect Form of Government when Aristotle brands it for a Transgression or a depraved or corrupted manner of Government They had done better to have followed Aristotle who though other Grecians could not yet he could find out the name of a Timocraty for a right popular Government But it may be our Politicians forbear to use the word Timocraty because he affords an ill Character of it saying That of all the right Kinds of Government a Monarchy was the best and a Timocraty the worst 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet afterwards Aristotle in the same Chapter makes amends for it in saying a Democraty is the least vicious because it doth but a little Transgress from a Timocraty But not to insist longer on the name of this nameless Form of Government let Inquiry be made into the thing it self that we may know what Aristotle saith is the Government of many or of a Multitude for the Common Good This Many or Multitude is not the whole People nor the major part of the People or any chosen by the People to be their Representors No Aristotle never saith or meaneth any such thing for he tells us the best City doth not make any Artificer or Handicraftsman a Citizen And if these be excluded out of the Number of Citizens there will be but a few lest in every City to make his Timocratical Government since Artificers or Mercenary men make far the greatest part of a City or to say a City is a Community of Free-men and yet to exclude the greatest part of the Inhabitants from being Citizens is but a Mockery of Freedom for any man would think that a City being a Society of men assembled to the End to live well that such men without whom a City cannot subsist and who perform necessary Works and minister to all in Publick should not be barred from being Citizens yet says Aristotle all those are not to be deemed Citizens without whom a City cannot subsist except they abstain from necessary Works for he resolves it impossible for him to exercise the Work of Vertue that useth a Mechanical or Mercenary Trade And he makes it one of his Conclusions That in ancient times among some men no publick Workman did partake of the Government until the worst of Democraties were brought in Again Aristotle will have his best Popular Government consist of Free-men and accounts the poorer sort of People to be Free-men how then will he exclude poor Artificers who work for the Publick from participating of the Government Further it is observable in Aristotle That quite contrary to the Signification of the Greek names the Government of a Multitude may be termed an Oligarchy if they be rich and the Rule of a few a Democraty if they be poor and free After much Incertainty of the Nature of this Politick Government which wants a name Aristotle at last resolves that this general Commonweal or Politia is compounded of a Democraty and Oligarchy for to speak plainly a Polity is a mixture of a Democraty and an Oligarchy That is one perfect Form is made of two imperfect ones this is rather a confounding than compounding of Government to patch it up of two corrupt ones by appointing an Oligarchical Penalty for the rich Magistrates that are chosen by Election and a Democratical Fee for the poor Magistrates that are chosen by Lot Lastly it is to be noted That Aristotle doth not offer to name any one City or Commonweal in the World where ever there was any such Government as he calls a Polity for him to reckon it for a perfect Form of Government and of such Excellency as to carry the Name from all other and yet never to have been extant in the World may seem a Wonder and a man may be excused for doubting or for denying any such Form to be possible in Nature if it cannot be made manifest what it is nor when nor where it ever was In Conclusion since Aristotle reckons but three kinds of perfect Government which are First a Monarchy of one Secondly an Aristocraty of a few Thirdly a Polity of a Multitude and if these two latter cannot be made good by him there will remain but one right Form of Government only which is Monarchy And it seems to me that Aristotle in a manner doth confess as much where he informs us that the first Commonweal among the Grecians after Kingdoms was made of those that waged War meaning that the Grecians when they left to be governed by Kings fell to be governed by an Army their Monarchy was changed into a Stratocraty and not into an Aristocraty or Democraty for if Unity in Government which is only found in Monarchy be once broken there is no Stay or Bound until it come to a constant standing Army for the People or Multitude as Aristotle teacheth us can excel in no Vertue but Military and that That is natural to them and therefore in a popular Estate The Sovereign Power is in the Sword and those that are possessed of the Arms. So that any Nation or Kingdom
Religion we find presently after the Building of the City by Romulus the next King Numa most devoutly established a Religion and began his Kingdom with the Service of the Gods he forbad the Romans to make any Images of God which Law lasted and was observed 170 Years there being in all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifex Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not belawful for any to consecrate either Houses Grounds Altars or any other things without the Determination of the People Domitius Aenobarbus another Tribune Enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the Common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or Admission from the Colledge Thus by a Committee of Seven Tribes taken out of Thirtyfive the Ancient Form of Religion was altered and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a Popular Estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or Chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War lib. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Janus shut after the end of the first Punick War but not so long as for one year but for some Months It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius to Augustus Caesar only for one Summer the Bowels of Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone foils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthage the Beginning of which War Sir Walter Raleigh proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kingly Power of the Consuls who as Livy saith had the same Royal Jurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensigns of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shews of Government the Popular which served only to raise Seditions and Discords within the Walls whilst the Regal atchieved the Conquests of Foreign Nations and Kingdoms Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still resort to the Creation of a Dictator who for the time was an Absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all
seen in our Age amongst the Grisons c. Upon these Texts of Aristotle fore-cited and from the Mutability of the Roman Popularity which Aristotle lived not to see I leave the Learned to consider whether it be not probable that these or the like Paradoxes may be inferred to be the plain Mind of Aristotle viz. 1. That there is no Form of Government but Monarchy only 2. That there is no Monarchy but Paternal 3. That there is no Paternal Monarchy but Absolute or Arbitrary 4. That there is no such thing as an Aristocraty or Democraty 5. That there is no such Form of Government as a Tyranny 6. That the People are not born Free by Nature DIRECTIONS FOR Obedience to GOVERNMENT IN Dangerous or Doubtful Times ALL those who so eagerly strive for an Original Power to be in the People do with one Consent acknowledge that Originally the Supreme Power was in the Fatherhood and that the first Kings were Fathers of Families This is not only evident and affirmed by Aristotle but yielded unto by Grotius Mr. Selden Mr. Hobbs Mr. Ascam and all others of that Party not one excepted that I know of Now for those that confess an original Subjection in Children to be governed by their Parents to dream of an original Freedom in Mankind is to contradict themselves and to make Subjects to be Free and Kings to be Limited to imagine such Pactions and Contracts between Kings and People as cannot be proved ever to have been made or can ever be described or fancied how it is possible for such Contracts ever to have been is a boldness to be wondred at Mr. Selden confesseth that Adam by donation from God was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children And by Donation or Assignation or some kind of Concession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of Private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City It is confessed that in the Infancy of the World the Paternal Government was Monarchical but when the World was replenished with multitude of People then the Paternal Government ceased and was lost and an Elective kind of Government by the People was brought into the World To this it may be answered That the Paternal Power cannot be lost it may either be transferr'd or usurped but never lost or ceaseth God who is the giver of Power may transfer it from the Father to some other he gave to Saul a Fatherly Power over his Father Kish God also hath given to the Father a Right or Liberty to alien his Power over his Children to any other whence we find the Sale and Gift of Children to have been much in Use in the beginning of the World when men had their Servants for a Possession and an Inheritance as well as other Goods whereupon we find the Power of Castrating and making Eunuchs much in Use in Old Times As the Power of the Father may be lawfully transferr'd or aliened so it may be unjustly usurped And in Usurpation the Title of an Usurper is before and better than the Title of any other than of him that had a former Right for he hath a Possession by the permissive Will of God which Permission how long it may endure no man ordinarily knows Every man is to preserve his own Life for the Service of God and of his King or Father and is so far to obey an Usurper as may tend not only to the preservation of his King and Father but sometimes even to the preservation of the Usurper himself when probably he may thereby be reserved to the Correction or Mercy of his true Superiour though by Humane Laws a long Prescription may take away Right yet Divine Right never dies nor can be lost or taken away Every man that is born is so far from being Free-born that by his very Birth he becomes a Subject to him that begets him under which Subjection he is always to live unless by immediate Appointment from God or by the Grant or Death of his Father he become possessed of that Power to which he was subject The Right of Fatherly Government was ordained by God for the preservation of Mankind if it be usurped the Usurper may be so far obeyed as may tend to the preservation of the Subjects who may thereby be enabled to perform their Duty to their true and right Sovereign when time shall serve in such Cases to obey an Usurper is properly to obey the first and right Governour who must be presumed to desire the safety of his Subjects the Command of an Usurper is not to be obeyed in any thing tending to the destruction of the Person of the Governour whose Being in the first place is to be looked after It hath been said that there have been so many Usurpations by Conquest in all Kingdoms that all Kings are Usurpers or the Heirs or Successors of Usurpers and therefore any Usurper if he can but get the possession of a Kingdom hath as good a Title as any other Answer The first Usurper hath the best Title being as was said in possession by the Permission of God and where an Usurper hath continued so long that the knowledge of the Right Heir be lost by all the Subjects in such a Case an Usurper in possession is to be taken and reputed by such Subjects for the true Heir and is to be obeyed by them as their Father As no man hath an infallible Certitude but only a moral Knowledge which is no other than a probable perswasion grounded upon a peaceable possession which is a warrant for Subjection to Parents and Governours for we may not say because Children have no infallible or necessary certainty who are their true Parents that therefore they need not obey because they are uncertain it is sufficient and as much as Humane Nature is capable of for Children to rely upon a credible perswasion for otherwise the Commandment of Honour thy Father would be a vain Commandment and not possible to be observed By Humane positive Laws a Possession time out of mind takes away or barrs a former Right to avoid a general Mischief of bringing all Right into a Disputation not decideable by proof and consequently to the overthrow of all Civil Government in Grants Gifts and Contracts between man and man But in Grants and Gifts that have their Original from God or Nature as the Power of the Father hath no Inferiour Power of man can limit nor make any Law of Prescription against them upon this ground is built that Common Maxim that Nullum tempus occurrit regi No time bars a King All Power on Earth is either derived or usurped from the Fatherly Power there being no other Original to be found of any Power whatsoever for
frustrates the End for which the Sovereignty was Ordained then there is no liberty to refuse otherwise there is If no man be bound by the words of his Subjection to kill any other man then a Sovereign may be denied the benefit of War and be rendred unable to defend his People and so the End of Government frustrated If the Obligation upon the Commands of a Sovereign to execute a dangerous or dishonourable Office dependeth not on the words of our Submission but on the Intention which is to be understood by the End thereof No man by Mr. Hobs's Rules is bound but by the words of his Submission the Intention of the Command binds not if the words do not If the Intention should bind it is necessary the Sovereign must discover it and the People must dispute and judge it which how well it may consist with the Rights of Sovereignty Mr. Hobs may consider Whereas Master Hobs saith the Intention is to be understood by the End I take it he means the End by Effect for the End and the Intention are one and the same thing and if he mean the Effect the Obedience must go before and not depend on the understanding of the Effect which can never be if the Obedience do not precede it In fine he resolves refusal to obey may depend upon the judging of what frustrates the End of Sovereignty and what not of which he cannot mean any other Judge but the People XV. Mr. Hobs puts a case by way of Question A great many men together have already resisted the Sovereign Power unjustly or committed some Capital Crime for which every one of them expecteth death whether have they not the liberty then to joyn together and assist and defend one another Certainly they have for they but defend their Lives which the Guilty man may as well do as the Innocent There was indeed Injustice in the first breach of their Duty their bearing of Arms subsequent to it though it be to maintain what they have done is no new unjust Act and if it be only to defend their Persons it is not unjust at all The only reason here alledged for the Bearing of Arms is this That there is no new unjust Act as if the beginning only of a Rebellion were an unjust Act and the continuance of it none at all No better Answer can be given to this case than what the Author himself hath delivered in the beginning of the same Paragraph in these words To resist the Sword of the Commonwealth in defence of another man Guilty or Innocent no man hath Liberty because such Liberty takes away from the Sovereign the Means of protecting us and is therefore destructive of the very Essence of Government Thus he first answers the question and then afterwards makes it and gives it a contrary Answer other Passages I meet with to the like purpose He saith Page 66. A man cannot lay down the Right of Resisting them that assault him by Force to take away his Life The same may be said of Wounds Chains and Imprisonment Page 69. A Covenant to defend my self from Force by Force is void Pag. 68. Right of Defending Life and Means of living can never be abandoned These last Doctrines are destructive to all Government