the Election of Saul since Saul was chosen by God himself and governed according to God's Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Joshua but will have it descend to Eleazar the High-Priest Aaron's Son His Proof is God expresly saith concerning Joshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Vrim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ The Work of the High-Priest was only Ministerial not Magisterial he had no power to Command in War or to Judge in Peace only when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Breast-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Breast-plate before his face then the Priest answered him Go up or go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIVS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition J. M. abominates as being the Definition of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own Therefore there is no Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Justice and by them where not the King but the usual Judges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtail the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay J.M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17.14 When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placeret forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in
the People either to use what Form of Government they pleased or of changing it into another God saith this expresly of the Hebrews and denies it not of others Can any man find that God in this Text expresly saith that there was always a Right in the People to use what Form of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only 3. Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders only for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was anointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou commandest us we will do and whithersoever thou sendest us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Jus Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitrary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them p. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compel them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that a King according to Law makes no sort of Government and after
or Free-hold 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 Judgments 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 Before I examine or refute these Doctrines I must a little make some Observations upon his Words First He saith that by the law of God Power is immediately in the People hereby he makes God to be the immediate Author of a Democratical Estate for a Democrasy is nothing else but the Power of the Multitude If this be true not only Aristocracies but all Monarchies are altogether unlawful as being ordained as he thinks by Men whenas God himself hath chosen a Democracy Secondly He holds that although a Democracy be the Ordinance of God yet the people have no power to use the Power which God hath given them but only power to give away their Power whereby it followeth that there can be no Democratical Government because he saith the people must give their Power to One Man or to some Few which maketh either a Regal or Aristocratical Estate which the Multitude is tyed to do even by the same Law of Nature which Originally gave them the Power And why then doth he say the Multitude may change the Kingdom into a Democracy Thirdly He concludes that if there be a lawful Cause the Multitude may change the Kingdom Here I would fain know who shall judg of this lawful Cause If the Multitude for I see no Body else can then this is a pestilent and dangerous Conclusion 3 I come now to examine that Argument which is used by Bellarmine and is the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People It is thus framed That God hath given or ordained Power is evident by Scripture But God hath given it to no particular Person because by nature all Men are Equal therefore he hath given Power to the People or Multitude To Answer this Reason drawn from the Equality of Mankind by Nature I will first use the help of Bellarmine himself whose very words are these If many men had been together created out of the Earth they all ought to have been Princes over their Posterity In these words we have an Evident Confession that Creation made man Prince of his Posterity And indeed not only Adam but the succeding Patriarchs had by Right of Father-hood Royal Authority over their Children Nor dares Bellarmine deny this also That the Patriarchs saith he were endowed with Kingly Power their Deeds do testify for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with subordination to the First Parent who is Lord-Paramout over his Childrens Children to all Generations as being the Grand-Father of his People 4 I see not then how the Children of Adam or of any man else can be free from subjection to their Parents And this subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself It follows that Civil Power not only in general is by Divine Institution but even the Assignment of it Specifically to the eldest Parents which quite takes away that New and Common distinction which refers only Power Universal and Absolute to God but Power Respective in regard of the Special Form of Government to the Choice of the people This Lordship which Adam by Command had over the whole World and by Right descending from him the Patriarchs did enjoy was as large and ample as the Absolutest Dominion of any Monarch which hath been since the Creation For Dominion of Life and Death we find that Judah the Father pronounced Sentence of Death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abraham commanded an Army of 318 Souldiers of his own Family And Esau met his Brother Jacob with 400 Men at Arms. For matter of Peace Abraham made a League with Abimilech and ratify'd the Articles with an Oath These Acts of Judging in Capital Crimes of making War and concluding Peace are the chiefest Marks of Sovereignty that are found in any Monarch 5 Not only until the Flood but after it this Patriarchal Power did continue as the very Name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World over-spread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the Earth
Justice A natural Reason is to be rendered for it It is the Multitude of People and the abundance of their Riches which are the only Strength and Glory of every Prince The Bodies of his Subjects do him Service in War and their Goods supply his present Wants therefore if not out of Affection to his People yet out of Natural Love to Himself every Tyrant desires to preserve the Lives and protect the Goods of his Subjects which cannot be done but by Justice and if it be not done the Prince's Loss is the greatest on the contrary in a Popular State evey man knows the Publick good doth not depend wholly on his Care but the Common-wealth may well enough be governed by others though he tend only his Private Benefit he never takes the Publick to be his Own Business thus as in a Family where one Office is to be done by many Servants one looks upon another and every own leaves the Business for his Fellow until it is quite neglected by all nor are they much to be blamed for their Negligence since it is an even Wager their Ignorance is as great For Magistrates among the People being for the most part Annual do always lay down their Office before they understand it so that a Prince of a Duller Understanding by Use and Experience must needs excell them again there is no Tyrant so barbarously Wicked but his own reason and sense will tell him that though he be a God yet he must dye like a Man and that there is not the Meanest of his Subjects but may find a means to revenge himself of the Injustice that is offered him hence it is that great Tyrants live continually in base fears as did Dionysius the Elder Tiberius Caligula and Nero are noted by Suetonius to have been frighted with Panick fears But it is not so where wrong is done to any Particular Person by a Multitude he knows not who hurt him or who to complain of or to whom to address himself for reparation Any man may boldly exercise his Malice and Cruelty in all Popular Assemblies There is no Tyranny to be compared to the Tyranny of a Multitude 16. What though the Government of the People be a thing not to be endured much less defended yet many men please themselves with an Opinion that though the People may not Govern yet they may partake and joyn with a King in the Government and so make a State mixed of Popular and Regal Power which they take to be the best tempered and equallest Form of Government But the Vanity of this Fancy is too evident it is a meer Impossibility or Contradiction for if a King but once admit the People to be his Companions he leaves to be a King and the State becomes a Democracy at least he is but a Titular and no Real King that hath not the Sovereignty to Himself for the having of this alone and nothing but this makes a King to be a King As for that Shew of Popularity which is found in such Kingdoms as have General Assemblies for Consultation about making Publick Laws It must be remembred that such Meetings do not share or divide the Sovereignty with the Prince but do only deliberate and advise their Supreme Head who still reserves the Absolute Power in himself for if in such Assemblies the King the Nobility and People have equal Shares in the Sovereignty then the King hath but one Voice the Nobility likewise one and the People one and then any two of these Voices should have Power to over-rule the third thus the Nobility and Commons together should have Power to make a Law to bind the King which was never yet seen in any Kingdom but if it could the State must needs be Popular and not Regal 17. If it be Unnatural for the Multitude to chuse their Governours or to Govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the Multitude may Correct or Depose their Prince if need be Surely the Unnaturalness and Injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his People either Originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof for either yet by no Law of any Nation can a Contract be thought broken except that first a Lawful Tryal be had by the Ordinary Judge of the Breakers thereof or else every Man may be both Party and Judge in his own case which is absur'd once to be thought for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Government that God hath laid upon them to judge and punish him by whom they should be judged and punished themselves Aristotle can tell us what Judges the Multitude are in their own case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Judgment of the Multitude in Disposing of the Sovereignty may be seen in the Roman History where we may find many good Emperours Murthered by the People and many bad Elected by them Nero Heliogabalus Otho Vitellius and such other Monsters of Nature were the Minions of the Multitude and set up by them Pertinax