and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
rate his power now encreases but that he may be so he threaten to cut their Banks and let in the Sea to drown them and their Country if they will not yeild it up to him may they not if they find they cannot resist him submit themselves to him and make the best terms they can for themselves and are they not then obliged by the Authors own Principles to continue his Subjects and yet here is no actual War or inundation but threats only to force them to this submission So that the Authors Supposition is false that no case can happen but an actual War only which can reduce a People to such terms of extremity as to compell them to an absolute abnunciation of all Soveraignity and so likewise is this consequence also which he assumes from thence then war which causeth that necessity is the prime means of extorting such Soveraignity and not the free gift of the People who cannot otherwise chuse but give away that Power which they cannot keep for they might either leave their Country or bury themselves in it But it seems the Author had forgot his Logick or else he would have remembred to distinguish between Causa sine qua non and Causa efficiens a cause which does not properly give being to a thing and yet without which it could not have been produced Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner yet the true Cause of his becoming a lawful Servant to his taker does not proceed from his conquering him but from his coming to Terms with him that he shall be dismist of his Fetters or Imprisonment upon Condition he will serve faithfully and not run away and all Moralists consider those actions they call mixt as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones though they commenced from some kind of force since in this case the Merchant might if he pleased keep his goods if he would venture his life So in many cases may a Conquered People if they have never neither by themselves or their representatives owned the Conquerer But as much as the Author quarrells at the word usufructuary Right in Grotius as too base to express the Right of Kings and as derogatory to the dignity of Supreme Majesty yet the the French are not so scruplous but in the absolutest Monarchy of Europe plainly declare that their King hath but an usufructuary right to his Kingdom and the Territories belonging thereunto or that he can any way charge them with his debts or alienate or dispose of them without the consent of the States of France See Mezeray in the reign of this King 1527. and was so solâ—mnly declared by that great Assemby des notables called by K. Francis the First to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid their sense was that Burgundy which by those Articles was to be delivered up was an inseparable Member of the Crown of which he was but the usufructuary and so could not dispose of the one any more than of the other nor was this any new opinion but as old as St. Lewis who being desired by the Emperour Frederic III. to restore the King of England his just Rights To which the said King replyed whose words I will faithfully translate as they are in Matthew Paris p. 765. Anno Dom. 1249. By the holy Cross with which I am signed I would willingly do it if my Counsel i. e. the Estates would permit it because I love the King of England as my Cosen but it were hard at this very instant of my Pilgrimage viz. for the holy land to disturb the whole body of my Kingdom by contradicting the Counsels of my Mother and all my Nobles although the Intercessors are very dear to me neither is this to make a Kingdom all one with a Ferm as the Author words it since in the civil Law it signifies not only one that barely receives the rents or profits but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner though he have not power to sell or give it away Nor I suppose will any French or English Subject unless such bigotted ones as the Author acknowledge any Forraign Prince or other Person can obtain an absolute Dominion over them by Conquest I am sure they were not of that opinion between two hundred and three hundred years agoe when the King of England brought a plausible Title into France and had it backt by almost an entire Conquest of the whole Kingdom and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris and yet after all this the French had so little Conscience as to proclame Charles the Dauphin King of France and to drive the English out of the Country and renounce their allegiance which they had sworn to our Kings Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary P. 69. to bestow Supreme power in succession But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown let us see the consequences of this Doctrine For the Crown must be of England in the nature of an absolute Fee Simple and is consequently chargeable by any act or alienable by the Testament of the King in being So that then King John had Power to make this Kingdom feudatary and tributory to the Pope and so the Pope hath still a good Title to it And since Religion with these Gentlemen diminishes nothing from the right and absoluteness of Monarchy the same King might have made over his Kingdom to the Emperor of Moroco as the Historians of those times relate he would and so the Sarracen Prince might have entred upon the non-performance of the Conditions and have turned out his Vassal and been King here himself which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms let any man consult Matthew Paris and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate Anno 1216. P. 280. that no King could give away his Kingdom without the consent of his Barons who are obliged to defend it and all the Nobility there present began to cry out at once that they would assert this Priviledge till death That no King or Brince could by his sole Will give away his Kingdom or make it tributary by which the Nobles of the Kingdom might become Slaves Nor did the English Nobility think otherwise since this was one of the causes of their taking Arms against King John Matt. Paris 1245. p. 659. 666. and afterwards in his