whatsoever and even to the Leviathan it self hereby any Rogue or Villain may murder his Sovereign if the Sovereign but offer by force to whip or lay him in the Stocks since Whipping may be said to be wounding and putting in the Stocks an Imprisonment so likewise every man's Goods being a Means of Living if a man cannot abandon them no Contract among men be it never so just can be observed thus we are at least in as miserable condition of War as Mr. Hobs at first by Nature found us XVI The Kingdom of God signifies saith Master Hobs page 216. a Kingdom constituted by the Votes of the People of Israel in a peculiar manner wherein they choose God for their King by Covenant made with him upon God's promising them Canaan If we look upon Master Hobs's Text for this it will be found that the People did not Constitute by Votes and choose God for their King But by the Appointment first of God himself the Covenant was to be a God to them they did not contract with God that if he would give them Canaan they would be his Subjects and he should be their King It was not in their power to choose whether God should be their God yea or nay for it is confessed He reigned naturally over all by his Might If God Reigned naturally he had a Kingdom and Sovereign Power over his Subjects not acquired by their own Consent This Kingdom said to be constituted by the Votes of the People of Israel is but the Vote of Abraham only his single Voice carried it he was the Representative of the People For at this Vote it is confessed that the Name of King is not given to God nor of Kingdom to Abraham yet the thing if we will believe Master Hobs is all one If a Contract be the mutual transferring of Right I would know what Right a People can have to transfer to God by Contract Had the People of Israel at Mount Sinai a Right not to obey God's Voice If they had not such a Right what had they to transfer The Covenant mentioned at Mount Sinai was but a Conditional Contract and God but a Conditional King and though the People promised to obey God's word yet it was more than they were able to perform for they often disobeyed God's Voice which being a breach of the Condition the Covenant was void and God not their King by Contract It is complained by God They have rejected me that I should reign over them but it is not said according to their Contract for I do not find that the Desiring of a King was a breach of their Contract of Covenant or disobedience to the Voice of God there is no such Law extant The People did not totally reject the Lord but in part only out of timorousness when they saw Nahash King of the Children of Ammon come against them they distrusted that God would not suddenly provide for their Deliverance as if they had had always a King in readiness to go up presently to fight for them This Despair in them who had found so many miraculous deliverances under Gods Government was that which offended the Lord so highly they did not desire an Alteration of Government and to cast off God's Laws but hoped for a certainer and speedier deliverance from danger in time of War They did not petition that they might choose their King themselves that had been a greater sin and yet if they had it had not been a total rejection of God's Reigning over them as long as they desired not to depart from the Worship of God their King and from the Obedience of his Laws I see not that the Kingdom of God was cast off by
the Election of Saul since Saul was chosen by God himself and governed according to God's Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Joshua but will have it descend to Eleazar the High-Priest Aaron's Son His Proof is God expresly saith concerning Joshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Vrim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ The Work of the High-Priest was only Ministerial not Magisterial he had no power to Command in War or to Judge in Peace only when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Breast-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Breast-plate before his face then the Priest answered him Go up or go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIVS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition J. M. abominates as being the Definition of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own Therefore there is no Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Justice and by them where not the King but the usual Judges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtail the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay J.M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17.14 When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placeret forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in
the People either to use what Form of Government they pleased or of changing it into another God saith this expresly of the Hebrews and denies it not of others Can any man find that God in this Text expresly saith that there was always a Right in the People to use what Form of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only 3. Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders only for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was anointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou commandest us we will do and whithersoever thou sendest us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Jus Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitrary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them p. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compel them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that a King according to Law makes no sort of Government and after
made since by the Law of Nature no man had any thing of his own and until Laws were made there was no Propriety according to his Doctrine Jus Humanum voluntarium latius patens he makes to be the Law of Nations which saith he by the Will of All or Many Nations hath received a power to bind he adds of Many because there is as he grants scarce any Law to be found common to all Nations besides the Law of Nature which also is wont to be called the Law of Nations being common to all Nations Nay as he confesseth often That is the Law in one part of the World which in another part of the World is not the Law of Nations By these Sentences it seems Grotius can scarce tell what to make to be the Law of Nations or where to find it Whereas he makes the Law of Nations to have a binding Power from the Will of men it must be remembred That it is not sufficient for men to have a Will to bind but it is necessary also to have a Power to bind Though several Nations have one and the same Law For instance Let it be granted that Theft is punished by Death in many Countries yet this doth not make it to be a Law of Nations because each Nation hath it but as a Natural or Civil Law of their own Country and though it have a binding Power from the Will of many Nations yet because each Nation hath but a Will and Power to bind themselves and may without prejudice consent or consulting of any Neighbour-Nation alter this Law if they find Cause it cannot properly be called the Law of Nations That which is the foundation of the Law of Nations is to have it concern such things as belong to the mutual Society of Nations among themselves as Grotius confesseth and not of such things as have no further relation than to the particular Benefit of each Kingdom For as private men must neglect their own Profit for the Good of their Country so particular Nations must sometimes remit part of their Benefit for the Good of many Nations True it is that in particular Kingdoms and Commonwealths there be Civil and National Laws and also Customs that obtain the Force of Laws But yet such Laws are ordained by some supreme Power and the Customs are examined judged and allowed by the same supreme Power Where there is no Supreme Power that extends over all or many Nations but only God himself there can be no Laws made to bind Nations but such as are made by God himself we cannot find that God made any Laws to bind Nations but only the Moral Law as for the Judicial Law though it were ordained by God yet it was not the Law of Nations but of one Nation only and fitted to that Commonwealth If any think that the Customs wherein many Nations do consent may be called the Law of Nations as well as the Customs of any one Nation may be esteemed for National Laws They are to consider That it is not the being of a Custom that makes it lawful for then all Customs even evil Customs would be lawful but it is the Approbation of the supreme Power that gives a legality to the Custom where there is no Supreme Power over many Nations their Customs cannot be made legal The Doctrine of Grotius is That God immediately after the Creation did bestow upon Mankind in general a Right over things of inferiour Nature From whence it came to pass that presently every man might snatch what he would for his own Vse and spend what he could and such an Vniversal Right was then instead of Property for what every one so snatched another could not take from him but by Injury How repugnant this Assertion of Grotius is to the Truth of Holy Scripture Mr. Selden teacheth us in his Mare Clausum saying That Adam by Donation from God Gen. 1.28 was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children and by Donation and Assignation or some kind of Cession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City This Determination of Mr. Selden's being consonant to the History of the Bible and to natural Reason doth contradict the Doctrine of Grotius I cannot conceive why Mr. Selden should afterwards affirm That neither the Law of Nature nor the Divine Law do command or forbid either Communion of all things or private Dominion but permitteth both As for the general Community between Noah and his Sons which Mr. Selden will have to be granted to them Gen. 9.2 the Text doth not warrant it for although the Sons are there mentioned with Noah in the Blessing yet it may best be understood with a Subordination or a Benediction in Succession the Blessing might truly be fulfilled if the Sons either under or after their Father enjoyed a Private Dominion it is not probable that the private Dominion which God gave to Adam and by his Donation Assignation or Cession to his Children was abrogated and a Community of all things instituted between Noah and his Sons at the time of the Flood Noah was left the sole Heir of the World why should it be thought that God would dis-inherit him of his Birth-right and make him of all the men in the World the only Tenant in Common with his Children If the Blessing given to Adam Gen. 1.28 be compared to that given to Noah and his Sons Gen. 9.2 there will be found a considerable Difference between those two Texts In the Benediction of Adam we find expressed a subduing of the Earth and a Dominion over the Creatures neither of which are expressed in the Blessing of Noah nor the Earth there once named it is only said The fear of you shall be upon the creatures and into your hands are they delivered then immediately it follows Every moving thing shall be meat for you as the green herb The first Blessing gave Adam Dominion over the Earth and all Creatures the latter allows Noah liberty to use the living Creatures for food here is no alteration or diminishing of his Title to a Propriety of all things but an Enlargement only of his Commons But whether with Grotius Community came in at the Creation or with Mr. Selden at the Flood they both agree it did not long continue Sed veri non est simile hujusmodi communionem diu obtinuisse is the confession of Mr. Selden It seems strange that Grotius should maintain that Community of all things should be by the Law of Nature of which God is the Author and yet such Community should not be able to continue Doth it not derogate from the Providence of God Almighty to ordain a Community which
common Good Another Doctrine of Grotius is That the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth That the People may chuse what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. cap. 3. Also That the People chusing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private Men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiors is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us He rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition That in some places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion That People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right And you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this That the People may grant away their Power without retaining any part But what is this to what the People have done For though the People may give away their Power without reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his favour the point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged That in all presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings part who are in possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the Peoples labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an instant without any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius That although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implied that it was upon condition to be well governed and that the Non-performance of that implied Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said That the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected That he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be That by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say That it is by any necessity of the Law of Nature or by any positive Law of God he teacheth That non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth only approve it ut humanum and humano modo He tells us further That Populus potest eligere qualem vult gubernationis formam ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they may make temporary Kings as Directors and Protectors jus
quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his qui potestatem revocabiliter dederunt ac proinde non idem est effectus nec jus idem Here he doth teach in plain words the Effect doth depend upon the Will of the People By this we may judge how improperly he useth the instance of a Woman that appoints her self a Husband whom she must always necessarily obey since the necessity of the continuance of the VVife's obedience depends upon the Law of God which hath made the Bond of Matrimony indissolvable Grotius will not say the like for the continuance of the Subjects obedience to the Prince neither will they say that VVomen may chuse Husbands as he tells us the People may chuse Kings by giving their Husbands as little power and for as little a time as they please Next it is objected That Tutors who are set over Pupils may be removed if they abuse their power Grotius answers In Tutore hoc procedit qui superiorem habet at in Imperiis quia progressus non datur in infinitum omnino in aliqua persona aut coetu consistendum est We must stay in some one Person or in a Multitude whose faults because they have no superiour Judge above them God hath witnessed that he will have a particular care of either to revenge them if he judge it needful or to tolerate them either for Punishment or Tryal of the People It is true in Kingdoms we cannot proceed in infinitum yet we may and must go to the highest which by Grotius his Rule is the People because they first made Kings so that there is no need to stay in aliqua persona but in coetu in the People so that by his Doctrine Kings may be punished by the People but the faults of the People must be left to the Judgment of God I have briefly presented here the desperate Inconveniences which attend upon the Doctrine of the natural freedom and community of all things these and many more Absurdities are easily removed if on the contrary we maintain the natural and private Dominion of Adam to be the fountain of all Government and Propriety And if we mark it well we shall find that Grotius doth in part grant as much The ground why those that now live do obey their Governours is the Will of their Forefathers who at the first ordained Princes and in obedience to that Will the Children continue in subjection this is according to the mind of Grotius so that the Question is not Whether Kings have a fatherly Power over their Subjects but how Kings came first by it Grotius will have it that our Forefathers being all free made an Assignment of their Power to Kings the other Opinion denies any such general freedom of our Forefathers but derives the Power of Kings from the Original Dominion of Adam This natural Dominion of Adam may be proved out of Grotius himself who teacheth That generatione jus acquiritur Parentibus in Liberos and that naturally no other can be found but the Parents to whom the Government should belong and the Right of Ruling and Compelling them doth belong to Parents And in another place he hath these words speaking of the fifth Commandment Parentum nomine qui naturales sunt Magistratus etiam alios Rectores par est intelligi quorum authoritas Societatem humanam continet and if Parents be natural Magistrates Children must needs be born natural Subjects But although Grotius acknowledge Parents to be natural Magistrates yet he will have it that Children when they come to full age and are separated from their Parents are free from natural Subjection For this he offers proof out of Aristotle and out of Scripture First for Aristotle we must note he doth not teach that every separation of Children of full age is an Obtaining of liberty as if that men when they come to years might voluntarily separate themselves and cast off their natural Obedience but Aristotle speaks only of a passive Separation for he doth not say that Children are subject to Parents until they do separate but he saith until they be separated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Verb of the Passive Voice That is until by Law they be separated for the Law which is nothing else but the Will of him that hath the Power of the Supreme Father doth in many cases for the publick Benefit of Society free Children from subjection to the subordinate Parent so that the natural Subjection by such Emancipation of Children is not extinguished but only assumed and regulated by the Parent paramount Secondly Grotius cites Numb 30. to prove that the power of the Fathers over the Sons and Daughters to dissolve their Vows was not perpetual but during the time only whilst the Children were part of the Fathers Family But if we turn to the Chapter we may find that Grotius either deceives himself or us for there is not one word in that Chapter concerning the Vows of Sons but of Daughters only being in their Father's Family and the being of the Daughter in the Father's House meaneth only the Daughter 's being a Virgin and not married which may be gathered by the Argument of the whole Chapter which taketh particular order for the Vows of VVomen of all estates First for Virgins in the third Verse Secondly for VVives in general in the sixth Verse Thirdly for VVidows and VVomen divorced in the ninth Verse There is no Law for Virgins out of their Father's Houses we may not think they would have been omitted if they had been free from their Fathers we find no freedom in the Text for VVomen till after Marriage And if they were married though they were in their Father's Houses yet the Fathers had no power of their Vows but their Husbands If by the Law of Nature departure from the Father's House had emancipated Children why doth the Civil Law contrary to the Law of Nature give power and remedy to Fathers for to recover by Action of Law their Children that depart or are taken away from them without their consent Without the consent of Parents the Civil Law allows no emancipation Concerning Subjection of Children to Parents Grotius distinguisheth three several times The first is the time of Imperfect Judgment The second is the time of Perfect Judgment but whilst the Son remains part of the Father's Family The third is the time after he hath departed out of his Father's Family In the first time he saith All the actions of Children are under the dominion of the Parents During the second time when they are of the age of mature Judgment they are under their Father's command in those actions only which are of moment for their Parents Family In other actions the Children have a power or moral faculty of doing but they are bound in those
cap. 5. If Subjection be the Gift of the People how can Supreme Power pleno Jure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of life as that because they can find no other ways to defend themselves or because they are so pressed with poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War only which reduceth a People to such terms of extremity as compels them to an absolute Abrenunciation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Soveraignty and not the free Gift of the People who cannot otherwise chuse but give away that Power which they cannot keep Thus upon the reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Just War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Justice Justitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full Right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith That all Kings are not made by the People which may be sufficiently understood by the Example of a Father of a Family receiving Strangers under the Law of Obedience In both these passages we have a close and curt acknowledgment That a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle That Dominion came in by the Will of the People and so consequently to overthrow his Vsufructuary Kings of whom I am next to speak Grotius saith That the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And That men of their own accord came together into Civil Society from whence springs Civil Power and the People may chuse what Form of Government they please Upon these Suppositions he concludes That Kings elected by the People have but an Vsufructuary Right that is a Right to take the profit or fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Vsufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Vsufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Vsufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the part and Duty of a King to govern and he hath a Right so to do and to that end Supreme Power is given unto him the taking of the profit or making use of the Patrimony of the Crown is but as a means only to enable him to perform that work of Government Besides Grotius will not only have an elected King but also his lawful Successors to have but an Vsufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no power to alienate it for he supposeth the primary VVill of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delatâ sunt concedo non esse praesumendum eam fuisse Populi voluntatem aut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People For he saith The Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Vnum quiddam and in it self indivisible ye he bsaith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to
it to one kind that is to Monarchy or the Government of one alone and the determination of it to the individual person and line of Adam are all three Ordinances of God Neither Eve nor her Children could either limit Adams power or joyn others with him in the Government and what was given unto Adam was given in his person to his posterity This paternal Power continued Monarchical to the Flood and after the Flood to the confusion of Babel when Kingdoms were first erected planted or scattered over the face of the World we find Gen. 10.11 it was done by Colonies of whole Families over which the prime Fathers had supreme power and were Kings who were all the Sons or Grand-children of Noah from whom they derived a fatherly and regal Power over their Families Now if this supreme Power was setled and founded by God himself in the Fatherhood how is it possible for the people to have any right or title to alter and dispose of it otherwise What Commission can they shew that gives them power either of Limitation or Mixture It was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the acts of his will and as in him so in all others that have supreme Power as appears by the judgment and speech of the people to Joshuah when he was supreme Governour these are their words to him All that thou commandest us we will do whosoever he be that doth rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death We may not say that these were evil Councellours or flattering Courtiers of Joshuah or that he himself was a Tyrant for having such arbitrary power Our Author and all those who affirm that power is conveyed to persons by publick consent are forced to confess that it is the fatherly power that first enables a people to make such conveyance so that admitting as they hold that our Ancestors did at first convey power yet the reason why we now living do submit to such power is for that our Forefathers every one for himself his family and posterity had a power of resigning up themselves and us to a supreme Power As the Scripture teacheth us That supreme Power was originally in the Fatherhood without any limitation so likewise Reason doth evince it that if God ordained that Supremacy should be that then Supremacy must of necessity be unlimited for the power that limits must be above that power which is limited if it be limited it cannot be supreme so that if our Author will grant supreme Power to be the Ordinance of God the supreme Power will prove it self to be unlimited by the same Ordinance because a supreme limited Power is a contradiction The Monarchical Power of Adam the Father of all flesh being by a general binding Ordinance setled by God in him and his posterity by right of fatherhood the form of Monarchy must be preferred above other forms except the like Ordinance for other forms can be shewed neither may men according to their relations to the form they live under to their affections and judgments in divers respects prefer or compare any other form with Monarchy The point that most perplexeth our Author and many others is that if Monarchy be allowed to be the Ordinance of God an absurdity would follow that we should uncharitably condemn all the Communities which have not that form for violation of Gods Ordinance and pronounce those other Powers unlawful If those who live under a Monarchy can justifie the form they live under to be Gods Ordinance they are not bound to forbear their own justification because others cannot do the like for the form they live under let others look to the defence of their own Government if it cannot be proved or shewed that any other form of Government had ever any lawful beginning but was brought in or erected by Rebellion must therefore the lawful and just obedience to Monarchy be denied to be the Ordinance of God To proceed with our Author in the 3 d. page he saith The Higher Power is Gods Ordinance That it resideth in One or more in such or such a way is from humane designment God by no word binds any people to this or that form till they by their own act bind themselves Because the power and consent of the People in Government is the burden of the whole Book and our Author expects it should be admitted as a magisterial postulation without any other proof than a naked supposition and since others also maintain that originally Power was or now is in the People and that the first Kings were chosen by the People they may not be offended if they be asked in what sence they understand the word People because this as many other words hath different acceptions being sometimes taken in a larger otherwhile in a stricter sence Literally and in the largest sence the word People signifies the whole multitude of mankind but figuratively and synecdochically it notes many times the major part of a multitude or sometimes the better or the richer or the wiser or some other part and oftentimes a very small part of the People if there be no other apparent opposite party hath the name of the People by presumption If they understand that the entire multitude or whole People have originally by nature Power to chuse a King they must remember that by their own principles and rules by nature all mankind in the World makes but one People who they suppose to be born alike to an equal freedom from Subjection and where such freedom is there all things must of necessity be common and therefore without a joynt consent of the whole People of the World no one thing can be made proper to any one man but it will be an injury and an usurpation upon the Common right of all others From whence it follows that natural freedom being once granted there cannot be any one man chosen a King without the universal consent of all the People of the world at one instant nemine contradicente Nay if it be true that nature hath made all men free though all mankind should concur in one vote yet it cannot seem reasonable that they should have power to alter the law of nature for if no man have power to take away his own life without the guilt of being a murtherer of himself how can any people confer such a power as they have not themselves upon any one man without being accessories to their own deaths and every particular man become guilty of being felo de se If this general signification of the word People be disavowed and men will suppose that the People of particular Regions or Countries have power and freedom to chuse unto themselves Kings then let them but observe the consequence Since nature hath not distinguished the habitable World into Kingdoms nor determined what part of a People shall
the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief Fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1.2 where Solomon speaks to All Israel that is to the Captains the Judges and to every Governour the CHIEF OF THE FATHERS and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel 1 King 8.1 and the 2 Chr. 5.2 If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their People or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the other subject unto him every man by nature is a King or a Subject the obedience which all Subjects yield to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon God's providence who only hath right to give and take away Kingdoms and thereby to adopt Subjects into the obedience of another fatherly power according to that of Arist 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Monarchy or Kingdom will be a fatherly government Ethic. l. 8. c. 12. However the natural freedom of the People be cried us as the sole means to determine the kind of Government and the Governours yet in the close all the favourers of this opinion are constrained to grant that the obedience which is due to the fatherly Power is the true only cause of the Subjection which we that are now living give to Kings since none of us gave consent to Government but only our Fore-fathers act and consent hath concluded us Whereas many confess that Government only in the abstract is the ordinance of God they are not able to prove any such ordinance in the Scripture but only in the fatherly power and therefore we find the Commandment that enjoyns obedience to Superiours given in the terms of Honour thy Father so that not only the Power or right of Government but the form of the power of governing and the person having that power are all the ordinance of God the first Father had not only simply power but power Monarchical as he was a Father immediately from God For by the appointment of God as soon as Adam was created he was Monarch of the World though he had no Subjects for though there could not be actual Government until there were Subjects yet by the right of nature it was due to Adam to be Governour of his posterity though not in Act yet at least in habit Adam was a King from his Creation And in the state of innocency he had been Governour of his Children for the integrity or excellency of the Subjects doth not take away the order or eminency of the Governour Eve was subject to Adam before he sinned the Angels who are of a pure nature are subject to God which confutes their saying who in disgrace of civil Government or power say it was brought in by sin Government as to coactive power was after sin because coaction supposeth some disorder which was not in the state of innocency But as for directive power the condition of humane nature requires it since civil Society cannot be imagined without power of Government for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done yet things indifferent that depended meerly on their free will might be directed by the power of Adam's command If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was we may find the division of the Earth into distinct Kingdoms and Countries by several families whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right and for the preservation of this power and right in the Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom as appears by the words of the Text Gen. 10. These are the Families of the Sons of Noah after their generations in their Nations and by these were the Nations divided in the Earth after the floud Every one after HIS TONGUE AFTER THEIR FAMILIES in their Nations The Kings of England have been graciously pleased to admit and accept the Commons in Parliament as the Representees of the Kingdom yet really and truly they are not the representative body of the whole Kingdom The Commons in Parliament are not the representative body of the whole Kingdom they do not represent the King who is the head and principal member of the Kingdom nor do they represent the Lords who are the nobler and higher part of the body of the Realm and are personally present in Parliament and therefore need no representation The Commons only represent a part of the lower or inferior part of the body of the People which are the Free-holders worth 40 s. by the year and the Commons or Free-men of Cities and Burroughs or the major part of them All which are not one quarter nay not a tenth part of the Commons of the Kingdom for in every Parish for one Free-holder there may be found ten that are no Freeholders and anciently before Rents were improved there were nothing near so many Free-holders of 40 s. by the year as now are to be found The scope and Conclusion of this discourse and Argument is that the people taken in what notion or sense soever either diffusively collectively or representatively have not nor cannot exercise any right or power of their own by nature either in chusing or in regulating Kings But whatsoever power any people
