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 Affaires 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 Supreme Power of a King than such an Assembly wherein all his People acknowledge 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 knowledge 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 rememember 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 Iulius 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 Brittains 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 setled during the Time of any one Kings 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 Confessors Reign who was next but one before the Conquerour 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. Edwards Laws Yet some say that Eadgar 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 Antient 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 Brittain 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
Patriarchal Power continued in Abraham Isaac and Iacob 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 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 Batail most of which were but Kings of Cities apiece with the adjacent Territories as of Sodom Gomorrah Shinar c. In the same Chapter is mention of Melchisedeck King of Salem which was but the City of Ierusalem 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 Ioshuah 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 Seventy 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 AEgypt where the Exercise of Supreme Patriarchal 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 Iosuah successively to govern as Princes in the Place and Stead of the Supreme Fathers and after them likewise for a time he raised up Iudges 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 Iurisdiction 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 Iacob 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 the Crown does escheate 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 always is 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 One Man be quite lost 2. This Ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supreme Power is devolved to the Multitude and that they have Power to Rule and Chose what Rulers they please No the Kingly Power escheats in such cases 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 find the greater Monarchies were at the first erected and into such again as into their first Matter many times they return again And because the dependencie of ancient Families is oft obscure or worn out of Knowledge therefore the wisdom of All or Most Princes have thought sit to adopt many times those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enobled them or made them fit and capable of such Regal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please And he that is so Elected claims not his Power as a Donative from the People but as being substituted properly by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People If it please God for the Correction of the Prince or punishment of the People to suffer Princes to be removed and others to be placed in their rooms either by the Factions of the Nobility or Rebellion of the People in all such cases the Judgment of God who hath power to give and to take away Kingdoms is most just yet the Ministry of men who execute God's Judgments without Commission is sinful and damnable God doth but use and turn mens Vnrighteous Acts to the performance of his Righteous Decrees 10. In all Kingdoms or Common-wealths in the World whether the Prince be the Supreme Father of the People or but the true Heir of such a Father or whether he come to the Crown by Usurpation or by Election of the Nobles or
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 Soveraignty 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 Soveraignty 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 Soveraignty 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 Soveraignty 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 jugded 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 Afsairs 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 justifyed 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 Examin his Actions without a distempered Judgment and you will not Condemne 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 Baron's 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 Oathes 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 Iudge in all Causes both before the Conquest and since 11. The King and his
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 S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen 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 as soon 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 though 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 busyed with Wars or distracted with Publick Cares so that every private man could not have accesse 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 unto him in the Tables of his Laws that so there might be no need to resort to 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 Iames 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-Weale 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 Fore-Fathers 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 Iudgments indifferent and upright Iustice 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 Iudgment are Upright and those not literally always but according to Equity of his Conscience join'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 Kingdoms 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 Errour 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 denyed the Priviledge 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 Human 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 Unlawful 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 tye the Master to acquaint his Servant with his Secret Counsels or present Necessity And in such Cases the Servants 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 Kings Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Ius 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 might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and leave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Vlpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws 9 If the Nature of Laws be advisedly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior Power Laws are divided as Bellermine divides the Word of God into written and unwritten not for that it is not Written at all but because it was not Written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered that for every Custom there was a time when it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands of Kings at first unwritten Nor must we think the Common Customs which are the Principles of the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivered by Moses there be only certain Principal Laws which did not determine out only direct the High-priest or Magistrate whose Judgment in special Cases did determine what the General Law intended It is so with the Common Law for when there is no perfect Rule Judges do resort to those Principles or Common Law Axiomes whereupon former Judgments in Cases some-what like have been delivered by former Judges who all receive Authority from the King in his Right and Name to give Sentence
the 12th 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 Kings 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 Kings Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Iudges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestique 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 Originally 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 Subjects 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-Commission 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 3d Rich. 2. the three Henries 4. 5. 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earles and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the Kings Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edward 1. made at His First Parliament General by His Council and by the assent of Bishops Abbots Priors Earles Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the Kings Council for as much as all the King's Council as well Iustices as others did agree that they should be put in Writing and observed The Statute of Acton Burnell saith The King for Himself and by His Council hath Ordained and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the Kings Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the Kings Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and Ordained by the King himself and all his Council The Statute made at York 9. Ed. 3. saith Whereas the Knights Citizens and Burgesses desired