and if that condescent be an act of Grace doth not this condesent to a limitation come from the free determination of the Monarchs will if he either formally or virtually as the Author supposeth desert his absolute or Arbitrary power which he hath by conquest or other right Which last words of Mr. H. though I confess they are ill exprest yet I see no down right contradiction in the sence Mr. H. meant them if any man please to consult him he there says That a Monarch may either be limited by original constitution or an after condescent therefore these words the sole means of Soveraignty is the consent and fundamental contract is not meant of a limited Monarchy any more than of another but of any Soveraignty whatever So likewife though these words a secundary original constitution may seem to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to destroy each other yet as the Author explains himself you will find they do not in sense for he only supposes that a Prince who hath an absolute Arbitrary power either by succession or election finding it not so safe and easie as he conceives it would be for him if he came to new terms with his people would desert some of that despotick power and govern by let rules or Laws which he obliges himself and his Successors by Oath or some other conditions never to make or alter without the consent of his Subjects I see not why this may not in one sense be called a second original constitution for he was at first an absolute King by which was the original constitution and his coming to new Terms with them may be termed in respect of this a secundary original constitution or agreement of the government though founded upon the former old right which the Monarch had to govern as for a King by Conquest it cannot indeed in respect of him be properly called a secundary constitution since the Conquerour had no right to clame an absolute subjection from the Subjects until they submitted to him so as that they might not drive him out again if they were able until he came to some Terms with them Thus I think no sober man but will maintain that the people of England might lawfully have driven out William I. called the Conquerour supposing he had claimed by no other title but Conquest alone which when he had sworn to observe and maintain all the Laws and liberties of the people of England and had been thereupon Crown'd and received as King and had quitted his pretensions by Conquest or force and had taken the Oaths and homage of the Clergy Nobility and People they could not then without Rebellion endeavour to do And certainly had he not thought his title by Conquest not so good as the other of King Edward's Testament he would never have quitted the former and sworn to observe the Laws of his Predecessor so likewise Henry I. Mat. Paris from whom all the Kings and Queens of England have since claim'd upon his Election and Coronation for other title he had none granted a Charter whereby he renounced divers illegal practices which Flatterers may call Prerogatives which his Father and brother had exercised contrary to King Edward's Laws and their own Coronation Oaths so that here is an Example of one of the Authors absolute Monarchs who by a right of Conquest might pretend to the exercise of an arbitrary power yet renounced it and only retained so much as might serve for the well governing of his Subjects and his own security It is not therefore true which this Author affirms that this accepted of so much power as the people pleased to give him since they neither desired nor did he grant them any more but those just rights they had long before enjoyed under their former Kings before his Father's coming into England However I conceive this wise Prince was of the opinion of Theopompus King of Lacedemon Plut. in Lycurgo who when his wife upbraided him that he would leave the royal dignity to his Sons less than he found it no rather replyed he greater as more durable and therefore Plutarch in the same place ascribes the long continuance of the Lacedemonian Kingdom to the limited power of their Kings in these words ' and indeed when Envy is removed from Kings together with excess of power it followed that they had no cause to fear that which happened to the Kings of the Massenians and Argives from their Subjects But because this Author tells Mr. H. that if we should ask what proofs or examples he hath to justify his Doctrine of a limited Monarchy in the Constitution he would be as mute as a fish we will shew two or three examples of the antiquity of such limited Monarchies though they were not of the same model with those that are at this day found among the Germanes and other northern Nations descended from thence In Macedon the Kings descended of Caranus as Callisthenes says in Arrian did obtain an Empire over the Macedonians not by force but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by Law So Curtius Lib. IV. The Macedonians were