a primity of share in the supreme Power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us The Houses of Parliament sure have two parts of the greatest legislative Authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The Soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty Title Therefore in the third place he resolves us That to salve all a power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First A Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supreme Power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law only thus he is brought from the legislative to the gubernative or executive Power only nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supreme power into Legislative and Gubernative doth now divide it into Legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of Power but are we sure he may enjoy this It seems our Author is not confident in this neither and some others do deny it him our Author speaking of the Government of this Kingdom saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty Title certain of no Power at all The power of chusing Officers only is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take Accompts and indeed in all popular Governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the only Subject in a Kingdom or the only man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may some time or other perhaps govern according to the Laws only the King can be no Officer but to chuse Officers his Subjects may all govern but he may not Next I cannot see how in true sense our Author can say his Monarch is the head and fountain of Power since his Doctrine is That in a limited Monarchy the publick Society by original Constitution confer on one man power is not then the publick Society the head and fountain of Power and not the King Again when he tells us of his Monarch That both the other States as well conjunctim as divisim be his sworn Subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons He without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his Judges in Courts of Justice only that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the supreme Power And 3. As to this third particular The power of Convocating such persons they are both so far from making a Monarch that they are the only way to make him none by chusing and calling others to share in the supreme Power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the supreme Power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truly a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing only a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person make the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Judge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applied It is a case beyond the possible provision of such a Government of this question there is no legal Judge The accusing side must make it evident to every mans Conscience The Appeal must be to the Community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry than Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to inquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because
I find our Author altogether insists upon a rational way of justifying his opinion No man I think will deny but that Aristotle was sufficiently curious in searching out the several forms of Commonwealths and Kingdoms yet I do not find that he ever so much as dreamed of either a limited or mixed Monarchy Several other sorts of Monarchies he reckons up in the Third Book of his Politicks he spends three whole Chapters together upon the several kinds of Monarchy First in his fourteenth Chapter he mentions four kinds of Monarchy The Laconick or Lacedemonian The Barbarick The Aesymnetical The Heroick The Laconick or Lacedemonian King saith he had only Supreme Power when he was out of the bounds of the Lacedemonian Territories then he had absolute Power his Kingdom was like to a perpetual Lord General of an Army The Barbarick King saith Aristotle had a Power very near to Tyranny yet they were lawful and Paternal because the Barbarians are of a more servile nature than the Grecians and the Asiaticks than the Europeans they do willingly without repining live under a Masterly Government yet their Government is stable and safe because they are Paternal and lawful Kingdoms and their Guards are Royal and not Tyrannical for Kings are guarded by their own Subjects and Tyrants are guarded by Strangers The Aesymnetical King saith Aristotle in old time in Greece was an Elective Tyrant and differed only from the Barbarian Kings in that he was Elective and not Paternal these sorts of Kings because they were Tyrannical were Masterly but because they were over such as voluntarily Elected them they were Regal The Heroick were those saith Aristotle which flourished in the Heroical times to whom the People did willingly obey and they were Paternal and lawful because these Kings did deserve well of the multitude either by teaching them Arts or by Warring for them or by gathering them together when they were dispersed or by dividing Lands amongst them these Kings had supreme Power in War in Sacrifices in Judicature These four sorts of Monarchy hath Aristotle thus distinguished and after sums them up together and concludes his Chapter as if he had forgot himself and reckons up a fifth kind of Monarchy which is saith he When one alone hath Supreme power of all the rest for as there is a domestical Kingdom of one House so the Kingdom of a City or of one or many Nations is a Family These are all the sorts of Monarchy that Aristotle hath found out and he hath strained hard to make them so many first for his Lacedemonian King himself confesseth that he was but a kind of Military Commander in War and so in effect no more a King than all Generals of Armies And yet this No-king of his was not limited by any Law nor mixed with any Companions of his Government when he was in the Wars out of the Confines of Lacedaemon he was as Aristotle stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of full and absolute Command no Law no Companion to govern his Army but his own will Next for Aristotle's Aesymnetical King it appears he was out of date in Aristotle's time for he saith he was amongst the ancient Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristotle might well have spared the naming him if he had not wanted other sorts for the honour of his own Nation for he that but now told us the Barbarians were of a more servile nature than the Grecians comes here and tells us That these old Greek Kings were Elective Tyrants The Barbarians did but suffer Tyrants in shew but the old Grecians chose Tyrants indeed which then must we think were the greater slaves the Greeks or the Barbarians Now if these sorts of Kings were Tyrants we cannot suppose they were limited either by Law or joyned with Companions Indeed Aristotle saith some of these Tyrants were limited to certain times and actions for they had not all their Power for term of life nor could meddle but in certain businesses yet during the time they were Tyrants and in the actions whereto they were limited they had absolute Power to do what they list according to their own will or else they could not have been said to be Tyrants As for Aristotle's Heroick King he gives the like note upon him that he did upon the Aesymnet that he was in old time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Heroick times The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms was only the means by which the first Kings obtained their Kingdoms and not the manner of Government for in that they were as absolute as other Kings were without either limitation by Law or mixture of Companions Lastly as for Aristotle's Barbarick sort of Kings since he reckoned all the World Barbarians except the Grecians his Barbarick King must extend to all other sorts of Kings in the World besides those of Greece and so may go under Aristotle's fifth sort of Kings which in general comprehends all other sorts and is no special form of Monarchy Thus upon a true account it is evident that the five several sorts of Kings mentioned by Aristotle are at the most but different and accidental means of the first obtaining or holding of Monarchies and not real or essential differences of the manner of Government which was always absolute without either limitation or mixture I may be thought perhaps to mistake or wrong Aristotle in questioning his diversities of Kings but it seems Aristotle himself was partly of the same mind for in the very next Chapter when he had better considered of the point he confessed That to speak the truth there were almost but two sorts of Monarchies worth the considering that is his first or Laconick sort and his fifth or last sort where one alone hath supreme Power over all the rest thus he hath brought his five sorts to two Now for the first of these two his Lacedemonian King he hath confessed before that he was no more than a Generalissimo of an Army and so upon the matter no King at all and then there remains only his last sort of Kings where one alone hath the supreme Power And this in substance is the final resolution of Aristotle himself for in his sixteenth Chapter where he delivers his last thoughts touching the kinds of Monarchy he first dischargeth his Laconick King from being any sort of Monarchy and then gives us two exact rules about Monarchy and both these are point blank against limited and mixed Monarchy therefore I shall propose them to be considered of as concluding all Monarchy to be absolute and arbitrary 1. The one Rule is That he that is said to be a King according to Law is no sort of Government or Kingdom at all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. The second Rule is That a true King is he that ruled all according to his own will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This latter frees a Monarch from the mixture of partners or sharers in
will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not only among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the People there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wenceslaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Council of Nobles nor to choose any Wife without their leaves then it must be said to be a Commonweal not a Royalty and the King but only the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Counselling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot find in any Kingdom but only where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmark I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmark withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of Life and Death over their Subjects without appeal and the King to give no Office without consent of the Council There is a Chancellour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Council and from this Council to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the People or community may assume its own Power if neither of these Kingdoms have most Countries have not nay none have The People or Community in these three Realms are as absolute Vassals as any in the World the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The Election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Council in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdom such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changeable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the People are so far from liberty that he saith Divers particular Lords exact not only Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Judgments THE END THE POWER OF KINGS And in Particular OF THE KING OF ENGLAND THE POWER OF KINGS And in Particular Of the KING of ENGLAND TO Majestie or Soveraignty belongeth an Absolute Power not subject to any Law It behoveth him that is a Soveraign not to be in any sort Subject to the Command of Another whose Office is to give Laws unto his Subjects to Abrogate Laws unprofitable and in their stead to Establish other which he cannot do that is himself Subject to Laws or to Others which have Command over him And this is that which the Law saith that The Prince is acquitted from the Power of the Laws The Laws Ordinances Letters-Patents Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by Sufferance of the Prince following who had knowledge thereof If the Soveraign Prince be exempted from the Laws of his Predecessors much less shall he be bound unto the Laws he maketh Himself for a man may well receive a Law from Another man but impossible it is in Nature for to give a Law unto Himself no more than it is to Command a man's self in a matter depending of his Own Will There can be no Obligation which taketh State from the meer Will of him that promiseth the same which is a necessary Reason to prove evidently that a King cannot bind his Own Hands albeit that he would We see also in the end of all Laws these words Because it hath so Pleased us to give us to understand that the Laws of a Sovereign Prince although they be grounded upon Reason yet depend upon nothing but his meer and frank good Will But as for the Laws of God all Princes and People are unto them subject neither is it in their power to impugne them if they will not be guilty of High Treason against God under the greatness of whom all Monarchs of the world ought to bow their Heads in all fear and reverence A Question may be Whether a Prince be subject to the Laws of his Countrey that he hath