Alexander Severus Gordianus Gallus Emilianus Quintilius Aurelianus Tacitus Probus and Numerianus all of them good Emperours in the Judgment of all Historians yet Murthered by the Multitude 18. Whereas many out of an imaginary Fear pretend the Power of the People to be necessary for the repressing of the Insolencies of Tyrants wherein they propound a Remedy far worse than the Disease neither is the Disease indeed so frequent as they would have us think Let us be judged by the History even of our own Nation We have enjoyed a Succession of Kings from the Conquest now for above 600 years a time far longer than ever yet any Popular State could continue we reckon to the Number of twenty six of these Princes since the Norman Race and yet not one of these is taxed by our Historians for Tyrannical Government It is true two of these Kings have been Deposed by the People and barbarously Murthered but neither of them for Tyranny For as a learned Historian of our Age saith Edward the Second and Richard the Second were not insupportable either in their Nature or Rule and yet the People more upon Wantonness than for any want did take an unbridled Course against them Edward the Second by many of our Historians is reported to be of a Good and Vertuous Nature and not Unlearned they impute his defects rather to Fortune than either to Council or Carriage of his Affairs the Deposition of him was a violent Fury led by a Wife both Cruel and unchast and can with no better Countenance of Right be justified than may his lamentable both Indignities and Death it self Likewise the Deposition of King Richard II was a tempestuous Rage neither Led or Restrained
or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of all men should not be able to compound a name for such a perfect Form of Government unless we should believe that they esteemed this kind of Commonwealth so superlatively excellent as to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Government of all Governments or Polity of Polities But howsoever Aristotle in his Books of Politicks vouchsafe us not a Name yet in his Books of Ethicks he affirmeth it may very properly be called a Timocratical Government where Magistrates are chosen by their Wealth But why Aristotle should give it such a Name I can find no Reason for a Polity by his Doctrine is the Government of many or of a Multitude and the Multitude he will have to be the poorer sort insomuch that except they be poor he will not allow it to be the Government of a Multitude though they be never so many for he makes Poverty the truest Note of a popular Estate and as if to be Poor and to be Free were all one he makes Liberty likewise to be a Mark of popular Estate for in his 4 th Book and 4 th Chapter he resolves That a popular State is where Freemen govern and an Oligarchy where rich men rule as if rich men could not be Free-men Now how Magistrates should be chosen for their Wealth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 among all poor men is to me a Riddle Here I cannot but wonder why all our Modern Politicians who pretend themselves Aristotelians should forsake their great Master and account a Democraty a right or perfect Form of Government when Aristotle brands it for a Transgression or a depraved or corrupted manner of Government They had done better to have followed Aristotle who though other Grecians could not yet he could find out the name of a Timocraty for a right popular Government But it may be our Politicians forbear to use the word Timocraty because he affords an ill Character of it saying That of all the right Kinds of Government a Monarchy was the best and a Timocraty the worst 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet afterwards Aristotle in the same Chapter makes amends for it in saying a Democraty is the least vicious because it doth but a little Transgress from a Timocraty But not to insist longer on the name of this nameless Form of Government let Inquiry be made into the thing it self that we may know what Aristotle saith is the Government of many or of a Multitude for the Common Good This Many or Multitude is not the whole People nor the major part of the People or any chosen by the People to be their Representors No Aristotle never saith or meaneth any such thing for he tells us the best City doth not make any Artificer or Handicraftsman a Citizen And if these be excluded out of the Number of Citizens there will be but a few lest in every City to make his Timocratical Government since Artificers or Mercenary men make far the greatest part of a City or to say a City is a Community of Free-men and yet to exclude the greatest part of the Inhabitants from being Citizens is but a Mockery of Freedom for any man would think that a City being a Society of men assembled to the End to live well that such men without whom a City cannot subsist and who perform necessary Works and minister to all in Publick should not be barred from being Citizens yet says Aristotle all those are not to be deemed Citizens without whom a City cannot subsist except they abstain from necessary Works for he resolves it impossible for him to exercise the Work of Vertue that useth a Mechanical or Mercenary Trade And he makes it one of his Conclusions That in ancient times among some men no publick Workman did partake of the Government until the worst of Democraties were brought in Again Aristotle will have his best Popular Government consist of Free-men and accounts the poorer sort of People to be Free-men how then will he exclude poor Artificers who work for the Publick from participating of the Government Further it is observable in Aristotle That quite contrary to the Signification of the Greek names the Government of a Multitude may be termed an Oligarchy if they be rich and the Rule of a few a Democraty if they be poor and free After much Incertainty of the Nature of this Politick Government which wants a name Aristotle at last resolves that this general Commonweal or Politia is compounded of a Democraty and Oligarchy for to speak plainly a Polity is a mixture of a Democraty and an Oligarchy That is one perfect Form is made of two imperfect ones this is rather a confounding than compounding of Government to patch it up of two corrupt ones by appointing an Oligarchical Penalty for the rich Magistrates that are chosen by Election and a Democratical Fee for the poor Magistrates that are chosen by Lot Lastly it is to be noted That Aristotle doth not offer to name any one City or Commonweal in the World where ever there was any such Government as he calls a Polity for him to reckon it for a perfect Form of Government and of such Excellency as to carry the Name from all other and yet never to have been extant in the World may seem a Wonder and a man may be excused for doubting or for denying any such Form to be possible in Nature if it cannot be made manifest what it is nor when nor where it ever was In Conclusion since Aristotle reckons but three kinds of perfect Government which are First a Monarchy of one Secondly an Aristocraty of a few Thirdly a Polity of a Multitude and if these two latter cannot be made good by him there will remain but one right Form of Government only which is Monarchy And it seems to me that Aristotle in a manner doth confess as much where he informs us that the first Commonweal among the Grecians after Kingdoms was made of those that waged War meaning that the Grecians when they left to be governed by Kings fell to be governed by an Army their Monarchy was changed into a Stratocraty and not into an Aristocraty or Democraty for if Unity in Government which is only found in Monarchy be once broken there is no Stay or Bound until it come to a constant standing Army for the People or Multitude as Aristotle teacheth us can excel in no Vertue but Military and that That is natural to them and therefore in a popular Estate The Sovereign Power is in the Sword and those that are possessed of the Arms. So that any Nation or Kingdom
frustrates the End for which the Sovereignty was Ordained then there is no liberty to refuse otherwise there is If no man be bound by the words of his Subjection to kill any other man then a Sovereign may be denied the benefit of War and be rendred unable to defend his People and so the End of Government frustrated If the Obligation upon the Commands of a Sovereign to execute a dangerous or dishonourable Office dependeth not on the words of our Submission but on the Intention which is to be understood by the End thereof No man by Mr. Hobs's Rules is bound but by the words of his Submission the Intention of the Command binds not if the words do not If the Intention should bind it is necessary the Sovereign must discover it and the People must dispute and judge it which how well it may consist with the Rights of Sovereignty Mr. Hobs may consider Whereas Master Hobs saith the Intention is to be understood by the End I take it he means the End by Effect for the End and the Intention are one and the same thing and if he mean the Effect the Obedience must go before and not depend on the understanding of the Effect which can never be if the Obedience do not precede it In fine he resolves refusal to obey may depend upon the judging of what frustrates the End of Sovereignty and what not of which he cannot mean any other Judge but the People XV. Mr. Hobs puts a case by way of Question A great many men together have already resisted the Sovereign Power unjustly or committed some Capital Crime for which every one of them expecteth death whether have they not the liberty then to joyn together and assist and defend one another Certainly they have for they but defend their Lives which the Guilty man may as well do as the Innocent There was indeed Injustice in the first breach of their Duty their bearing of Arms subsequent to it though it be to maintain what they have done is no new unjust Act and if it be only to defend their Persons it is not unjust at all The only reason here alledged for the Bearing of Arms is this That there is no new unjust Act as if the beginning only of a Rebellion were an unjust Act and the continuance of it none at all No better Answer can be given to this case than what the Author himself hath delivered in the beginning of the same Paragraph in these words To resist the Sword of the Commonwealth in defence of another man Guilty or Innocent no man hath Liberty because such Liberty takes away from the Sovereign the Means of protecting us and is therefore destructive of the very Essence of Government Thus he first answers the question and then afterwards makes it and gives it a contrary Answer other Passages I meet with to the like purpose He saith Page 66. A man cannot lay down the Right of Resisting them that assault him by Force to take away his Life The same may be said of Wounds Chains and Imprisonment Page 69. A Covenant to defend my self from Force by Force is void Pag. 68. Right of Defending Life and Means of living can never be abandoned