used to Kingly Government but in a greater appearance of liberty than other Nations For it is certain the lives of their Subjects were not at their disposal as appears from the same Author Lib. VI. The Army by an antient custom of the Macedonians did judg of Capital causes i. e. in time of War but in peace it belonged to the People the power of their Kings signified litle unless his Authority was before of some force And this was by original constitution for we do not find that ever the Kings of Macedon altered any thing in their original constitution yet they had the Soveraignty in most things and their persons were sacred So likewise among the antient Romans where Romulus from a Captain of Volunteers became a King Dyonisius Halicar Lib. II. Tells us that after Romulus had made a speech to his Souldiers and followers to this effect that he left it to them to consider what Government they would chuse for whatsoever they pitcht upon he should submit to it and though he did think himself unworthy the Principality yet he should not refuse to obey their Commands concluding that he thought it an Honour for him to have been declared the Leader of so great a Colony and to have a City called by his name Whereupon the people after some deliberation among themselves chose him their King or limited Monarch since both the Senate and people had from the very beginning their particular shares in the Government the Senates making this great Counsel which yet were for the greater part of them chosen out of the Patricians by the Tribes Dyon Hal. Lib. 11. and Curiae with these he consulted and referred all business of lesser moment which he did not care to dispatch himself for be reserved to himself the last Appeal in causes and to be Pontifex Maximus or Cheif Priest and Preserver
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
Confessors days Since whose time the Kingdom of England hath remained as it does In which passage the Author hath discovered either a great deal of Ignorance or inadvertency in the History and Government of his Country For first he Confesses that the English Saxons had a Meeting which they called the Assembly of the Wife termed in Latine Conventus Magnatum or Praesentia Regis Procerumque Prelatorum Collectorum or in general Magnum or Commune concilium c. All which Meetings may in a general sence be termed Parliaments yet he will not allow there could be any Parliaments assembled of the general Estates of the whole Kingdom for the reason he gives us before What he means by until about the time of the Conquest I know not but this is certain that from the time of King Egbert who is reckoned the first Monarch the great Council or Wittena Gemore consisted of the General Estates of the West-Saxon-Kindom and if the whole people of England had not their Representatives there it was because they were represented by their Tributary Princes or Kings who Governed Subordinately to this Monarch until the coming of the Danes Thus the West-angles had their particular Kings in the time of King Ethelwolf St. Edmund the last King being Conquered by the Danes So likewise had the Mercians their King Beorced their last King being driven out by the same Invaders about the same time and after the Kingdom was at Peace again and the Danes in great part subdued or quiet King Alfred Re-conquering the Mercian-Kingdom gave it in Marriage to a Saxon Nobleman called Etheldred who had Married his Daughter Elsteda who was long after her Husbands Death Lady or Queen of the Mercians Rerum Anglick Scriptores post Bedam Ed Fra. p. 857. yet did these feudatory Princes always appear and make a Part in the Wittena Gemore or great Council of the Monarch thus we may find in Jugulphus that Withlafe King of the Mercians made a promise of the Lands and Liberties of the Abby of Croyland which he after confirms by his Charter in Prisentia Dominorum meorum Egberti Regis Westo-Saxoniae Athelwolwafij filij ejus coram pontificibus proceribus totius Angliae in Civitate Lundini ubi omnes Congregati sumas pro consilio capiendo contra Danicos Pyratat Littora Angliae infestantes which certainly was a great Council And that these Kings were tributary to the West Saxon Monarch the same Author tells a little further that Bertulph Brother of Witlafe succeeded his Nephew Wimund Id. p. 860 861. and was Tributary to Athelwolf King of West Saxony and by his Charter confirms the same Lands and Liberties to the said Monastery which had been granted by his Predecessors and this was done and confirmed unanimi consensu totius praesentis concilij hic apud Kingsbury Anno incar Domini 881. c. pro Regni negotis congregati and is thus subscribed Ego Olflac Pincerna Legatus Domini mei Regis Ethelwolf Filiorum suorum nomine illorum omnium Westsaxonum istum Chirographum Regis Bertulphi plurimum Confirmavi Ego Bertulphus Rex Mericorum palam omnibus prelatis Proceribus Regni mei Which shews us that besides the General Council of the whole Kingdoms these Mercian Tributary Kings had a Particular Council or Parliament of their own Kingdom without whose consent as also of their Paramount Monarch they could not part with the Lands and Royalties belonging to their Crown So likewise in the same Author Beorced King of the Mercians Anno Domini 868 confirms his Charter to the same Monastery at Snotringham coram fratribus amicis omni populo meo in obsidione Paganorum Congregatis To which likewise his supreme Monarch Elthred King of the West Saxons gives his consent and subscribes after the Bishops the like form