Estates But to the contrary His Majesty thereby to be much the Greater and the more Honourable seeing all His People to acknowledge Him for their Soveraign We see the principal Point of Soveraign Majesty and Absolute Power to consist principally in giving Laws unto the Subjects without their Consent It behoveth that the Soveraign Prince should have the Laws in his Power to Change and Amend them according as Occasion shall require In a Monarchy every one in particular must swear to the Observation of the Laws and their Allegiance to One Soveraign Monarch who next unto God of whom he holds his Scepter and Power is bound to No Man For an Oath carrieth always with it Reverence unto whom and in whose Name it is made as still given to a Superiour and therefore the Vassal gives such Oath unto his Lord but receives None from Him again though they be mutually Bound the One of them to the Other Trajan swore to keep the Laws although he under the name of a Soveraign Prince was exempted but never any of the Emperours before him so sware Therefore Pliny the Younger in a Panegyrical Oration speaking of the Oath of Trajan gives out A great Novelty saith he and never before heard of He sweareth by whom we swear Of these two things the one must come to pass to wit the Prince that swears to keep the Laws of his Country must either not have the Soveraignty or else become a Perjur'd Man if he should Abrogate but one Law contrary to his Oath whereas it is not only Profitable that a Prince should sometimes Abrogate some such Laws but also Necessary for him to Alter or Correct them as the infinite Variety of Places Times and Persons shall require Or if we shall say the Prince to be still a Soveraign and yet nevertheless with such conditions that he can make no Law without the Advice of his Councel or People He must also be Dispensed with by his Subjects for the Oath which he hath made for the Observation of the Laws and the Subjects again which are obliged to the Laws have also need to be Dispensed withal by their Prince for fear they should be Perjur'd So shall it come to pass that the Majesty of the Commonweal enclining now to this side now to that side sometimes the Prince sometimes the People bearing sway shall have no Certainty to rest upon which are notable Absurdities and altogether incompatible with the Majesty of Absolute Soveraignty and contrary both to Law and Reason And yet we see many men that think they see more in the matter than others will maintain it to be most Necessary that Princes should be bound by Oath to keep the Laws and Customs of their Countreys In which doing they weaken and overthrow all the Rights of Soveraign Majesty which ought to be most Sacred and Holy and confound the Soveraignty of One Soveraign Monarch with an Aristocracy or Democracy Publication or Approbation of Laws in the Assembly of the Estates or Parliament is with us of great importance for the keeping of the Laws not that the Prince cannot of himself make a Law without the Consent of the Estates or People for even all his Declarations of War Treaties of Peace Valuations of the Coin Charters to enable Towns to send Burgesses to Parliament and his Writ of Summons to both Houses to Assemble are Laws though made without the Consent of the Estates or People but it is a Courteous part to do it by the good liking of the Senate What if a Prince by Law forbid to Kill or Steal is he not Bound to obey his own Laws I say that this Law is not His but the Law of God whereunto all Princes are more straitly bound than their Subjects God taketh a stricter account of Princes than others as Solomon a King hath said whereto agreeth Marcus Aurelius saying The Magistrates are Judges over private men Princes judge the Magistrates and God the Princes It is not only a Law of Nature but also oftentimes repeated among the Laws of God that we should be Obedient unto the Laws of such Princes as it hath pleased God to set to Rule and Reign over us if their Laws be not directly Repugnant unto the Laws of God whereunto all Princes are as well bound as their Subjects For as the Vassal oweth his Oath of Fidelity unto his Lord towards and against all men except his Soveraign Prince So the Subject oweth his Obedience to his Soveraign Prince towards and against all the Majesty of God excepted who is the Absolute Soveraign of All the Princes in the World To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined For Soveraignty being of it self Indivisible How can it at one and the same time be Divided betwixt One Prince the Nobility and the People in common The first Mark of Soveraign Majesty is to be of Power to give Laws and to Command over them unto the Subjects And who should those Subjects be that should yield their Obedience to the Law if they should have also Power to make the Laws Who should He be that could Give the Law being he himself constrain'd to Receive it of them unto whom he himself Gave it So that of necessity we must conclude that as no One in particular hath the Power to make the Law in such a State that there the State must needs be Popular Never any Commonwealth hath been made of an Aristocracy and Popular Estate much less of all the Three Estates of a Commonwealth Such States wherein the Right of Soveraignty is Divided are not rightly to be called Commonweals but rather the Corruption of Commonweals as Herodotus hath most briefly but truly written Commonweals which change their State the Soveraign Right and Power of them being Divided find no rest from Civil Wars If the Prince be an Absolute Soveraign as are the true Monarchs of France of Spain of England Scotland Turkey Muscovy Tartary Persia Aethiopia India and almost of all the Kingdoms of Africk and Asia where the Kings themselves have the Soveraignty without all doubt or question not Divided with their Subjects In this case it is not lawful for any One of the Subjects in particular or all of them in general to attempt any thing either by way of Fact or of Justice against the Honour Life or Dignity of the Soveraign albeit he had committed all the Wickedness Impiety and Cruelty that could be spoke For as to proceed against Him by way of Justice the Subject hath not such Jurisdiction over his Soveraign Prince of whom dependeth all Power to Command and who may not only Revoke all the Power of his Magistrates but even in whose Presence the Power of all Magistrates Corporations Estates and Communities cease Now if it be not lawful for the Subject by the way of Justice to proceed against a King How should it then be
lawful to proceed against him by way of Fact or Force For question is not here what men are able to do by Strength and Force but what they ought of Right to do as not whether the Subject have Power and Strength but whether they have lawful Power to Condemn their Soveraign Prince The Subject is not only guilty of Treason in the highest Degree who hath Slain his Soveraign Prince but even he also which hath Attempted the same who hath given Counsel or Consent thereto yea if he have Concealed the same or but so much as Thought it Which Fact the Laws have in such Detestation as that when a man guilty of any Offence or Crime dyeth before he be condemned thereof he is deemed to have died in whole and perfect Estate except he have conspired against the Life and Dignity of his Soveraign Prince This only thing they have thought to be such as that for which he may worthily seem to have been now already judged and Condemned yea even before he was thereof Accused And albeit the Laws inflict no Punishment upon the Evil Thoughts of men but on those only which by Word or Deed break out into some Enormity yet if any man shall so much as conceit a Thought for the Violating of the Person of his Soveraign Prince although he have Attempted nothing they have yet Judged this same Thought worthy of Death notwithstanding what Repentance soever he have had thereof Lest any men should think Kings or Princes themselves to have been the Authors of these Laws so the more straitly to provide for their own Safety and Honour let us see the Laws and Examples of Holy Scripture Nabuchodonosor King of Assyria with Fire and Sword destroyed all the Country of Palestina besieged Jerusalem took it rob'd and razed it down to the ground burnt the Temple and defiled the Sanctuary of God slew the King with the greatest part of the people carrying away the rest into Captivity into Babylon caused the Image of himself made in Gold to be set up in Publick place commanding all men to Adore and Worship the same upon pain of being Burnt alive and caused them that refused so to do to be cast into a burning Furnace And yet for all that the holy Prophets Baruch 1. Jeremy 29. directing their Letters unto their Brethren the Jews then in Captivity in Babylon will them to pray unto God for the good and happy Life of Nabuchodonosor and his Children and that they might so long Rule and Reign over them as the Heavens should endure Yea even God himself doubted not to call Nabuchodonosor his Servant saying That he would make him the most Mighty Prince of the world and yet was there never a more detestable Tyrant than he who not contented to be Himself Worshipped but caused his Image also to be Adored and that upon pain of being burnt quick We have another rare Example of Saul who possessed with an evil Spirit caused the Priests of the Lord to be without just Cause slain for that one of them had received David flying from him and did what in his power was to kill or cause to be kill'd the same David a most innocent Prince by whom he had got so many Victories at which time he fell twice himself into David's Hands who blamed of his Souldiers for that he would not suffer his so mortal Enemy then in his power to be Slain being in assured Hope to have enjoyed the Kingdom after his Death he detested their Counsel saying God forbid that I should suffer the Person of a King the Lords Anointed to be violated Yea he himself defended the same King persecuting of him whenas he commanded the Souldiers of his Guard overcome by Wine and Sleep to be wakened And at such time as Saul was slain and that a Souldier thinking to do David a pleasure presented him with Saul's Head David caused the same Souldier to be Slain which had brought him the Head saying Go thou Wicked How durst thou lay thy impure Hands upon the Lords Anointed Thou shalt surely Die therefore And afterwards without all Dissimulation mourned Himself for the dead King All which is worth good consideration for David was by Saul prosecuted to Death and yet wanted not Power to have revenged Himself being become Stronger than the King besides he was the Chosen of God and Anointed by Samuel to be King and had Married the King's Daughter And yet for all that he abhorred to take upon him the Title of a King and much more to Attempt any thing against the Life or Honour of Saul or to Rebel against him but chose rather to Banish himself out of the Realm than in any sort to seek the Kings Destruction We doubt not but David a King and a Prophet led by the Spirit of God had always before his Eyes the Law of God Exod. 22.28 Thou shalt not speak Evil of thy Prince nor detract the Magistrate neither is there any thing more common in Holy Scripture than the forbidding not only to Kill or Attempt the Life or Honour of a Prince but even for the very Magistrates although saith the Scripture They be Wicked and Naught The Protestant Princes of Germany before they entred into Arms against Charles the Emperour demanded of Martin Luther if it were Lawful for them so to do or not who frankly told them That it was not Lawful whatsoever Tyranny or Impiety were pretended yet was he not therein by them Believed so thereof ensued a Deadly and most Lamentable War the End whereof was most Miserable drawing with it the Ruine of many great and noble Houses of Germany with exceeding slaughter of the Subjects The Prince whom you may justly call the Father of the Country ought to be to every man Dearer and more Reverend than any Father as one Ordained and Sent unto us by God The Subject is never to be suffered to Attempt any thing against the Prince how Naughty and Cruel soever he be lawful it is not to obey him in things contrary to the Laws of God to Flie and Hide our selves from him but yet to suffer Stripes yea and Death also rather than to Attempt any thing against his Life and Honour O how many Tyrants should there be if it should be lawful for Subjects to kill Tyrants How many good and innocent Princes should as Tyrants perish by the Conspiracy of their Subjects against them He that should of his Subjects but exact Subsidies should be then as the Vulgar People esteem him a Tyrant He that should Rule and Command contrary to the good Liking of the People should be a Tyrant He that should keep strong Guards and Garrisons for the safety of his Person should be a Tyrant He that should put to death Traitors and Conspirators against his State should be also counted a Tyrant How should good Princes be assured of their Lives if under colour of Tyranny they might be Slain by their Subjects by whom they ought to be
were before Laws The Kings of Judah and Israel not tied to Laws 2 Of Samuel's Description of a King 3 The Power ascribed to Kings in the New Testament 4 Whether Laws were invented to bridle Tyrants 5 The Benefit of Laws 6 Kings keep the Laws though not bound by the Laws 7 Of the Oaths of Kings 8 Of the Benefit of the Kings Prerogative over Laws 9 The King the Author the Interpreter and Corrector of the Common Laws 10 The King Judge in all Causes both before the Conquest and since 11 the King and his Council anciently determined Causes in the Star-Chamber 12 Of Parliaments 13 When the People were first called to Parliaments 14 The Liberty of Parliaments not from Nature but from the grace of Princes 15 The King alone makes Laws in Parliament 16 He Governs Both Houses by himself 17 Or by his Council 18 Or by his Judges CHAP I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of Mankind New Plausible and Dangerous 2 The Question stated out of Bellarmine Some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 and from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and their agreement SInce the time that School-Divinity began to flourish there hath been a common Opinion maintained as well by Divines as by divers other learned Men which affirms Mankind is naturally endowed and born with Freedom from all Subjection and at liberty to chose what Form of Government it please And that the Power which any one Man hath over others was at first bestowed according to the discretion of the Multitude This Tenent was first hatched in the Schools and hath been fostered by all succeeding Papists for good Divinity The Divines also of the Reformed Churches have entertained it and the Common People every where tenderly embrace it as being most plausible to Flesh and blood for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude who magnifie Liberty as if the height of Humane Felicity were only to be found in it never remembring That the desire of Liberty was the first Cause of the Fall of Adam But howsoever this Vulgar Opinion hath of late obtained a great Reputation yet it is not to be found in the Ancient Fathers and Doctors of the Primitive Church It contradicts the Doctrine and History of the Holy Scriptures the constant Practice of all Ancient Monarchies and the very Principles of the Law of Nature It is hard to say whether it be more erroneous in Divinity or dangerous in Policy Yet upon the ground of this Doctrine both Jesuites and some other zealous favourers of the Geneva Discipline have built a perillous Conclusion which is That the People or Multitude have Power to punish or deprive the Prince if he transgress the Laws of the Kingdom witness Parsons and Buchanan the first under the name of Dolman in the Third Chapter of his First Book labours to prove that Kings have been lawfully chastised by their Commonwealths The latter in his Book De jure Regni apud Scotos maintains A Liberty of the People to depose their Prince Cardinal Bellarmine and Calvin both look asquint this way This desperate Assertion whereby Kings are made subject to the Censures and Deprivations of their Subjects follows as the Authors of it conceive as a necessary Consequence of that former Position of the supposed Natural Equality and Freedom of Mankind and Liberty to choose what form of Government it please And though Sir John Heywood Adam Blackwood John Barclay and some others have Learnedly Confuted both Buchanan and Parsons and bravely vindicated the Right of Kings in most Points yet all of them when they come to the Argument drawn from the