These last Doctrines are destructive to all Government whatsoever and even to the Leviathan it self hereby any Rogue or Villain may murder his Sovereign if the Sovereign but offer by force to whip or lay him in the Stocks since Whipping may be said to be wounding and putting in the Stocks an Imprisonment so likewise every man's Goods being a Means of Living if a man cannot abandon them no Contract among men be it never so just can be observed thus we are at least in as miserable condition of War as Mr. Hobs at first by Nature found us XVI The Kingdom of God signifies saith Master Hobs page 216. a Kingdom constituted by the Votes of the People of Israel in a peculiar manner wherein they choose God for their King by Covenant made with him upon God's promising them Canaan If we look upon Master Hobs's Text for this it will be found that the People did not Constitute by Votes and choose God for their King But by the Appointment first of God himself the Covenant was to be a God to them they did not contract with God that if he would give them Canaan they would be his Subjects and he should be their King It was not in their power to choose whether God should be their God yea or nay for it is confessed He reigned naturally over all by his Might If God Reigned naturally he had a Kingdom and Sovereign Power over his Subjects not acquired by their own Consent This Kingdom said to be constituted by the Votes of the People of Israel is but the Vote of Abraham only his single Voice carried it he was the Representative of the People For at this Vote it is confessed that the Name of King is not given to God nor of Kingdom to Abraham yet the thing if we will believe Master Hobs is all one If a Contract be the mutual transferring of Right I would know what Right a People can have to transfer to God by Contract Had the People of Israel at Mount Sinai a Right not to obey God's Voice If they had not such a Right what had they to transfer The Covenant mentioned at Mount Sinai was but a Conditional Contract and God but a Conditional King and though the People promised to obey God's word yet it was more than they were able to perform for they often disobeyed God's Voice which being a breach of the Condition the Covenant was void and God not their King by Contract It is complained by God They have rejected me that I should reign over them but it is not said according to their Contract for I do not find that the Desiring of a King was a breach of their Contract of Covenant or disobedience to the Voice of God there is no such Law extant The People did not totally reject the Lord but in part only out of timorousness when they saw Nahash King of the Children of Ammon come against them they distrusted that God would not suddenly provide for their Deliverance as if they had had always a King in readiness to go up presently to fight for them This Despair in them who had found so many miraculous deliverances under Gods Government was that which offended the Lord so highly they did not desire an Alteration of Government and to cast off God's Laws but hoped for a certainer and speedier deliverance from danger in time of War They did not petition that they might choose their King themselves that had been a greater sin and yet if they had it had not been a total rejection of God's Reigning over them as long as they desired not to depart from the Worship of God their King and from the Obedience of his Laws I see not that the Kingdom of God was cast off by
common Good Another Doctrine of Grotius is That the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth That the People may chuse what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. cap. 3. Also That the People chusing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private Men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiors is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us He rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition That in some places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion That People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right And you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this That the People may grant away their Power without retaining any part But what is this to what the People have done For though the People may give away their Power without reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his favour the point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged That in all presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings part who are in possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the Peoples labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an instant without any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius That although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implied that it was upon condition to be well governed and that the Non-performance of that implied Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said That the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected That he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be That by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say That it is by any necessity of the Law of Nature or by any positive Law of God he teacheth That non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth only approve it ut humanum and humano modo He tells us further That Populus potest eligere qualem vult gubernationis formam ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they may make temporary Kings as Directors and Protectors jus
also to study always to please their Parents But since this Duty is not by force of any moral faculty as those former are but only of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing is void being made by any Owner whatsoever against the rules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the power of a Parent doth so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith The Son is in all things Free and of his own Authority always that Duty remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws only which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth That the power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith That the power over the Son or Daughter to dissolve Vows was not perpetual but did endure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three ways Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Vsufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdom That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title only make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth only put the Conquerour in possession of his old Right but not create a new The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdom which gives a Form to the Kingdom but a Continuation of the old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right only for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he hath a Title it is an unjust War that takes the Kingdom from him If he hath no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule That where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the Judgment of Grotius But if it be admitted that he that attempts to conquer hath a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Vbi Judicia deficiunt incipit Bellum Lib. 2. cap. 1. And thus upon the matter I cannot find in Grotius's Book De Jure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est quâ se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2.
cap. 5. If Subjection be the Gift of the People how can Supreme Power pleno Jure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of life as that because they can find no other ways to defend themselves or because they are so pressed with poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War only which reduceth a People to such terms of extremity as compels them to an absolute Abrenunciation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Soveraignty and not the free Gift of the People who cannot otherwise chuse but give away that Power which they cannot keep Thus upon the reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Just War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Justice Justitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full Right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith That all Kings are not made by the People which may be sufficiently understood by the Example of a Father of a Family receiving Strangers under the Law of Obedience In both these passages we have a close and curt acknowledgment That a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle That Dominion came in by the Will of the People and so consequently to overthrow his Vsufructuary Kings of whom I am next to speak Grotius saith That the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And That men of their own accord came together into Civil Society from whence springs Civil Power and the People may chuse what Form of Government they please Upon these Suppositions he concludes That Kings elected by the People have but an Vsufructuary Right that is a Right to take the profit or fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Vsufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Vsufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Vsufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the part and Duty of a King to govern and he hath a Right so to do and to that end Supreme Power is given unto him the taking of the profit or making use of the Patrimony of the Crown is but as a means only to enable him to perform that work of Government Besides Grotius will not only have an elected King but also his lawful Successors to have but an Vsufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no power to alienate it for he supposeth the primary VVill of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delatâ sunt concedo non esse praesumendum eam fuisse Populi voluntatem aut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People For he saith The Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Vnum quiddam and in it self indivisible ye he bsaith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to