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 Iesuites 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 Calume 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 Iohn Heyward Adam Blackwood Iohn 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 medle with Mysteries of State such Arcana Imperii or Cabinet-Councels 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 Superiours 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 Privileges as any Nation under Heaven the greatest Liberty in the World if it be duely 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 or Freehold of their Liberties Thirdly I must not detract from the Worth of all those Learned Men who are of a contrary Opinion in the Point of Natural Liberty the profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable neither Aristotle in Philosophy nor Hooker in Divinity They are but Men yet I reverence their Judgements in most Points and confess my self beholding to their Errors too in this something that I found amiss in their Opinions guided me in the discovery of that Truth which I perswade my self they missed A Dwarf sometimes may see that which a Giant looks over for whilest one Truth is curiously searched after another must necessarily be neglected Late Writers have taken up too much upon Trust from the subtile School-men who to be sure to thrust down the King below the Pope thought it the safest course to advance the People above the King that so the Papal Power might take place of the Regal Thus many an Ignorant Subject hath been fooled into this Faith that a man may become a Martyr for his Countrey by being a Traytor to his Prince whereas the New-coyned distinction of Subjects into Royallists and Patriots is most unnatural since the relation between King and People is so great that their well-being is so Reciprocal 2 To make evident the Grounds of this Question about the Natural Liberty of Mankind I will lay down some passages of Cardinal Bellarmine that may best unfold the State of this Controversie Secular or Civil Power saith he is instituted by Men It is in the People unless they bestow it on a Prince This Power is immediately in the whole Multitude as in the Subject of it for this Power is in the Divine Law but the Divine Law hath given this Power to no particular Man If the Positive Law be taken away there is left no Reason why amongst a Multitude who are Equal one rather than another should bear Rule over the rest Power is given by the Multitude to one man or to more by the same Law of Nature for the Commonwealth cannot exercise this Power therefore it is bound to bestow it upon some One Man or some Few It depends upon the Consent of the Multitude to ordain over themselves a King or Consul or other Magistrates and if there be a lawful Cause the Multitude may change the Kingdom into an Aristocracy or Democracy Thus far Bellarmine in which passages are comprised the strength of all that ever I have read or heard produced for the Natural Liberty of the Subject
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 Opposits 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 Eighth 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 make the Countenance of Truth more Orient For unless we will openly proclaim Defiance unto all Law Equity and Reason we must for there is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessor putteth the Successor by Blood in Seisin Those publick Solemnities before-mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of inducing of him into possession of that thing he hath Right unto This is Mr. Hooker's Judgment of the Israelites Power to set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made Choice of Ioas a Child but of Seven years old nor of Manasses a Boy of Twelve since as Solomon saith Wo to the Land whose King is a Child Nor is it probable they would have elected Iosias but a very Child and a Son to so Wicked and Idolatrous a Father as that his own Servants murthered him and yet all the people set up this young Iosias and flew the Conspirators of the Death of Ammon his Father which Justice of the People God rewarded by making this Iosias the most Religious King that ever that Nation enjoyed 9. Because it is affirmed that the People have power to choose as well what Form of Government as what Governours they please of which mind is Bellarmine in those places we cited at first Therefore it is necessary to Examine the Strength of what is said in Defence of popular Commonweals against this Natural Form of Kingdoms which I maintain'd Here I must first put the Cardinal in mind of what he affirms in Cold Blood in other places where he saith God when he made all Mankind of One Man did seem openly to signifie that he rather approved the Government of One Man than of Many Again God shewed his Opinion when he endued not only Men but all Creatures with a Natural Propensity to Monarchy neither can it be doubted but a Natural Propensity is to be referred to God who is Author of Nature And again in a Third place What Form of Government God confirmed by his Authority may be gathered by that Common-weal which he instituted amongst the Hebrews which was not Aristocratical as Calvin saith but plainly Monarchichal 10. Now if God as Bellarmine saith hath taught us by Natural Instinct signified to us by the Creation and confirmed by his own Example the Excellency of Monarchy why should Bellarmine or We doubt but that it is Natural Do
the same because by Nature no Barbarian is fit to Govern It is fit the Grecians should rule over the Barbarians for by Nature a Servant and a Barbarian is all one their Family consists only of an Ox for a Man-Servant and a Wife for a Maid so they are fit only to rule their Wives and their Beasts Lastly Aristotle if it had pleased him might have remembred That Nature doth not always make one Thing but for one Use he knows the Tongue serves both to Speak and to Taste 4. But to leave Aristotle and return to Suarez he saith that Adam had Fatherly Power over his Sons whilst they were not made Free Here I could wish that the Jesuite had taught us how and when Sons become Free I know no means by the Law of Nature It is the Favour I think of the Parents only who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care are then content to remit some part of their Fatherly authority therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of Inferiour Parents but many Nations have no such Custome but on the contrary have strict Laws for the Obedience of Children the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause But it was so decreed lest the Father should in his Anger suddenly or secretly kill his Son Also by the Laws of the Persians and of the People of the Upper Asia and of the Gaules and by the Laws of the West-Indies the Parents have power of Life and Death over their Children The Romans even in their most Popular Estate had this Law in force and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables to the enabling of Parents to sell their Children two or three times over By the help of the Fatherly Power Rome long flourished and oftentimes was freed from great Dangers The Fathers have drawn out of the very Assemblies their own Sons when being Tribunes they have published Laws tending to Sedition Memorable is the Example of Cassius who threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the behoof of the people and afterwards by his own private Judgment put him to Death by throwing him down from the Tarpeian Rock the Magistrates and People standing thereat amazed and not daring to resist his Fatherly Authority although they would with all their Hearts have had that Law for the Division of Land by which it appears it was lawful for the Father to dispose of the Life of his Child contrary to the Will of the Magistrates or People The Romans also had a Law that what the Children got was not their own but their Fathers although Solon made a Law which acquitted the Son from Nourishing of his Father if his Father had taught him no Trade whereby to get his Living Suarez proceeds and tells us That in Process of Time Adam had compleat Oeconomical Power I know not what this compleat Oeconomical Power is nor how or what it doth really and essentially differ from Political If Adam did or might exercise the same Jurisdiction which a King doth now in a Commonwealth then the Kinds of Power are not distinct and though they may receive an Accidental Difference by the Amplitude or Extent of the Bounds of the One beyond the Other yet since the like Difference is also found in Political Estates It follows that Oeconomical and Political Power differ no otherwise than a Little Commonweal differs from a Great One. Next saith Suarez Commnnity did not begin at the Creation of Adam It is true because he had no body to Communicate with yet Community did presently follow his Creation and that by his Will alone for it was in his power only who was Lord of All to appoint what his Sons should have in Proper and what in Common so that Propriety and Community of Goods did follow Originally from Him and it is the Duty of a Father to provide as well for the Common Good of his Children as the Particular Lastly Suarez Concludes That by the Law of Nature alone it is not due unto any Progenitor to be also King 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 untill 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 privilege 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