Natural Liberty and Equality of Mankind do with one consent admit it for a Truth unquestionable not so much as once denying or opposing it whereas if they did but Confute this first erroneous Principle the whole Fabrick of this vast Engine of Popular Sedition would drop down of it self The Rebellious Consequence which follows this prime Article of the Natural Freedom of Mankind may be my Sufficient Warrant for a modest Examination of the original Truth of it much hath been said and by many for the Affirmative Equity requires that an Ear be reserved a little for the Negative In this DISCOURSE I shall give my self these Cautions First I have nothing to do to meddle with Mysteries of State such Arcana Imperii or Cabinet Counsels the Vulgar may not pry into An implicite Faith is given to the meanest Artificer in his own Craft how much more is it then due to a Prince in the profound Secrets of Government the Causes and Ends of the greatest politique Actions and Motions of State dazle the Eyes and exceed the Capacities of all men save only those that are hourly versed in the managing Publique Affairs yet since the Rule for each men to know in what to obey his Prince cannot be learnt without a relative Knowledge of those Points wherein a Sovereign may Command it is necessary when the Commands and Pleasures of Superiors come abroad and call for an Obedience that every man himself know how to regulate his Actions or his sufferings for according to the Quality of the Thing commanded an Active or Passive Obedience is to be yielded and this is not to limit the Princes Power but the extent of the Subjects Obedience by giving to Caesar the things that are Caesar's c. Secondly I am not to question or quarrel at the Rights or Liberties of this or any other Nation my task is chiefly to enquire from whom these first came not to dispute what or how many these are but whether they were derived from the Laws of Natural Liberty or from the Grace and bounty of Princes My desire and Hope is that the people of England may and do enjoy as ample Priviledges as any Nation under Heaven the greatest Liberty in the World if it be duly considered is for a people to live under a Monarch It is the Magna Charta of this Kingdom all other shews or pretexts of Liberty are but several degrees of Slavery and a Liberty only to destroy Liberty If such as Maintain the Natural Liberty of Mankind take Offence at the Liberty I take to Examine it they must take heed that they do not deny by Retail that Liberty which they affirm by Whole-sale For if the Thesis be true the Hypothesis will follow that all men may Examine their own Charters Deeds or Evidences by which they claim and hold the Inheritance
Most of the Civilest Nations of the Earth labour to fetch their Original from some One of the Sons or Nephews of Noah which were scatterd abroad after the Confusion of Babel In this Dispersion we must certainly find the Establishment of Regal Power throughout the Kingdoms of the World It is a common Opinion that at the Confusion of Tongues there were 72 distinct Nations erected all which were not Confused Multitudes without Heads or Governors and at Liberty to chose what Governors or Government they pleased but they were distinct Families which had Fathers for Rulers over them whereby it appears that even in the Confusion God was careful to preserve the Fatherly Authority by distributing the diversity of Languages according to the diversity of Families for so plainly it appears by the Text First after the Enumeration of the Sons of Japhet the Conclusion is By these were the Isles of the Gentiles divided in their Lands every one after his Tongue after their Families in their Nations so it is said These are the Sons of Ham after their Families after their Tongues in their Countreys and in their Nations The like we read These are the Sons of Shem after their Families after their Tongues in their Lands after their Nations These are the Families of the Sons of Noah after their Generations in their Nations and by these were these Nations divided in the Earth after the Flood In this Division of the World some are of Opinion that Noah used Lots for the distribution of it others affirm he sayled about the Mediterranean Sea in Ten years and as he went about appointed to each Son his part and so made the Division of the then known World into Asia Africa and Europe according to the number of his Sons the Limits of which Three Parts are all found in that Midland Sea 6 But howsoever the manner of this Division be uncertain yet it is most certain the Division it self was by Families from Noah and his Children over which the Parents were Heads and Princes Amongst these was Nimrod who no doubt as Sir Walter Raleigh affirms was by good Right Lord or King over his Family yet against Right did he enlarge his Empire by seizing violently on the Rights of other Lords of Families And in this sense he may be said to be the Author and first Founder of Monarchy And all those that do attribute unto him the Original Regal Power do hold he got it by Tyrany or Usurpation and not by any due Election of the People or Multitude or by any Faction with them As this Patriarchal Power continued in Abraham Isaac and Jacob even until the Egyptian Bondage so we find it amongst the Sons of Ismael and Esau It is said These are the Sons of Ismael and these are their Names by their Castles and Towns Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their Families and their Places by their Nations 7 Some perhaps may think that these Princes and Dukes of Families were but some petty Lords under some greater Kings because the number of them are so many that their particular Territories could be but small and not worthy the Title of Kingdoms but they must consider that at first Kings had no such large Dominions as they have now adays we find in the time of Abraham which was about 300 years after the Flood that in a little corner of Asia 9 Kings at once met in Battail most of which were but Kings of Cities apiece with the adjacent Territories as of Sodom Gomorrha Shinar c. In the same Chapter is mention of Melchisedeck King of Salem which was but the City of Jerusalem And in the Catalogue of the Kings of Edom the Names of each King's City is recorded as the only Mark to distinguish their Dominions In the Land of Canaan which was but a small circuit Joshua destroyed thirty one Kings and about the same time Adonibeseck had 70 Kings whose hands and toes he had cut off and made them feed under his Table A few years after this 32 Kings came to Benhadad King of Syria and about 70 Kings of Greece went to the Wars of Troy Caesar found more Kings in France than there be now Princes there and at his sailing over into this Island he found four Kings in our County of Kent These heaps of Kings in each Nation are an Argument their Territories were but small and strongly confirms our Assertion that Erection of Kingdoms came at first only by Distinction of Families By manifest Footsteps we may trace this Paternal Government unto the Israelites coming into Egypt where the Exercise of Supream Partriarchal Jurisdiction was intermitted because they were in subjection to a stronger Prince After the Return of these Israelites out of Bondage God out of a special Care of them chose Moses and Joshua successively to govern as Princes in the place and stead of the Supream Fathers and after them likewise for a time he raised up Judges to defend his People in time of Peril But when God gave the Israelites Kings he reestablished the Antient and Prime Right of Lineal Succession to Paternal Government And whensoever he made choice of any special Person to be King he intended that the Issue also should have benefit thereof as being comprehended sufficiently in the Person of the Father although the Father only was named in the Graunt 8. It may seem absurd to maintain that Kings now are the Fathers of their People since Experience shews the contrary It is true all Kings be not the Natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the Natural Parents of the whole People and in their Right succeed to the Exercise of Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers And therefore we find that God told Cain of his Brother Abel His Desires shall be subject unto thee and thou shalt rule over him Accordingly when Jacob bought his Brother's Birth-right Isaac blessed him thus Be Lord over thy Brethren and let the Sons of thy Mother bow before thee As long as the first Fathers of Families lived the name of Patriarchs did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and only the Right of the Father descends to the true Heir then the Title of Prince or King was more significant to express the Power of him who succeeds only to the Right of that Fatherhood which his Ancestors did Naturally enjoy by this means it comes to pass that many a Child by succeeding a King hath the Right of a Father over many a Gray-headed Multitude and hath the Title of Pater Patriae 9. It may be demanded what becomes of the Right of Fatherhood in Case
of his Posterity This Assertion is confuted point-blank by Bellarmine who expresly affirmeth That the first Parents ought to have been Princes of their Posterity And until Suarez bring some Reason for what he saith I shall trust more to Bellarmine's Proofs than to his Denials 5. But let us Condescend a while to the Opinion of Bellarmine and Suarez and all those who place Supreme power in the Whole People and ask them if their meaning be That there is but one and the same power in all the people of the World so that no power can be granted except all the Men upon the Earth meet and agree to choose a Governour An Answer is here given by Suarez That it is scarce possible nor yet expedient that All Men in the World should be gathered together into One Community It is likelier that either never or for a very short time that this power was in this manner in the whole Multitude of Men collected but a little after the Creation men began to be divided into several Commonwealths and this distinct power was in each of them This Answer of Scarce possible nor yet Expedient It is likelier begets a new doubt how this distinct power comes to each particular Community when God gave it to the whole Multitude only and not to any particular Assembly of Men. Can they shew or prove that ever the whole Multitude met and divided this power which God gave them in Gross by breaking into parcels and by appointing a distinct power to each several Common-wealth Without such a Compact I cannot see according to their own Principles how there can be any Election of a Magistrate by any Commonwealth but by a meer Usurpation upon the priviledge of the whole World If any think that particular Multitudes at their own Discretion had power to divide themselves into several Commonwealths those that think so have neither Reason nor Proof for so thinking and thereby a Gap is opened for every petty Factious Multitude to raise a New Commonwealth and to make more Commonweals than there be Families in the World But let this also be yielded them That in each particular Commonwealth there is a Distinct Power in the Multitude Was a General Meeting of a Whole Kingdom ever known for the Election of a Prince Is there any Example of it ever found in the Whole World To conceit such a thing is to imagine little less than an Impossibility And so by Consequence no one Form of Government or King was ever established according to this supposed Law of Nature 6. It may be answered by some That if either the Greatest part of a Kingdom or if a smaller part only by Themselves and all the Rest by Proxy or if the part not concurring in Election do after by a Tacit Assent ratifie the Act of Others That in all these Cases it may be said to be the Work of the whole Multitude As to the Acts of the Major part of a Multitude it is true that by Politick Humane Constitutions it is oft ordained that the Voices of the most shall over-rule the Rest and such Ordinances bind because where Men are Assembled by an humane Power that power that doth Assemble them can also Limit and Direct the manner of the Execution of that Power and by such Derivative Power made known by Law or Custom either the greater part or two Thirds or Three parts of Five or the like have power to oversway the Liberty of their Opposites But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no Inferiour Power can alter limit or diminish no One Man nor a Multitude can give away the Natural Right of another The Law of Nature is unchangeable and howsoever One Man may hinder Another in the Use or Exercise of his Natural Right yet thereby No Man loseth the Right of it self for the Right and the Use of the Right may be distinguished as Right and Possession are oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power to over rule the Rest of the Multitude It must follow that the Acts of Multitudes not Entire are not Binding to All but only to such as Consent unto them 7. As to the point of Proxy it cannot be shewed or proved That all those that have been Absent from Popular Elections did ever give their Voices to some of their Fellows I ask but one Example out of the History of the whole World Let the Commonweal be but named wherever the Multitude or so much as the Greatest part of it consented either by Voice or by Procuration to the Election of a Prince The Ambition sometimes of One Man sometimes of Many or the Faction of a City or Citizens or the Mutiny of an Army hath set up or put down Princes but they have never tarried for this pretended Order by proceeding of the whole Multitude Lastly if the silent Acceptation of a Governour by part of the People be an Argument of their Concurring in the Election of him by the same Reason the Tacit Assent of the whole Commonwealth may be maintained From whence it follows that every Prince that comes to a Crown either by Succession Conquest or Vsurpation may be said to be Elected by the People which Inference is too ridiculous for in such Cases the People are so far from the Liberty of Specification that they want even that of Contradiction 8. But it is in vain to argue against the Liberty of the People in the Election of Kings as long as men are perswaded that Examples of it are to be found in Scripture It is fit therefore to discover the Grounds of this Errour It is plain by an Evident Text that it is one thing to choose a King and another thing to set up a King over the People this latter power the Children of Israel had but not the former This distinction is found most evident in Deut. 17.15 where the Law of God saith Him shalt thou set King over thee whom the Lord shall choose so God must Eligere and the People only do Constituere Mr. Hooker in his Eight Book of Ecclesiastical Policy clearly expounds this Distinction the words are worthy the citing Heaps of Scripture saith he are alledged concerning the Solemn Coronation or Inauguration of Saul David Solomon and others by Nobles Ancients and the people of the Commonwealth of Israel as if these Solemnities were a kind of Deed whereby the Right of Dominion is given which strange untrue and unnatural conceits are set abroad by Seed-men of Rebellion only to animate unquiet Spirits and to feed them with possibilities of Aspiring unto the Thrones if they can win the Hearts of the People whatsoever Hereditary Title any other before them may have I say these unjust and insolent Positions I would not mention were it not thereby to