be that the Government or the Governed may be divided an Example he gives of the Roman Empire which was divided into the East and West but whereas he saith Fieri potest c. It may be the People chusing a King may reserve some Actions to themselves and in others they may give full power to the King The Example he brings out of Plato of the Heraclides doth not prove it and it is to dream of such a Form of Government as never yet had name nor was ever found in any setled Kingdom nor cannot possibly be without strange Confusion If it were a thing so voluntary and at the pleasure of men when they were free to put themselves under Subjection why may they not as voluntarily leave Subjection when they please and be free again If they had a liberty to change their Natural Freedom into a voluntary Subjection there is stronger reason that they may change their voluntary Subjection into natural Freedom since it is as lawful for men to alter their Wills as their Judgments Certainly it was a rare felicity that all the men in the World at one instant of time should agree together in one mind to change the Natural Community of all things into private Dominion for without such an unanimous Consent it was not possible for Community to be altered for if but one man in the World had dissented the Alteration had been unjust because that Man by the Law of Nature had a Right to the common Use of all things in the World so that to have given a propriety of any one thing to any other had been to have robbed him of his Right to the common Use of all things And of this Judgment the Jesuit Lud. Molina seems to be in his Book De Justitia where he saith Si aliquis de cohabitantibus c. If one of the Neighbours will not give his Consent to it the Commonwealth should have no Authority over him because then every other man hath no Right or Authority over him and therefore can they not give Authority to the Commonwealth over him If our first Parents or some other of our Forefathers did voluntarily bring in Propriety of Goods and Subjection to Governours and it were in their power either to bring them in or not or having brought them in to alter their minds and restore them to their first condition of Community and Liberty what reason can there be alledged that men that now live should not have the same power So that if any one man in the World be he never so mean or base will but alter his Will and say he will resume his Natural Right to Community and be restored unto his Natural Liberty and consequently take what he please and do what he list who can say that such a man doth more than by Right he may And then it will be lawful for every man when he please to dissolve all Government and destroy all Property VVhereas Grotius saith That by the Law of Nature all things were at first Common and yet teacheth That after Propriety was brought in it was against the Law of Nature to use Community he doth thereby not only make the Law of Nature changeable which he saith God cannot do but he also makes the Law of Nature contrary to it self OBSERVATIONS UPON Mr. HVNTON'S Treatise of Monarchy OR THE ANARCHY Of a Limited or Mixed Monarchy THese Observations on the Treatise of Monarchy written by Mr. Hunton being of like Argument with the former are here annexed with this Advertisement That the Treatise it self consists of two Parts the first concerning Monarchy in general the latter concerning this particular Monarchy and is seconded with a Vindication which alledgeth new matter about the nature kinds causes and means of Limitation in Government intimating a mistrust that the Treatise had not fully or sufficiently discovered these Points These Observations reach only to the first Part of the Treatise concerning Monarchy in general Whether it can possibly be Limited or Mixed If this be not made good it is but vain labour to trouble the Reader with the dispute about the nature kinds and causes of that which is not nor cannot at all be or to handle the Hypothesis about this particular Monarchy for which the prime and chief Arguments are of no greater Antiquity than some Concessions since these present Troubles The ancient Doctrine of Government in these later days hath been strangely refined by the Romanists and wonderfully improved since the Reformation especially in point of Monarchy by an Opinion That the People have Originally a power to create several sorts of Monarchy and to limit and compound them at their pleasure The consideration hereof caused me to scruple the modern Piece of Politicks touching Limited and Mixed Monarchy and finding it only presented us by this Author I have drawn these few Observations upon the most considerable part of his Treatise desiring to receive satisfaction from the Author or any other for him The Novelty of this Point challengeth a modest Debate the rather for that the Treatise acknowledgeth that not only Monarchy but also Aristocracy and Democracy may be either Simple or Mixed of two or all three together though it do not determine whether they can be Absolute or Limited THE PREFACE WE do but flatter our selves if we hope ever to be governed without an Arbitrary Power No we mistake the Question is not Whether there shall be an Arbitrary Power but the only point is Who shall have that Arbitrary Power whether one man or many There never was nor ever can be any People governed without a Power of making Laws and every Power of making Laws must be Arbitrary For to make a Law according to Law is Contradictio in adjecto It is generally confessed That in a Democracy the Supreme or Arbitrary Power of making Laws is in a Multitude and so in an Aristocracy the like Legislative or Arbitrary Power is in a few or in the Nobility And therefore by a necessary Consequence in a Monarchy the same Legislative Power must be in one according to the Rule of Aristotle who saith Government is in One or in a Few or in Many This ancient Doctrine of Government in these latter days hath been strangely refined by the Romanists and wonderfully improved since the Reformation especially in point of Monarchy by an Opinion That the People have Originally a Power to create several sorts of Monarchy to limit and compound them with other Forms of Government at their pleasure As for this natural Power of the People they find neither Scripture Reason or Practice to justifie it For though several Kingdoms have several and distinct Laws one from another yet that doth not make several sorts of Monarchy Nor doth the difference of obtaining the Supreme Power whether by Conquest Election Succession or by any other way make different sorts of Government It is the difference only of the Authors of the Laws and not of the Laws
it to one kind that is to Monarchy or the Government of one alone and the determination of it to the individual person and line of Adam are all three Ordinances of God Neither Eve nor her Children could either limit Adams power or joyn others with him in the Government and what was given unto Adam was given in his person to his posterity This paternal Power continued Monarchical to the Flood and after the Flood to the confusion of Babel when Kingdoms were first erected planted or scattered over the face of the World we find Gen. 10.11 it was done by Colonies of whole Families over which the prime Fathers had supreme power and were Kings who were all the Sons or Grand-children of Noah from whom they derived a fatherly and regal Power over their Families Now if this supreme Power was setled and founded by God himself in the Fatherhood how is it possible for the people to have any right or title to alter and dispose of it otherwise What Commission can they shew that gives them power either of Limitation or Mixture It was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the acts of his will and as in him so in all others that have supreme Power as appears by the judgment and speech of the people to Joshuah when he was supreme Governour these are their words to him All that thou commandest us we will do whosoever he be that doth rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death We may not say that these were evil Councellours or flattering Courtiers of Joshuah or that he himself was a Tyrant for having such arbitrary power Our Author and all those who affirm that power is conveyed to persons by publick consent are forced to confess that it is the fatherly power that first enables a people to make such conveyance so that admitting as they hold that our Ancestors did at first convey power yet the reason why we now living do submit to such power is for that our Forefathers every one for himself his family and posterity had a power of resigning up themselves and us to a supreme Power As the Scripture teacheth us That supreme Power was originally in the Fatherhood without any limitation so likewise Reason doth evince it that if God ordained that Supremacy should be that then Supremacy must of necessity be unlimited for the power that limits must be above that power which is limited if it be limited it cannot be supreme so that if our Author will grant supreme Power to be the Ordinance of God the supreme Power will prove it self to be unlimited by the same Ordinance because a supreme limited Power is a contradiction The Monarchical Power of Adam the Father of all flesh being by a general binding Ordinance setled by God in him and his posterity by right of fatherhood the form of Monarchy must be preferred above other forms except the like Ordinance for other forms can be shewed neither may men according to their relations to the form they live under to their affections and judgments in divers respects prefer or compare any other form with Monarchy The point that most perplexeth our Author and many others is that if Monarchy be allowed to be the Ordinance of God an absurdity would follow that we should uncharitably condemn all the Communities which have not that form for violation of Gods Ordinance and pronounce those other Powers unlawful If those who live under a Monarchy can justifie the form they live under to be Gods Ordinance they are not bound to forbear their own justification because others cannot do the like for the form they live under let others look to the defence of their own Government if it cannot be proved or shewed that any other form of Government had ever any lawful beginning but was brought in or erected by Rebellion must therefore the lawful and just obedience to Monarchy be denied to be the Ordinance of God To proceed with our Author in the 3 d. page he saith The Higher Power is Gods Ordinance That it resideth in One or more in such or such a way is from humane designment God by no word binds any people to this or that form till they by their own act bind themselves Because the power and consent of the People in Government is the burden of the whole Book and our Author expects it should be admitted as a magisterial postulation without any other proof than a naked supposition and since others also maintain that originally Power was or now is in the People and that the first Kings were chosen by the People they may not be offended if they be asked in what sence they understand the word People because this as many other words hath different acceptions being sometimes taken in a larger otherwhile in a stricter sence Literally and in the largest sence the word People signifies the whole multitude of mankind but figuratively and synecdochically it notes many times the major part of a multitude or sometimes the better or the richer or the wiser or some other part and oftentimes a very small part of the People if there be no other apparent opposite party hath the name of the People by presumption If they understand that the entire multitude or whole People have originally by nature Power to chuse a King they must remember that by their own principles and rules by nature all mankind in the World makes but one People who they suppose to be born alike to an equal freedom from Subjection and where such freedom is there all things must of necessity be common and therefore without a joynt consent of the whole People of the World no one thing can be made proper to any one man but it will be an injury and an usurpation upon the Common right of all others From whence it follows that natural freedom being once granted there cannot be any one man chosen a King without the universal consent of all the People of the world at one instant nemine contradicente Nay if it be true that nature hath made all men free though all mankind should concur in one vote yet it cannot seem reasonable that they should have power to alter the law of nature for if no man have power to take away his own life without the guilt of being a murtherer of himself how can any people confer such a power as they have not themselves upon any one man without being accessories to their own deaths and every particular man become guilty of being felo de se If this general signification of the word People be disavowed and men will suppose that the People of particular Regions or Countries have power and freedom to chuse unto themselves Kings then let them but observe the consequence Since nature hath not distinguished the habitable World into Kingdoms nor determined what part of a People shall