we find in the passing of all the other Charters to this Monastery quoted by the said Author which are all of them confirmed by the King then Reigning in praesentia Archiepiscop Episcop Procerum or optimatum Regni Collectorum And before the Kingdom came to be united under one supreme King or Monarch there was also one great Council or Synod of the whole Kingdom where the chief and most powerful King or Monarch of the Heptarchy presided and in which they made their general Ecclesiastical Canons and also Civil Laws that were binding to the whole People of England and to which Persons that had been grieved or wronged by their particular Kings appealed and were righted and to this general Wittena Gemote that antient Writer Will. Malmsbuny speaking of the antient Customs and Laws of England says were made per generalem Senatum populi Conventum edictum therefore we find the first Synod or Council of Clovesho Anno Christ. 747. called by Ethelbald King of the Mercians who was then chief King or Monarch as they called him of the English Saxons and at which were present the said King with all his Princes and great Men Malm. de gest pontific as also all the Bishops of this Island but it more plainly appears in the second Council held at the same place called by Beornulf King of Mercia who presided therein Spelman Council p. 332. You will find one of the first things they did was to inquire whether any person had been unjustly dealt with or unjustly spoil'd or opprest whereupon Wulfred Arch-Bishop of Canterbury complain'd of the violence and Avarice of Kenwulf late King of the West Saxons which beingfully proved the said Council ordered Kenedrith the Abbess the daughter and Heir of the said King to make satisfaction to the said Arch-Bishop which was done accordingly out of the Lands of the said King see it at large in Spelmans Councils and Mr. Somner that Learned Antiquary in his Glossary to the decem Scriptores is clearly of opinion Spelman Council pag. 393. that this was all one with a Parliament Synodus magna Parliamentum nuncupatur So likewise the Canons of the Synode or Council of Catchyck Annol were confirmed by Offa King of the Mercians then Chief Monarch of this Island Tam Rex quam Principes sui cum senatoribus terrae decreta signo Cracis firmarunt And further that each of the Kingdoms of the Heptarchy had its particular Councils or Wittena Gemotes appears by that famous Council called by Ethelbert King of Kent about Six Years after his Reception of the Christian Religion which was called commine concilium tam Cleri quam Populi And no doubt this custom came not in with Christianity the Clergy onely here succeeding in the room of the Pogan Priests who among the Germans had always a place in their common Councils as we find in Tacitus See the passage before Cited p. Spelman Con. pag. 126. So likewise the first Laws we have extant were made by Ina King of the West Saxons Per commune concilium assensum omnium Episcoporum Principum Procerum
HONI SOIT QVI MAL Y PENSE CAROLUS SECUNDUS Dei Gratia Angl Scotiae Franciae Et Hiberniae Rex Fide Defensor etc. F. H. Van Houe Sculp Patriarcha non Monarcha THE Patriarch Unmonarch'd BEING OBSERVATIONS ON A late Treatise and divers other Miscellanies Published under the Name of Sir Robert Filmer Baronet IN WHICH The falseness of those Opinions that would make Monarchy Jure Divino are laid open AND The true Principles of Government and Property especially in our Kingdom asserted By a Lover of Truth and of his Country LONDON Printed for Richard Janeway in Queens-head-Alley in Pater-Noster-Row 1681. THE PREFACE To the READER IT may not be unknown to those that have been conversant in Books and Pamphlets published during the late unhappy times that all the Treatises except the Patriarcha which are the subject of the ensuing Observations were published at first in single Tracts without Name though they have since come out under that of Sir Robert Filmer Baronet deceased All which though I hope they might be written with an honest designe and in defence of Kingly Government and of his then Majesties lawful and just Rights then trampled upon by a domineering Faction and may contain some things useful enough to confute divers levelling Notions then too much in fashion yet whilst this Gentleman as violent men commonly do ran into the other extream and must needs assert an Absolute Monarchy Jure Divino so that no other Government can be lawfully exercised nor the least Limitations set to it without Sacriledge and diminution of that Soveraignty which is derived from no less an Original than God himself and by denying that Princes can ever be obliged by any Fundamental or after-Contracts or Concessions or by any Coronation-Oaths to abstain from the Lives Liberties or Properties of their Subjects farther than as they themselves shall think it convenient so that there can be no such thing in nature as a Tyrant I leave it to the judgment of the impartial Reader whether what this Author might designe as Physick hath not served rather to inflame the Distemper and whether he hath not by such rash and ill-grounded Assertions given too much advantage to the Enemies of Kingship to retort That since all Government was ordained by God for the good of Mankind that could never be of divine institution which would render all things to be so much the Princes Right that the Subjects can claim a Property in nothing which he shall please to take from them and that however they use them yet they still exercise but their own Royal Rights