know that such Mischiefs are unavoidable and of necessity do follow all Democratical Regiments and the Reason is given because the Nature of all People is to desire Liberty without Restraint which cannot be but where the Wicked bear Rule and if the People should be so indiscreet as to advance Vertuous Men they lose their Power for that Good Men would favour none but the Good which are always the fewer in Number and the Wicked and Vicious which is still the Greatest Part of the People should be excluded from all Preferment and in the end by little and little Wise Men should seize upon the State and take it from the People I know not how to give a better Character of the People than can be gathered from such Authors as lived amongst or near the Popular States Thucydides Xenophon Livy Tacitus Cicero and Salust have set them out in their Colours I will borrow some of their Sentences There is nothing more uncertain than the People their Opinions are as variable and sudden as Tempests there is neither Truth nor Judgment in them they are not led by Wisdom to judg of any thing but by Violence and Rashness nor put they any Difference between things True and False After the manner of Cattel they follow the Herd that goes before they have a Custom always to favour the Worst and Weakest they are most prone to Suspitions and use to Condemn men for Guilty upon any false Suggestion they are apt to believe all News especially if it be sorrowful and like Fame they make it more in the Believing when there is no Author they fear those Evils which themselves have feigned they are most desirous of New Stirrs and Changes and are Enemies to Quiet and Rest Whatsoever is Giddy or Head-strong they account Manlike and Couragious but whatsoever is Modest or Provident seems sluggish each Man hath a Care of his Particular and thinks basely of the Common Good they look upon Approaching Mischiefs as they do upon Thunder only every Man wisheth it may not touch his own Person it is the Nature of them they must Serve basely or Domineer proudly for they know no Mean Thus do they paint to the Life this Beast with many Heads Let me give you the Cypher of their Form of Government As it is begot by Sedition so it is nourished by Arms It can never stand without Wars either with an Enemy abroad or with Friends at Home The only Means to preserve it is to have some powerful Enemies near who may serve instead of a King to Govern it that so though they have not a King amongst them yet they may have as good as a King Over them For the Common Danger of an Enemy keeps them in better Unity than the Laws they make themselves 15. Many have exercised their Wits in parallelling the Inconveniencies of Regal and Popular Government but if we will trust Experience before Speculations Philosophical it cannot be denied but this one Mischief of Sedition which necessarily waits upon all Popularity weighs down all the Inconveniences that can be found in Monarchy tho they were never so many It is said Skin for Skin yea all that a Man hath will he give for his Life and a Man will give his Riches for the ransome of his Life The way then to examine what proportion the mischiefs of Sedition and Tyranny have one to another is to enquire in what kind of Government most Subjects have lost their Lives Let Rome which is magnified for her Popularity and villified for the Tyrannical Monsters the Emperours furnish us with Examples Consider whether the Cruelty of all the Tyrannical Emperours that ever ruled in this City did ever spill a quarter of the Blood that was poured out in the last hundred Years of her glorious Commonwealth The Murthers by Tyberius Domitian and Commodus put all together cannot match that Civil Tragedy which was acted in that one Sedition between Marius and Sylla nay even by Sylla's part alone not to mention the Acts of Marius were fourscore and ten Senators put to Death fifteen Consuls two thousand and six hundred Gentlemen and a hundred thousand others This was the Heighth of the Roman Liberty Any Man might be killed that would A Favour not fit to be granted under a Royal Government The Miseries of those Licentious Times are briefly touched by Plutarch in these Words Sylla saith he fell to shedding of Blood and filled all Rome with infinite and unspeakable Murthers This was not only done in Rome but in all the Cities of Italy throughout there was no Temple of any God whatsoever no Altar in any Bodies House no Liberty of Hospital no Fathers House which was not embrued with Blood and horrible Murthers the Husbands were slain in the Wives Arms and the Children in the Mothers Laps and yet they that were slain for private Malice were nothing in respect of those that were Murthered only for their Goods He openly sold their Goods by the Cryer sitting so proudly in his Chair of State that it grieved the People more to see their Goods packt up by them to whom he gave or disposed them than to see them taken away Sometimes he would give a whole Country or the whole Revenues of certain Cities unto Women for their Beauties or to pleasant Jesters Minstrels or wicked Slaves made free And to some he would give other Mens Wives by force and make them be Married against their Wills Now let Tacitus and Suetonius be searched and see if all their cruel Emperours can match this Popular Villany in such an Universal Slaughter of Citizens or Civil Butchery God only was able to match him and over-matched him by fitting him with a most remarkable Death just answerable to his Life for as he had been the Death of many thousands of his Country-men so as many thousands of his own Kindred in the Flesh were the Death of him for he died of an Impostume which corrupted his Flesh in such sort that it turned all to Lice he had many about him to shift him continually Night and Day yet the Lice they wiped from him were nothing to them that multiplied upon him there was neither Apparel Linnen Baths Washings nor Meat it self but was presently filled with Swarms of this vile Vermine I cite not this to extenuate the Bloody Acts of any Tyrannical Princes nor will I plead in Defence of their Cruelties only in the Comparative I maintain the Mischiefs to a State to be less Universal under a Tyrant King for the Cruelty of such Tyrants extends ordinarily no further than to some particular Men that offend him and not to the whole Kingdom It is truly said by his late Majesty King James A King can never be so notoriously Vicious but he will generally favour Justice and maintain some Order except in the Particulars wherein his inordinate Lust carries him away Even cruel Domitian Dionysius the Tyrant and many others are commended by Historians for great Observers of
Justice A natural Reason is to be rendered for it It is the Multitude of People and the abundance of their Riches which are the only Strength and Glory of every Prince The Bodies of his Subjects do him Service in War and their Goods supply his present Wants therefore if not out of Affection to his People yet out of Natural Love to Himself every Tyrant desires to preserve the Lives and protect the Goods of his Subjects which cannot be done but by Justice and if it be not done the Prince's Loss is the greatest on the contrary in a Popular State evey man knows the Publick good doth not depend wholly on his Care but the Common-wealth may well enough be governed by others though he tend only his Private Benefit he never takes the Publick to be his Own Business thus as in a Family where one Office is to be done by many Servants one looks upon another and every own leaves the Business for his Fellow until it is quite neglected by all nor are they much to be blamed for their Negligence since it is an even Wager their Ignorance is as great For Magistrates among the People being for the most part Annual do always lay down their Office before they understand it so that a Prince of a Duller Understanding by Use and Experience must needs excell them again there is no Tyrant so barbarously Wicked but his own reason and sense will tell him that though he be a God yet he must dye like a Man and that there is not the Meanest of his Subjects but may find a means to revenge himself of the Injustice that is offered him hence it is that great Tyrants live continually in base fears as did Dionysius the Elder Tiberius Caligula and Nero are noted by Suetonius to have been frighted with Panick fears But it is not so where wrong is done to any Particular Person by a Multitude he knows not who hurt him or who to complain of or to whom to address himself for reparation Any man may boldly exercise his Malice and Cruelty in all Popular Assemblies There is no Tyranny to be compared to the Tyranny of a Multitude 16. What though the Government of the People be a thing not to be endured much less defended yet many men please themselves with an Opinion that though the People may not Govern yet they may partake and joyn with a King in the Government and so make a State mixed of Popular and Regal Power which they take to be the best tempered and equallest Form of Government But the Vanity of this Fancy is too evident it is a meer Impossibility or Contradiction for if a King but once admit the People to be his Companions he leaves to be a King and the State becomes a Democracy at least he is but a Titular and no Real King that hath not the Sovereignty to Himself for the having of this alone and nothing but this makes a King to be a King As for that Shew of Popularity which is found in such Kingdoms as have General Assemblies for Consultation about making Publick Laws It must be remembred that such Meetings do not share or divide the Sovereignty with the Prince but do only deliberate and advise their Supreme Head who still reserves the Absolute Power in himself for if in such Assemblies the King the Nobility and People have equal Shares in the Sovereignty then the King hath but one Voice the Nobility likewise one and the People one and then any two of these Voices should have Power to over-rule the third thus the Nobility and Commons together should have Power to make a Law to bind the King which was never yet seen in any Kingdom but if it could the State must needs be Popular and not Regal 17. If it be Unnatural for the Multitude to chuse their Governours or to Govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the Multitude may Correct or Depose their Prince if need be Surely the Unnaturalness and Injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his People either Originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof for either yet by no Law of any Nation can a Contract be thought broken except that first a Lawful Tryal be had by the Ordinary Judge of the Breakers thereof or else every Man may be both Party and Judge in his own case which is absur'd once to be thought for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Government that God hath laid upon them to judge and punish him by whom they should be judged and punished themselves Aristotle can tell us what Judges the Multitude are in their own case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Judgment of the Multitude in Disposing of the Sovereignty may be seen in the Roman History where we may find many good Emperours Murthered by the People and many bad Elected by them Nero Heliogabalus Otho Vitellius and such other Monsters of Nature were the Minions of the Multitude and set up by them Pertinax Alexander Severus Gordianus Gallus Emilianus Quintilius Aurelianus Tacitus Probus and Numerianus all of them good Emperours in the Judgment of all Historians yet Murthered by the Multitude 18. Whereas many out of an imaginary Fear pretend the Power of the People to be necessary for the repressing of the Insolencies of Tyrants wherein they propound a Remedy far worse than the Disease neither is the Disease indeed so frequent as they would have us think Let us be judged by the History even of our own Nation We have enjoyed a Succession of Kings from the Conquest now for above 600 years a time far longer than ever yet any Popular State could continue we reckon to the Number of twenty six of these Princes since the Norman Race and yet not one of these is taxed by our Historians for Tyrannical Government It is true two of these Kings have been Deposed by the People and barbarously Murthered but neither of them for Tyranny For as a learned Historian of our Age saith Edward the Second and Richard the Second were not insupportable either in their Nature or Rule and yet the People more upon Wantonness than for any want did take an unbridled Course against them Edward the Second by many of our Historians is reported to be of a Good and Vertuous Nature and not Unlearned they impute his defects rather to Fortune than either to Council or Carriage of his Affairs the Deposition of him was a violent Fury led by a Wife both Cruel and unchast and can with no better Countenance of Right be justified than may his lamentable both Indignities and Death it self Likewise the Deposition of King Richard II was a tempestuous Rage neither Led or Restrained
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel's description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oaths of Kings 8. Of the Benefit of the King's Prerogative over Laws 9. the King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavoured to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the People do subject the Exercise of it to Positive Laws But in this also they err for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the Profit of every Man in particular and of all together in general is not always one and the same and that the Publick is to be preferred before the Private And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the Mischiefs in Monarchy or else a prophetical Description only of the future ill Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy wherein it is evidently shewed that the Scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient for by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this Point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both no Remedy in the Text against Tyrants but in crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckoned by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and Inferiour Lords To serve the King in his Wars and to till his Ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiting with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Judge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant No Man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but God's Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apology for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and all that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his Words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger let none presume to search into his Deeds much less to oppose them When the Jews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the People nor advised them to stay their Payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their
Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these Words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems St. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carried a Sword Wilt thou not be afraid of the Power that is the Ruler that carrieth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And St. Paul concludes for this Cause pay you Tribute also for they are God's Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to God's Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this Place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lord's sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoyneth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to manifest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a speaking Law he cannot mean that Kings themselves are an humane Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are humane Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Grammatical Construction Him the Relative must be referred to the next Antecedent which is King besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's Meaning is in short Obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor St. Paul intended other Form of Government than only Monarchical much less any Subjection of Princes to humane Laws That familiar Distinction of the School-men whereby they subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the positive Laws of any Nation since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King which no Man says is a Law to the King 4. There want not those who Believe that the first Invention of Laws was to bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens assoon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and tho many of their Laws were very severe and bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his Pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves so the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the People 5. The reason why Laws have been also made by Kings was this when Kings were either busied with Wars or distracted with publick Cares so that every private Man could not have Access to their Persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered to him in the Tables of his Laws that so there might be no need to resort unto the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The People have the Law as a Familiar Admonisher and Interpreter of the King's Pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And 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 Common-weal doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so