a primity of share in the supreme Power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us The Houses of Parliament sure have two parts of the greatest legislative Authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The Soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty Title Therefore in the third place he resolves us That to salve all a power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First A Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supreme Power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law only thus he is brought from the legislative to the gubernative or executive Power only nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supreme power into Legislative and Gubernative doth now divide it into Legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of Power but are we sure he may enjoy this It seems our Author is not confident in this neither and some others do deny it him our Author speaking of the Government of this Kingdom saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty Title certain of no Power at all The power of chusing Officers only is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take Accompts and indeed in all popular Governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the only Subject in a Kingdom or the only man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may some time or other perhaps govern according to the Laws only the King can be no Officer but to chuse Officers his Subjects may all govern but he may not Next I cannot see how in true sense our Author can say his Monarch is the head and fountain of Power since his Doctrine is That in a limited Monarchy the publick Society by original Constitution confer on one man power is not then the publick Society the head and fountain of Power and not the King Again when he tells us of his Monarch That both the other States as well conjunctim as divisim be his sworn Subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons He without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his Judges in Courts of Justice only that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the supreme Power And 3. As to this third particular The power of Convocating such persons they are both so far from making a Monarch that they are the only way to make him none by chusing and calling others to share in the supreme Power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the supreme Power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truly a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing only a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person make the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Judge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applied It is a case beyond the possible provision of such a Government of this question there is no legal Judge The accusing side must make it evident to every mans Conscience The Appeal must be to the Community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry than Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to inquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because
will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not only among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the People there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wenceslaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Council of Nobles nor to choose any Wife without their leaves then it must be said to be a Commonweal not a Royalty and the King but only the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Counselling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot find in any Kingdom but only where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmark I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmark withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of Life and Death over their Subjects without appeal and the King to give no Office without consent of the Council There is a Chancellour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Council and from this Council to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the People or community may assume its own Power if neither of these Kingdoms have most Countries have not nay none have The People or Community in these three Realms are as absolute Vassals as any in the World the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The Election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Council in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdom such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changeable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the People are so far from liberty that he saith Divers particular Lords exact not only Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Judgments THE END THE POWER OF KINGS And in Particular OF THE KING OF ENGLAND THE POWER OF KINGS And in Particular Of the KING of ENGLAND TO Majestie or Soveraignty belongeth an Absolute Power not subject to any Law It behoveth him that is a Soveraign not to be in any sort Subject to the Command of Another whose Office is to give Laws unto his Subjects to Abrogate Laws unprofitable and in their stead to Establish other which he cannot do that is himself Subject to Laws or to Others which have Command over him And this is that which the Law saith that The Prince is acquitted from the Power of the Laws The Laws Ordinances Letters-Patents Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by Sufferance of the Prince following who had knowledge thereof If the Soveraign Prince be exempted from the Laws of his Predecessors much less shall he be bound unto the Laws he maketh Himself for a man may well receive a Law from Another man but impossible it is in Nature for to give a Law unto Himself no more than it is to Command a man's self in a matter depending of his Own Will There can be no Obligation which taketh State from the meer Will of him that promiseth the same which is a necessary Reason to prove evidently that a King cannot bind his Own Hands albeit that he would We see also in the end of all Laws these words Because it hath so Pleased us to give us to understand that the Laws of a Sovereign Prince although they be grounded upon Reason yet depend upon nothing but his meer and frank good Will But as for the Laws of God all Princes and People are unto them subject neither is it in their power to impugne them if they will not be guilty of High Treason against God under the greatness of whom all Monarchs of the world ought to bow their Heads in all fear and reverence A Question may be Whether a Prince be subject to the Laws of his Countrey that he hath
were before Laws The Kings of Judah and Israel not tied to Laws 2 Of Samuel's Description of a King 3 The Power ascribed to Kings in the New Testament 4 Whether Laws were invented to bridle Tyrants 5 The Benefit of Laws 6 Kings keep the Laws though not bound by the Laws 7 Of the Oaths of Kings 8 Of the Benefit of the Kings Prerogative over Laws 9 The King the Author the Interpreter and Corrector of the Common Laws 10 The King Judge in all Causes both before the Conquest and since 11 the King and his Council anciently determined Causes in the Star-Chamber 12 Of Parliaments 13 When the People were first called to Parliaments 14 The Liberty of Parliaments not from Nature but from the grace of Princes 15 The King alone makes Laws in Parliament 16 He Governs Both Houses by himself 17 Or by his Council 18 Or by his Judges CHAP I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of Mankind New Plausible and Dangerous 2 The Question stated out of Bellarmine Some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 and from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and their agreement SInce the time that School-Divinity began to flourish there hath been a common Opinion maintained as well by Divines as by divers other learned Men which affirms Mankind is naturally endowed and born with Freedom from all Subjection and at liberty to chose what Form of Government it please And that the Power which any one Man hath over others was at first bestowed according to the discretion of the Multitude This Tenent was first hatched in the Schools and hath been fostered by all succeeding Papists for good Divinity The Divines also of the Reformed Churches have entertained it and the Common People every where tenderly embrace it as being most plausible to Flesh and blood for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude who magnifie Liberty as if the height of Humane Felicity were only to be found in it never remembring That the desire of Liberty was the first Cause of the Fall of Adam But howsoever this Vulgar Opinion hath of late obtained a great Reputation yet it is not to be found in the Ancient Fathers and Doctors of the Primitive Church It contradicts the Doctrine and History of the Holy Scriptures the constant Practice of all Ancient Monarchies and the very Principles of the Law of Nature It is hard to say whether it be more erroneous in Divinity or dangerous in Policy Yet upon the ground of this Doctrine both Jesuites and some other zealous favourers of the Geneva Discipline have built a perillous Conclusion which is That the People or Multitude have Power to punish or deprive the Prince if he transgress the Laws of the Kingdom witness Parsons and Buchanan the first under the name of Dolman in the Third Chapter of his First Book labours to prove that Kings have been