and Prerogatives So that by thus taking away all distinctions between Kings and Tyrants and between Slaves and Subjects I fear that like Rehoboam's harsh Answer to his Peoples Complaints he hath not given many of his Readers a prejudice against that Government which temper'd by known Laws I take to be the best in the World For as Superstition can never serve to advance the true Worship of God but by creating false Notions of the divine nature in mens minds or render it not as it ought to be the Object of their Love and Reverence but servile Fear so I suppose this asserting of such an unlimited Power in all Monarchs and such an entire Subjection as this Author exacts from Subjects can produce nothing but a Slavish Dread without that Reverence Esteem and Affection for their Princes Person and Government which is so necessary for the quiet of Princes and which they will have whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression according to just and known Laws And that contrary Notions of this Supreme Power are so far from setling mens minds in a sober and rational Obedience to Government that they rather make them desperate and careless who is their Master since let what change will come they are sure to be no better than Slaves as may be seen in all the Absolute Monarchies from France to China You may also consider whether most of the Arguments this Author makes use of for absolute Obedience to Vsurpers as representing the lawful Prince and Father of the People might not serve for the establishing of Oliver and the Rump-Parliament as well as a lawful Soveraign since I am sure Milton makes use of the same places of Scripture for this purpose which this Author and Salmasius do for another So that most moderate men nay the Author 's own Friends may wish that either these Treatises had never been published or at least have been left in private Studies and Book-sellers shops amongst those heaps of Pamphlets condemned to dust and oblivion since no man can imagine to what end this Patriarcha and other Tracts should come out at such a Time as they did unless the Publishers thought that these Pieces which printed apart could onely serve to ensnare the Vnderstandings of some unthinking Country-Gentleman or Windblown-Theologue could do no less being twisted into one Volume than bind the Consciences and enslave the Reasons of all his unwary Readers Since therefore short Treatises of this kind written in a gentile stile and a formal appearance of Law and Reason do more mischief among young men and those that have not leisure to look much into the grounds of this Controversie than tedious Volumes And that this Notion of the Divine and Patriarchal Right of absolute Monarchy hath obtain'd so much among some modern Church-men who cry it up as their Diana and consequently hath so much infected our Vniversities that are the Seminaries where the Youth of this Nation do commonly receive Principles both in Religion and Politicks which if they have not a mind large enough to overcome the prejudices of Education will mis-lead them as long as they live and so make them desire at least to alter that Government and give up those Priviledges which their Ancestors were so careful to preserve and deliver down to Posterity I thought my self obliged having perhaps more leisure though less parts and learning than a great many others to do God my King and Country this service as to lay open the weakness of the Reasons and the dangerous consequences of this Author's Principles And though men of greater abilities may either dispise such weak Arguments as this Author makes use of or else think it below them to spend so much time from their more useful and beneficial Employments and that indeed his Reasons are not so knotty or intricate that they require any more than honest sence and plain English to lay them open to the unprejudiced Reader yet since the Poyson hath spread so far among the men of Letters and in the Country among divers of the Gentry and Clergie I thought it not amiss to do my weak endeavour to undeceive them And in so doing I desire to be thought no other than what I really am a zealous assertor and defender of the Government establisht by Law
onely was named in the Grant P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis That it may seem absurd that Kings now are Fathers of their People since Experience shews the contrary It is true says he all Kings are not the natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People and so in their right succeed to the exercise of Supream Jurisdiction and such Heirs are not onely Lords of their own Children but of their Brethren and all others that were Subjects to their Fathers And therefore we finde that God told Cain of his brother Abel His desires shall be toward thee and thou shalt rule over him Accordingly when Jacob bought his brothers Birthright Isaac blessed him thus Be Lord over thy brethren and let the sons of thy mother bow before thee P. 20. As long as the first Fathers of Families lived the name of Patriarch did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and onely the right of the Father descended upon the true Heir then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy By this means it comes to pass that many a Child by succeeding a King hath a right of a Father over many a gray-headed Multitude and hath the Title of Pater Patriae It may be demanded What becomes of the Right of Fatherhood in case the Crown does escheat for want of an Heir whether doth it not then devolve