much as the Natural Law of a Father which binds them to ratifie the Acts of their ForeFathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-Bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these Words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall Judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience joyn'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for Truth that Kings do swear to observe all the Laws of their Kingdom yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no further bound than 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 Error or Force or Fear induced him thereunto Or if it be hurtful or grievous in the performance Since the Laws in many Cases give the King a Prerogative above common Persons I see no Reason why he should be denied the Priviledg which the meanest of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Whether it be a Sin for a Subject to disobey the King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Humane Laws but even in Divine a thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of 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 Unlawfull in the Master because the Servant hath no Authority or Liberty to examine and judge whether his Master sin or no in so commanding For there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14.5 yet it is not fit to tie the Master to acquaint his Servant with his secret Counsels or present Necessity And in such Cases the Servant 's not going to Church becomes the Sin of the Master and not of the Servant The like may be said of the King 's 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 Commission to Judge of the Titles of Kingdoms or Causes of War nor hath any Subject Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some are afraid of the Name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it The Court of Chancery it self is but a Branch of the King's Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Jus is Summa Injuria General Pardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or make them In all Aristocraties the Nobles are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power he is but an Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all things according to his Own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he
appear before Him and His Council and determin'd a Controversy between them touching Lands contain'd in the Covenants of her Joynture Rot. Claus de an 41. Ed. 3. Henry the Fifth in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence in the Isle of Thenet in Kent took order for Sequestring the Profits till the Right were tryed as well for avoiding the breach of the Peace as for prevention of waste and spoil Rot. Patin Anno 6. Hen. 5. Henry the Sixth commanded the Justices of the Bench to stay the Arraignment of one Verney of London till they had other commandment from Him and His Council because Verney being indebted to the King and others practised to be Indicted of Felony wherein he might have his Clergy and make his Purgation of intent to defraud his Creditors 34. Hen. 6 Rot. 37. in Banco Regis Edward the Fourth and His Council in the Star-Chamber heard the Cause of the Master and Poor Brethren of S. Leonards in York complaining that Sir Huge Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plough-Land within the Counties of York Westmerland Cumberland and Lancashire Rot. Paten de Anno 8 Ed. 4. Part 3. Memb. 14. Henry the Seventh and His Council in the Star-Chamber decreed That Margery and Florence Becket should sue no further in their Cause against Alice Radley Widow for Lands in Wolwich and Plumstead in Kent for as much as the Matter had been heard first before the Council of King Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Council of the said King 1 Hen. 7. What is hitherto affirmed of the Dependency and Subjection of the Common Law to the Soveraign Prince the same may be said as well of all Statute Laws for the King is the sole immediate Author Corrector and Moderator of them also so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power which Kings have over their People by right of Father-hood but rather are an Argument to strengthen the truth of it for Evidence whereof we may in some points consider the nature of Parliaments because in them only all Statutes are made 12. Though the Name of Parliament as Mr. Cambden saith be of no great Antiquity but brought in out of France yet our Ancestors the English Saxons had a Meeting which they called The Assembly of the Wise termed in Latine Conventum Magnatum or Praesentia Regis Procerumque Prelaterumque collectorum The Meeting of the Nobility or the Presence of the King Prelates and Peers Assembled or in General Magnum Concilium or Commune Concilium and many of our Kings in elder times made use of such great Assemblies for to consult of important Affairs of State all which Meetings in a General Sense may be termed Parliaments Great are the Advantages which both the King and People may receive by a well-ordered Parliament there is nothing more expresseth the Majesty and Supream Power of a King than such an Assembly wherein all his People acknowledg him for Soveraign Lord and make all their Addresses to him by humble Petition and Supplication and by their Consent and Approbation do strengthen all the Laws which the King at their Request and by their Advice and Ministry shall ordain Thus they facilitate the Government of the King by making the Laws unquestionable either to the Subordinate Magistrates or refractory Multitude The benefit which accrews to the Subject by Parliaments is That by their Prayers and Petitions Kings are drawn many times to redress their just Grievances and are overcome by their Importunity to grant many things which otherwise they would not yield unto for the Voice of a Multitude is easilier heard Many Vexations of the People are without the knowledg of the King who in Parliament seeth and heareth his People himself whereas at other times he commonly useth the Eyes and Ears of other Men. Against the Antiquity of Parliaments we need not dispute since the more ancient they be the more they make for the Honour of Monarchy yet there be certain Circumstances touching the Forms of Parliaments which are fit to be considered First We are to remember that until about the time of the Conquest there could be no Parliaments assembled of the General States of the whole Kingdom of England because till those days we cannot learn it was entirely united into one Kingdom but it was either divided into several Kingdoms or governed by several Laws When Julius Caesar landed he found 4 Kings in Kent and the British Names of Dammonii Durotriges Belgae Attrebatii Trinobantes Iceni Silures and the rest are plentiful Testimonies of the several Kingdoms of Britains when the Romans left us The Saxons divided us into 7 Kingdoms when these Saxons were united all into a Monarchy they had always the Danes their Companions or their Masters in the Empire till Edward the Confessors Days since whose time the Kingdom of England hath continued United as now it doth But for a thousand Years before we cannot find it was entirely settled during the time of any one King's Reign As under the Mercian Law The West Saxons were confined to the Saxon Laws Essex Norfolk Suffolk and some other Places were vexed with Danish Laws The Northumbrians also had their Laws apart And until Edward the Confessor's Reign who was next but one before the Conqueror the Laws of the Kingdom were so several and uncertain that he was forced to cull a few of the most indifferent and best of them which were from him called St. Edward's Laws Yet some say that Edgar made those Laws and that the Confessor did but restore and mend them Alfred also gathered out of Mulmutius Laws such as he translated into the Saxon Tongue Thus during the time of the Saxons the Laws were so variable that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom 13 A second Point considerable is Whether in such Parliaments as was in the Saxon's times the Nobility and Clergy only were of those Assemblies or whether the Commons were also called Some are of Opinion that though none of the Saxon Laws do mention the Commons yet it may be gathered by the word Wisemen the Commons are intended to be of those Assemblies and they bring as they conceive probable arguments to prove it from the Antiquity of some Burroughs that do yet send Burgesses and from the Proscription of those in Ancient Demesne not to send Burgesses to Parliament If it be true that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns yet it may be doubted whether other Kingdoms had the same usage but sure it is that during the Heptarchy the People could not Elect any Knights of the Shire because England was
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by
that is not charged with the keeping of a King must perpetually be at the Charge of paying and keeping of an Army These brief Observations upon Aristotle's perfect Forms of Government may direct what to judge of those corrupted or imperfect Forms which he mentions for rectum est index sui obliqui and he reckons them to be all one in Matter and Form and to differ only in their End the end of the Perfect Forms being for the Good of the Governed and of the Imperfect for the benefit only of the Governours Now since Aristotle could not tell how to define or describe his Right or Perfect Forms of Government it cannot be expected he can satisfie us concerning those he calls Imperfect yet he labours and bestirs himself mainly in the business though to little purpose for howsoever the Title of his Book be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of Politicks and that he mentions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for a special Form of Government which hath the common name of a Policy yet when he comes to dispute in particular of Government he argues only about Democracies and Oligarchies and therein he is copious because only those which he calls corrupt Forms of Governments were common in Greece in his days As for an Aristocracy or a Policy which he mentions they are only Speculative Notions or Airy Names invented to delude the World and to perswade the People that under those quaint Terms there might be found some subtile Government which might at least equal if not excel Monarchy And the Inventers of those fine Names were all but Rebels to Monarchy by Aristotle's confession where he saith the first Commonweals of Greece after Kings were left were made of those that waged War lib. 4. c. 13. As Aristotle is irresolute to determine what are truly Perfect Aristocracies and Policies so he is to seek in describing his imperfect Forms of Government as well Oligarchies as Democracies and therefore he is driven to invent several sorts of them and to confound himself with Subdivisions we will alledge some of his words The cause why there be many kinds of Commonweals is for that there are many parts of every City Sometimes all these parts are in a Commonweal sometimes more of them sometimes fewer whence it is manifest that there are many Commonweals differing from each other in kind because the parts of them differ after the same manner For a Commonweal is the Order of Magistrates distributed either according to the Power of them that are partakers of it or according to some other common equality belonging to Poor and Rich or some other thing common to both It is therefore necessary that there be so many Commonweals as there are Orders according to the excellencies and differences of Parts But it seemeth principally there are but two chief kinds of Commonweals the Democracy and the Oligarchy for they make the Aristocracy a branch of Oligarchy as if it were a kind of Oligarchy and that other which is properly a Policy to be a branch of Democracy So they are wont to esteem of Commonweals but it is both truer and better that there being two right Forms or one that all the other be transgressions Here we find Aristotle of several minds sometimes he is for many Commonweals sometimes for two or sometimes for one As for his many Commonweals if he allow them according to the several parts of a City he may as well make three thousand kinds of Commonweals as three if two Artificers and three Souldiers should govern that should be one kind of Commonweal if four Husbandmen and five Merchants that would be a second sort or six Taylors and ten Carpenters a third sort or a dozen Saylors and a dozen Porters a fourth and so in infinitum for Aristotle is not resolved how many parts to make of a City or how many Combinations of those Parts and therefore in his Reckoning of them he differs from himself sometimes makes more sometimes fewer Parts and oft concluding at the end of his Accompt with caetera's and confessing that one and the same man may act several Parts as he that is a Souldier may be a Husbandman and an Artificer and in his fourth Book and fourth Chapter he seems to reckon up eight Parts of a City but in the Tail of them he misses or forgets the sixth 1. He names the Plowman 2. The Artificer 3. The Tradesman or Merchant 4. The mercenary Hireling 5. The Souldier here Aristotle falls foul upon Plato for making but four Parts of a City 1. The Weaver 2. The Plowman 3. The Taylor 4. The Carpenter Afterwards as if these were not sufficient he addeth the Smith and the Feeder of necessary Cattle the Merchant and the Ingrosser or Retailer whilest Aristotle was busie in this Reprehension of Plato he forgets himself and skips over his sixth Part of a City and names the 7. rich men 8. the Magistrates In the same Chapter he offers at another Division of the Parts of a City or Commonweal first dividing it into a Populacy and Nobility The People he divides first into Husbandmen 2. Into Artificers 3. Into Merchants or those that use Buying or Selling. 4. Into those that frequent the Seas of whom some follow the War others seek for Gain some are Carriers or Transporters others Fishermen 3. Handicraftsmen that possess so little goods that they cannot be idle 6. Those that are not free on both sides and any other such like Multitude of People The kinds of Noblemen are distinguished by Riches by Lineage by Vertue by Learning and other such like things That there may be more Parts of a Commonweal than are here numbred Aristotle confesseth or supposeth and of a Multitude of Parts and of a Multitude of Mixtures of such Parts may be made a World of Forms of Oligarchies and Democraties This Confusion of the Parts and Kinds of Commonweals drove Aristotle rather to rest upon the Division of Rich and Poor for the main parts of a Commonweal than any other The distinction of a Few and of a Multitude or the whole People might seem more proper to distinguish between an Oligarchy and a Democraty but the Truth is Aristotle looking upon the Cities of Greece and finding that in every of them even in Athens it self there were many of the People that were not allowed to be Citizens and to participate in the Government and that many times He was a Citizen in one sort of Government who was not a Citizen in another and that Citizens differed according to every Commonweal he considered that if he should place a Right in the whole People either to govern or to chuse their Form of Government or the Parties that should govern he should hereby condemn the Government of all the Cities in Greece and especially of Aristocraty which as he saith allows no Artificer to be a Citizen and besides he should thereby confute a main Principle of his own Politicks which is that some men are