to the People The Answer is It is but the negligence or ignorance of the People to lose the knowledge of the true Heir for an Heir there is always If Adam himself were still living and now ready to die it is certain that there is one man and but one in the world who is next Heir although the knowledge who should be that one man be quite lost P. 21. This ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supream Power is devolved to the Multitude or that they have power to rule and chuse what Rulers they please No the Kingly power in such cases escheats to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the uniting of great Families or petty Kingdoms we finde the greater Monarchies were at first erected and into such again as into their first matter many times they return again And because the dependancy of ancient Families is oft an obsure and worn-out knowledge there the wisdom of many Princes have thought fit to adopt those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enabled them or made them fit and capable of such Royal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please And he that is so elected claims not his power as a Donative from the People but as being substituted by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People P. 22. In all Kingdoms or Commonwealths in the world whether the Prince be the Supreame Father of the People or but the true Heir of such a Father p. 23. or whether he come to the Crown by usurpation of the Nobles or of the People or by any other way whatsoever or whether some few or a multitude govern the Commonwealth yet still the Authority that is in any one or in many or in all these is the onely Right and natural Authority of a Supream Father There is and always shall be continued to the end of the world a natural Right of a Supream Father over a multitude although by the secret Will of God many do at first most unjustly obtain the Exercise of it To confirm this natural Right of Regal Power we finde in the Decalogue that the Law which enjoyns Obedience to Kings is delivered in the Terms of Honour thy Father and thy Mother as if all Power were originally in the Father If Obedience to Parents be due immediately by a natural Law and Subjection to Princes but by the mediation of an humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate P. 24. If we compare Rights of a Father with those of a King we finde them all one without any difference at all but onely in the latitude or extent of them As the Father over one Family so the King as Father over many Families extends his care to preserve feed clothe instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Soveraignty tend onely to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Priviledges so that all the Duties of a King are summed up in an Vniversal Fatherly Care of his People I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words and so be the better able to judge whether I understand and answer him or not as because it contains the substance and strength of all that the Author had to say in defence of it So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it His first Argument against the natural Freedom of Mankinde is drawn from Scripture and from Bellarmine's own Concession That Adam was and consequently every other Father ought to be a Prince over his Posterity And as Adam was Lord over his Children so his Children under him had a power over their own Children suberdinately to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People So that neither the Children of Adam or any else can be free from subjection to their Parents and this subjection to Parents being the foundation of all Legal Authority by the Ordination of God himself therefore no man can be born in a state of Freedom or Equality In answer to which I shall not concern my self what Bellarmine or any other have granted but would be glad to know where and how God hath given this Absolute power to Fathers over their Children and by what Law Children are tyed to an Absolute Subjection or Servitude to
Right ceased before that of the Legatees could begin So that it seems to me at present that the power of bequeathing either the persons of men or goods was but a consequence of an absolute Propriety in things which arises from Compact in a Common-wealth as I shall hereafter prove Therefore out of this State a Will cannot bind the persons of the Children or Servants so bequeathed And for this cause we find Abraham Gen. 24. v. 2 3. binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt because they doubted whether they could oblige them to do it by their Testament But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature but proceeds purely from a continued Custom of the Kingdom or Civil Law thereof else why had not Henry VIII or Edward VI power to limit or bequeath the Crown to whom they pleased as well as William the Conquerour And to look into other Countries what now renders Women uncapable of succeeding to the Crown of France yet capable of inheriting that of England Spain and divers other Kingdoms of Europe but the Customs or particular Constitutions of the Estates of these Kingdoms which no Will or Testament can alter What else hinders the Grand Seignior that he cannot disinherit his eldest Son if he survive him Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. but the Custom of the Ottoman Empire And what is this Custom but as the Author himself acknowledges in the case of England the Commom Law of the Country Freeholders Inquest p. 62. which is said to be Common Custom Thus to protect the Customs which the Vulgar shall chuse is to protect the Common Laws of England So that it was the Will of the People and not the Prince alone that made this a Law for if this Law of the Succession of the Crown depended upon his Will then if he be an absolute Monarch that when sufficiently declared being the onely Law might alter it when he would 〈◊〉 and so he might bequeath the Crown to whom he pleased But every one that understands the present Laws of Descent of the Crown of France or the manner of Succession in the Ottoman Empire knows that i◠the King of France or Grand Seignior as absolute as they are should bequeath their Kingdoms to any other than the right Heir this Will would signifie nothing and no body would obey this Successor of their appointing And if any man think to evade this by saying That the Succession of the Crown is a Fundamental Law of the Government and that a Prince may be Absolute and yet not have a power to alter that as he may every thing else I would ask him who made this a Fundamental Law at first whether the King then in being or the King with the Consent of the People upon the first institution of the Government If the King made it alone since he is supposed to have made it at first for the good of the People of which he is the Judge and is supposed in Law never to die why then is not he as competent a Judge of what is good for the People now as a King that lived a thousand years agone was what was fit for the People then and consequently hath as much Right of altering the Succession for the Peoples benefit as he that established it at first since every Law may be altered by the same Power that made it But if he say it is a Fundamental Law because long custom hath made it so then it is apparent such a Law hath its force from the Consent of the People at first or since Custom being nothing else Or lastly if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution then it can neither be altered without their Consent and so consequently no Princes Testament is good as to that farther than the People or their Representatives give their assent thereunto And the same Law holds in the Father of a Family since this Author will have no difference between him and a King but onely secundum Magis Minus If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament let us return again to that of Descent and see if that will prove a better foundation to build this natural Right of Princes upon For my part I think that it is not onely impossible to know who was Adam's right Heir of his Fatherly Power now after five or six thousand years but might likewise be as uncertain as soon as ever the breath was out of his body For supposing Eve survived him why should not her natural Right of governing the Children which she her self brought forth and which out of Wedlock would have belonged to her revive and take place before any Right of her eldest Son to whom upon this ground she must have become subject if she would continue part of the Family or natural Commonwealth which she could not avoid there being none but her Children or Grandchildren in the world and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth So that for ought I see the Mother of the Family hath the best Right to the Government in the state of Nature after the Husbands death upon the Authors own grounds For if the Commandment of Honour thy Father and thy Mother signifie more than bare Reverence and Respect as appears by the Apostles Exposition of this Commandment Ephes 6. v. 1. Children obey your Parents in the Lord which he makes the same with Honour thy Father and thy Mother then this Obedience which was due to the Father belongs likewise to her when his power ceases But passing over this difficulty and allowing this Fatherly Authority to descend to Adam's next Heir it might have been a great Question who this next Heir was supposing Cain to have been disinherited for the murder of Abel and to have gone away and built a City and set up a Government by himself Yet let us suppose Abel left a Son behind him who survived Adam his Grandfather which he might very well do and yet the Scripture be silent in it since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews and therefore says little of his other Children but by the by I would ask the Author or any man else who was Adam's Heir after his death whether this Son of Abel or Seth whom we will suppose likewise to
Conditions this kind of Servant hath the same remedy against his Lord as an hired Servant may have And of this sort were our ancient English Villains who though they could claim no property against their Lords either in Goods or Lands yet if the Lord killed his Villain the Wife had an Appeal of Murder of the death of her Husband Since no man can be supposed so void of common sense unless an absolute Fool and then he is not capable of making any Bargain to yield himself so absolutely up to anothers disposal as to renounce all hopes of safety or satisfaction in this life or of future happiness in that to come So that I conceive that even a Slave much more a Servant hired upon certain Conditions in the state of Nature where he hath no civil power to whom to appeal for Justice hath as much Right as a Son or Child of the Family to defend his life or what belongs to him against the unjust violence or rage of his Master Nor do I think any places of Scripture if well considered command the contrary For as for the places in St. Paul's Epistles Ephes 6.5 Servants be obedient to them that are your Masters according to the flesh with fear and trembling And Coloss 3.22 Servants obey in all things your Masters c. does not extend to all things that are but only to things lawful for them to do that is that were not against the Principles of Christian Religion And in this it is that St. Peter 1 Pet. 2.18,19 commands Servants or Slaves which there were all one to be subject to their Masters not onely to the good and gentle but also to the froward For this is thank-worthy or grateful if a man for conscience towards God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 endure grief or trouble suffering wrongfully Which words seem to import that Servants ought to bear with a great deal of bad usage from their Masters but does not command them in the state of Nature to give up their Lives or Goods to their Masters without any resistance But if any shall urge the Example of Christ alleadged in the third verse who suffered even to death for us I conceive that does not extend to a suffering or submission unto all things but to such things for which Christ himself suffered viz. for Conscience toward God that is for matters of Religion which is likewise most agreeable to the sence of the words that follow For what glory is it if when you are beaten for your faults you take it patiently but if when you do well and take it patiently c. Now who ever can imagine a Servant to be beaten for doing his duty Therefore doing well here signifies the profession of Christianity which they were not to deny though they had unbelieving Masters Therefore since no interpretation of Scripture ought to be against Reason that can never tell a man that he ought to yield up himself so wholly to anothers disposal as to give his Master an absolute right and power over him to kill or maim him without cause or to be so basely and penuriously used as perpetually to suffer hunger cold and nakedness or the like so that his life should rather become a burden and a punishment than a satisfaction For since we have no notions of happiness but in life nor in that farther than it is accompanied with some contentment of mind no rational man can be supposed to consent to renounce all the pleasures and ends thereof and which onely make life desireable much less the Right of living and preserving himself So that even such a Slave may without doubt in the state of Nature run away from his Master and set himself at liberty if he can since his Master hath not performed his part of that tacite condition of his Service which was that this Master should for his Labour provide him all the necessaries of life and suffer him to enjoy the ordinary satisfactions of it Nor is the worst of Slaves that is one taken in War so absolutely at his Masters dispose as that because he hath him in his power he hath therefore a Right to use him as he will For first as long as the Conquerour keeps his Slave as a Prisoner and makes him work in Fetters though he hath given him his life for the present yet there does not thence arise any Obligation in the Slave to Obedience so that the Slave may yet run away if he can nay kill his Conquerour unless he will come to other Terms with him and make him promise him his Service and Obedience upon the granting him his Liberty and enjoyment of the ordinary Comforts of Life And if he cannot enjoy these I believe there is no sober Planter in Barbadoes who are most of them the Assignees of Slaves taken in War but will grant such a Slave may lawfully run away if he can Therefore it is not true what Mr. Hobbes says That no injury can be done to a Slave for his reason is not valid that because a Servant hath absolutely subjected his will to that of his Lords therefore whatever he does he does it by his Master's will in which his own is included so that volenti non fit injuria this proves no more than that the Slave hath no just reason of complaint though his Master give him Victuals that does not suit with his palate orprescribe him Work which may not please his humour So on the other side what rational man will affirm that this Slave hath given up the natural Rights of living and being preserved as a man but that injury may be done to this Slave as any other Servant if the Task imposed upon him be beyond his strength to perform or if he be beaten or like to be put to death without cause or that he hath not Food sufficient to enable him to do his work for he may still require at his Masters hands the usage of a man and of a rational Creature So likewise though this property in the person of a Slave taken in War may be assigned over to another yet the Right of commanding a Slave by his own consent cannot be so farther than it was agreed upon in the Bargain between him and his Lord for if he convenanted to be a Slave onely to his Lord and no man else the Lord cannot in justice assigne nor sell him to another without his consent nor leave him to his Heirs since there might be certain peculiar reasons wherefore a man might subject himself to this man and not to another So likewise in absolute Empires which began purely from Conquest though it is taken for granted that they may be aliened at the Will of the Conquerour yet it is otherwise in Subjects who have submitted themselves upon certain Conditions and who have some Liberties remaining to them and much more in those Kingdoms which are limited by their Institution for there not properly the Persons of the men but the
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the