lawfully chastised by their Commonwealths The latter in his Book De jure Regni apud Scotos maintains A Liberty of the People to depose their Prince Cardinal Bellarmine and Calvin both look asquint this way This desperate Assertion whereby Kings are made subject to the Censures and Deprivations of their Subjects follows as the Authors of it conceive as a necessary Consequence of that former Position of the supposed Natural Equality and Freedom of Mankind and Liberty to choose what form of Government it please And though Sir John Heywood Adam Blackwood John Barclay and some others have Learnedly Confuted both Buchanan and Parsons and bravely vindicated the Right of Kings in most Points yet all of them when they come to the Argument drawn from the Natural Liberty and Equality of Mankind do with one consent admit it for a Truth unquestionable not so much as once denying or opposing it whereas if they did but Confute this first erroneous Principle the whole Fabrick of this vast Engine of Popular Sedition would drop down of it self The Rebellious Consequence which follows this prime Article of the Natural Freedom of Mankind may be my Sufficient Warrant for a modest Examination of the original Truth of it much hath been said and by many for the Affirmative Equity requires that an Ear be reserved a little for the Negative In this DISCOURSE I shall give my self these Cautions First I have nothing to do to meddle with Mysteries of State such Arcana Imperii or Cabinet Counsels the Vulgar may not pry into An implicite Faith is given to the meanest Artificer in his own Craft how much more is it then due to a Prince in the profound Secrets of Government the Causes and Ends of the greatest politique Actions and Motions of State dazle the Eyes and exceed the Capacities of all men save only those that are hourly versed in the managing Publique Affairs yet since the Rule for each men to know in what to obey his Prince cannot be learnt without a relative Knowledge of those Points wherein a Sovereign may Command it is necessary when the Commands and Pleasures of Superiors come abroad and call for an Obedience that every man himself know how to regulate his Actions or his sufferings for according to the Quality of the Thing commanded an Active or Passive Obedience is to be yielded and this is not to limit the Princes Power but the extent of the Subjects Obedience by giving to Caesar the things that are Caesar's c. Secondly I am not to question or quarrel at the Rights or Liberties of this or any other Nation my task is chiefly to enquire from whom these first came not to dispute what or how many these are but whether they were derived from the Laws of Natural Liberty or from the Grace and bounty of Princes My desire and Hope is that the people of England may and do enjoy as ample Priviledges as any Nation under Heaven the greatest Liberty in the World if it be duly considered is for a people to live under a Monarch It is the Magna Charta of this Kingdom all other shews or pretexts of Liberty are but several degrees of Slavery and a Liberty only to destroy Liberty If such as Maintain the Natural Liberty of Mankind take Offence at the Liberty I take to Examine it they must take heed that they do not deny by Retail that Liberty which they affirm by Whole-sale For if the Thesis be true the Hypothesis will follow that all men may Examine their own Charters Deeds or Evidences by which they claim and hold the Inheritance
the Crown does escheat for want of an Heir Whether doth it not then Divolve 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 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 fit 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 Gods 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 Supream 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 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 only 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 Supreme Father over every Multitude although by the secret Will of God many at first do most unjustly obtain the Exercise of it To confirm this Natural Right of Regal Power we find in the Decalogue That the Law which enjoyns Obedience to Kings is delivered in the terms of Honour thy Father as if all power were originally in the Father If Obedience to Parents be immediately due 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 If we compare the Natural Rights of a Father with those of a King we find them all one without any difference at all but only 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 cloth instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Privileges so that all the Duties of a King are summed up in an Universal Fatherly Care of his People CHAP. II. It is unnatural for the People to Govern or Chose Governours 1. ARistotle examined about the Freedom of the People and justified 2. Suarez disputing against the Regality of Adam 3. Families diversly defined by Aristotle Bodin and others 4. Suarez contradicting Bellarmine 5. Of Election of Kings 6. By the Major part of the People 7. By Proxy and by silent Acceptation 8. No Example in Scripture of the Peoples chosing their King Mr. Hooker's Judgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Judgment of Monarchy 11. Imperfections of the Roman Democratie 12. Rome began her Empire under Kings and perfected under Emperours In danger the People of Rome always fled to Monarchy 13. Whether Democraties were invented to bridle Tyrants or rather that they came in by Stealth 14. Democraties vilified by their own Historians 15. Popular Government more bloody than Tyranny 16. Of a mixed Government of the King and People 17. The People may not judge or correct their King 18. No Tyrants in England since the Conquest 1. BY conferring these Proofs and Reasons drawn from the Authority of the Scripture it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude to chose what Rulers they please Had the Patriarchs their Power given them by their own Children Bellarmine does not say it but the Contrary If then the Fatherhood enjoyed this Authority for so many Ages by the Law of Nature when was it lost or when forfeited or how is it devolved to the Liberty of the Multitude Because the Scripture is not favourable to the Liberty of the People therefore many fly to Natural Reason and to the Authority of Aristotle I must crave Liberty to examine or explain the Opinion of this great Philosopher but briefly I find this Sentence in the Third of his Politiques Cap. 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It seems to some not to be natural for one man to be Lord of all the Citizens since a City consists of Equals D. Lambine in his Latine Interpretation of this Text hath omitted the Translation of this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this means he maketh that to be the Opinion of Aristotle which Aristotle alleadgeth to be the Opinion but of some This Negligence or Wilful Escape of Lambine in not translating a word so Material hath been an occasion to deceive many who looking no farther than this Latine Translation have concluded and made the World now of late believe that Aristotle here maintains a Natural Equality of Men and not only our English Translator of Aristotle's Politiques is in this place misled by following Lambine but even the Learned Monsieur Duvall in
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 Joas 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 Josias 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 Josias and slew the Conspirators of the Death of Ammon his Father which Justice of the People God rewarded by making this Josias 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 Common-weals 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 we not find that in every Family the Government of One Alone is most Natural God did always Govern his own People by Monarchy only The Patriarchs Dukes Judges and Kings were all Monarchs There is not in all the Scripture Mention or Approbation of any other Form of Government At the time when Scripture saith There was no King in Israel but that every Man did that which was Right in his Own Eyes Even then the Israelites were under the Kingly Government of the Fathers of particular Families For in the Consultation after the Benjamitical War for providing Wives for the Benjamites we find the Elders of the Congregation bare only Sway. Judges 21.16 To them also were Complaints to be made as appears by Verse 22. And though mention be made of all the Children of Israel all the Congregation and all the People yet by the Term of All the Scripture means only all the Fathers and not all the whole Multitude as the Text. plainly expounds it self in 2 Chron. 1.2 where Solomon speaks unto all Israel to the Captains the Judges and to every Governour the Chief of the Fathers so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 Kings 8.12 2 Chron. 5.2 At that time also when the People of Israel begg'd a King of Samuel they were Governed by Kingly Power God out of a special Love and Care to the House of Israel did choose to be their King himself and did govern them at that time by his Viceroy Samuel and his Sons and therefore God tells Samuel They have not rejected Thee but Me that I should not Reign over them It seems they did not like a King by Deputation but desired one by Succession like all the Nations All Nations belike had Kings then and those by Inheritance not by Election for we do not find the Israelites prayed that they themselves might choose their Own King they dream of no such Liberty and yet they were the Elders of Israel gathered together If other Nations had Elected their own Kings no doubt but they would have been as desirous to have imitated Other Nations as well in the Electing as in the Having of a King Aristotle in his Book of Politicks when he comes to compare the several Kinds of Government he is very reserved in discoursing what Form he thinks Best he disputes subtilely to and fro of many Points and Judiciously of many Errours but concludes nothing himself In all those Books I find little Commendation of Monarchy It was his Hap to live in those Times when the Graecians abounded with several Common-wealths who had then Learning enough to make them seditious Yet in his Ethicks he hath so much good Manners as to confess in right down words That Monarchy is the best Form of Government and a Popular Estate the worst And though he be not so free in his Politicks yet the Necessity of Truth hath here and there extorted from him that which amounts no less to the Dignity of Monarchy he confesseth it to be First the Natural and the Divinest Form of Government and that the Gods themselves did live under a Monarchy What can a Heathen say more Indeed the World for a long time knew no other sort of Government but only Monarchy The Best Order the Greatest Strength the Most Stability and easiest Government are to be found all in Monarchy and in no other Form of Government The New Platforms of Commonweals were first hatched in a Corner of the World amongst a few Cities of Greece which have been imitated by very few other places Those very Cities were first for many Years governed by Kings untill Wantonness Ambition or Faction of the People made them attempt new kinds of Regiment all which Mutations proved most Bloody and Miserable to the Authors of them happy in nothing but that they continued but a small time 11. A little to manifest the Imperfection of Popular Government let us but examine the most Flourishing Democracy that the World hath ever known I mean that of Rome First for the Durability at the most it lasted but 480 Years for so long it was from the Expulsion of Tarquin to Julius Caesar Whereas both the Assyrian Monarchy lasted without Interruption at the least twelve hundred Years and the Empire of the East continued 1495 Years 2. For the Order of it during these 480 Years there was
Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these Words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems St. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carried a Sword Wilt thou not be afraid of the Power that is the Ruler that carrieth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And St. Paul concludes for this Cause pay you Tribute also for they are God's Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to God's Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this Place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lord's sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoyneth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to manifest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a speaking Law he cannot mean that Kings themselves are an humane Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are humane Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Grammatical Construction Him the Relative must be referred to the next Antecedent which is King besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's Meaning is in short Obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor St. Paul intended other Form of Government than only Monarchical much less any Subjection of Princes to humane Laws That familiar Distinction of the School-men whereby they subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the positive Laws of any Nation since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King which no Man says is a Law to the King 4. There want not those who Believe that the first Invention of Laws was to bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens assoon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and tho many of their Laws were very severe and bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his Pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves so the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the People 5. The reason why Laws have been also made by Kings was this when Kings were either busied with Wars or distracted with publick Cares so that every private Man could not have Access to their Persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered to him in the Tables of his Laws that so there might be no need to resort unto the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The People have the Law as a Familiar Admonisher and Interpreter of the King's Pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-weal doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so
and the Bishop of Rochester were restored to the Possession of Detling and other Lands which Odo had withholden There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regià potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another w ch had quosque regni Proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northamptonshire Episcopis Abbatibus cunctisque regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his 3 d. year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigorniensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22 Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Arch-bishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovenden saith that the same King at Windsor apud Windeshores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in his 21 Year a Parliament at Windsor of Bishops Earls and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons This Parliament lasted but four days yet much was done in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolph of the Castle and Sherifwick of York The second day he required Judgment against his Brother John who was afterwards King and Hugh de Novant Bishop of Coventry The third day was granted to the King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fee for his Attendance into Normandy and all the Wool that year of the Monks Cisteaux which for that it was grievous and unsupportable they sine for Money The last day was for Hearing of Grievances and so the Parliament brake up And the same year held another at Northampton of the Nobles of the Realm King John in his fifth year He and his Great men met Rex Magnates convenerunt and the Roll of that year hath Commune Concilium Baronum Meorum the Common Councel of my Barons at Winchester In the sixth year of King Henry 3. the Nobles granted to the King of every Knights Fee two Marks in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20 H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Vsury should not run against a Ward from the Death of his Ancestor 21 Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the King's Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Matt. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22 Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdom 32 Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Matt. Westm ' 49 Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom Matt. Westminster At a Parliament at Marlborough 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in this Kings time is worth the observing and the rather for that it is much insisted on of late to make for Parliaments being above the King The words in Bracton are The King hath a Superiour God also the Law by which he is made King also his Court viz. the Earls and Barons The Court that was said in those days to be above the King was a Court of Earls and Barons not a word of the Commons or the representative Body of the Kingdom being any part of the Superiour Court Now for the true Sense of Bractons words how the Law and the Court of Earls and Barons are the Kings Superiours they must of Necessity be understood to be Superiours so far only as to advise and direct the King out of his own Grace and Good Will only which appears plainly by the Words of Bracton himself where speaking of the King he resolves thus Nec potest ei necessitatem aliquis imponere quod injuriam suam corrigat emendat cum superiorem non habeat nisi Deum satis ei erat ad poenam quod Dominum expectat ultorem Nor can any man put a necessity upon him to correct and amend his Injury unless he will himself since he hath no Superiour but God it will be sufficient Punishment for him to expect the Lord an Avenger Here the same man who speaking according to some mens Opinion saith the Law and Court of Earls and Barons are superiour to the King in this place tells us himself the King hath no Superiour but God the Difference is easily reconciled according to the Distinction of the School-men the King is free from the Coactive Power of Laws or Counsellors but may be subject to their Directive Power according to his own Will
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
had no formal Parliaments till about the 18 th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of his Privy Councel alone And the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after the establishment of the Parliament by colour of it that they had so great Daring If any desire to know the cause why Hen. 1. called the People to Parliament it was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the better to secure himself against Robert his elder Brother he flattered the People with those Charters yea King John that confirmed them had the like Respect for Arthur D. of Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original from Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had first an obscure Birth by Vsurpation was fostered and shewed to the World by Rebellion in brief the King called the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that the Commons were not called to Parliament until Hen. 3. days this appears by divers of the Precedents formerly cited to prove that the Barons were the Common Councel For though Hen. 1. called all the People of the Land to his Coronation and again in the 15. or 18. year of his Reign yet always he did not so neither many of those Kings that did succeed him as appeareth before Secondly For calling the Commons by Writ I find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words In ancient times after the King had summoned His Parliament innumerable multitudes of People did make their Access thereunto pretending that Privilege of Right to belong to them But King Hen. 3. having Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that none might come to His Parliament but those who were specially summoned To this purpose it is observed by Master Selden that the first Writs we find accompanied with other Circumstances of a Summons to Parliament as well for the Commons as Lords is in the 49 of Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these words King Hen. 3. out of a great Multitude which were seditious and turbulent called the very best by Writ or Summons to Parliament for he after many Troubles and Vexations between the King himself and Simon de Monefort with other Barons and after appeased did decree and ordain That all those Earls and Barons unto whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament and no others but that which he began a little before his Death Edward 1. and his Successors constantly observed and continued The said prudent King Edward summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Vnderstanding Also Mr. Cambden in another place saith that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well-Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10 H. 6. Our Lord the King ordained that Knights be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment hath ordained that if any Assault or Fray be made on them that come to Parliament or other Councel of the King the Party which made any such Affray or Assault shall pay double Damages and make Fine and Ransom at the Kings Will. 23 H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8 Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That
quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his qui potestatem revocabiliter dederunt ac proinde non idem est effectus nec jus idem Here he doth teach in plain words the Effect doth depend upon the Will of the People By this we may judge how improperly he useth the instance of a Woman that appoints her self a Husband whom she must always necessarily obey since the necessity of the continuance of the VVife's obedience depends upon the Law of God which hath made the Bond of Matrimony indissolvable Grotius will not say the like for the continuance of the Subjects obedience to the Prince neither will they say that VVomen may chuse Husbands as he tells us the People may chuse Kings by giving their Husbands as little power and for as little a time as they please Next it is objected That Tutors who are set over Pupils may be removed if they abuse their power Grotius answers In Tutore hoc procedit qui superiorem habet at in Imperiis quia progressus non datur in infinitum omnino in aliqua persona aut coetu consistendum est We must stay in some one Person or in a Multitude whose faults because they have no superiour Judge above them God hath witnessed that he will have a particular care of either to revenge them if he judge it needful or to tolerate them either for Punishment or Tryal of the People It is true in Kingdoms we cannot proceed in infinitum yet we may and must go to the highest which by Grotius his Rule is the People because they first made Kings so that there is no need to stay in aliqua persona but in coetu in the People so that by his Doctrine Kings may be punished by the People but the faults of the People must be left to the Judgment of God I have briefly presented here the desperate Inconveniences which attend upon the Doctrine of the natural freedom and community of all things these and many more Absurdities are easily removed if on the contrary we maintain the natural and private Dominion of Adam to be the fountain of all Government and Propriety And if we mark it well we shall find that Grotius doth in part grant as much The ground why those that now live do obey their Governours is the Will of their Forefathers who at the first ordained Princes and in obedience to that Will the Children continue in subjection this is according to the mind of Grotius so that the Question is not Whether Kings have a fatherly Power over their Subjects but how Kings came first by it Grotius will have it that our Forefathers being all free made an Assignment of their Power to Kings the other Opinion denies any such general freedom of our Forefathers but derives the Power of Kings from the Original Dominion of Adam This natural Dominion of Adam may be proved out of Grotius himself who teacheth That generatione jus acquiritur Parentibus in Liberos and that naturally no other can be found but the Parents to whom the Government should belong and the Right of Ruling and Compelling them doth belong to Parents And in another place he hath these words speaking of the fifth Commandment Parentum nomine qui naturales sunt Magistratus etiam alios Rectores par est intelligi quorum authoritas Societatem humanam continet and if Parents be natural Magistrates Children must needs be born natural Subjects But although Grotius acknowledge Parents to be natural Magistrates yet he will have it that Children when they come to full age and are separated from their Parents are free from natural Subjection For this he offers proof out of Aristotle and out of Scripture First for Aristotle we must note he doth not teach that every separation of Children of full age is an Obtaining of liberty as if that men when they come to years might voluntarily separate themselves and cast off their natural Obedience but Aristotle speaks only of a passive Separation for he doth not say that Children are subject to Parents until they do separate but he saith until they be separated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Verb of the Passive Voice That is until by Law they be separated for the Law which is nothing else but the Will of him that hath the Power of the Supreme Father doth in many cases for the publick Benefit of Society free Children from subjection to the subordinate Parent so that the natural Subjection by such Emancipation of Children is not extinguished but only assumed and regulated by the Parent paramount Secondly Grotius cites Numb 30. to prove that the power of the Fathers over the Sons and Daughters to dissolve their Vows was not perpetual but during the time only whilst the Children were part of the Fathers Family But if we turn to the Chapter we may find that Grotius either deceives himself or us for there is not one word in that Chapter concerning the Vows of Sons but of Daughters only being in their Father's Family and the being of the Daughter in the Father's House meaneth only the Daughter 's being a Virgin and not married which may be gathered by the Argument of the whole Chapter which taketh particular order for the Vows of VVomen of all estates First for Virgins in the third Verse Secondly for VVives in general in the sixth Verse Thirdly for VVidows and VVomen divorced in the ninth Verse There is no Law for Virgins out of their Father's Houses we may not think they would have been omitted if they had been free from their Fathers we find no freedom in the Text for VVomen till after Marriage And if they were married though they were in their Father's Houses yet the Fathers had no power of their Vows but their Husbands If by the Law of Nature departure from the Father's House had emancipated Children why doth the Civil Law contrary to the Law of Nature give power and remedy to Fathers for to recover by Action of Law their Children that depart or are taken away from them without their consent Without the consent of Parents the Civil Law allows no emancipation Concerning Subjection of Children to Parents Grotius distinguisheth three several times The first is the time of Imperfect Judgment The second is the time of Perfect Judgment but whilst the Son remains part of the Father's Family The third is the time after he hath departed out of his Father's Family In the first time he saith All the actions of Children are under the dominion of the Parents During the second time when they are of the age of mature Judgment they are under their Father's command in those actions only which are of moment for their Parents Family In other actions the Children have a power or moral faculty of doing but they are bound in those
belong to one Kingdom and what to another it follows that the original freedom of mankind being supposed every man is at liberty to be of what Kingdom he please and so every petty company hath a Right to make a Kingdom by it self and not only every City but every Village and every Family nay and every particular man a liberty to chuse himself to be his own King if he please and he were a madman that being by nature free would chuse any man but himself to be his own Governour Thus to avoid the having but of one King of the whole world we shall run into a liberty of having as many Kings as there be men in the world which upon the matter is to have no King at all but to leave all men to their natural liberty which is the mischief the Pleaders for natural liberty do pretend they would most avoid But if neither the whole people of the world nor the whole people of any part of the world be meant but only the major part or some other part of a part of the world yet still the objection will be the stronger For besides that nature hath made no partition of the world or of the people into distinct Kingdoms and that without an universal consent at one and the same instant no partition can be made yet if it were lawful for particular parts of the world by consent to chuse their Kings nevertheless their elections would bind none to subjection but only such as consented for the major part never binds but where men at first either agree to be so bound or where a higher power so commands Now there being no higher power than nature but God himself where neither nature nor God appoints the major part to bind there consent is not binding to any but only to themselves who consent Yet for the present to gratifie them so far as to admit that either by nature or by a general consent of all mankind the world at first was divided into particular Kingdoms and the major part of the people of each Kingdom assembled allowed to chuse their King yet it cannot truly be said that ever the whole people or the major part or indeed any considerable part of the whole people of any Nation ever assembled to any such purpose For except by some secret miraculous instinct they should all meet at one time and place what one man or company of men less than the whole people hath power to appoint either time or place of elections where all be alike free by nature and without a lawful summons it is most unjust to bind those that be absent The whole People cannot summon it self one man is sick another is lame a third is aged and a fourth is under age of discretion all these at some time or other or at some place or other might be able to meet if they might chuse their own time and place as men naturally free should In Assemblies that are by humane politique constitution the superior power that ordains such assemblies can regulate and confine them both for time place persons and other circumstances but where there is an equality by nature there can be no superior power there every Infant at the hour it is born in hath a like interest with the greatest and wisest man in the World Mankind is like the sea ever ebbing or flowing every minute one is born another dies those that are the People this minute are not the People the next minute in every instant and point of time there is a variation no one time can be indifferent for all mankind to assemble it cannot but be mischievous always at the least to all Infants and others under age of discretion not to speak of Women especially Virgins who by birth have as much natural freedom as any other and therefore ought not to lose their liberty without their own consent But in part to salve this it will be said that Infants and Children may be concluded by the votes of their Parents This remedy may cure some part of the mischief but it destroys the whole cause and at last stumbles upon the true original of Government For if it be allowed that the acts of Parents bind the Children then farewel the Doctrine of the natural freedom of mankind where Subjection of Children to Parents is natural there can be no natural freedom If any reply that not all Children shall be bound by their Parents consent but only those that are under age It must be considered that in nature there is no nonage if a man be not born free she doth not assign him any other time when he shall attain his freedom or if she did then Children attaining that age should be discharged of their Parents contract So that in conclusion if it be imagined that the People were ever but once free from Subjection by nature it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever without apparent wrong to a multitude of People It is further observable that ordinarily Children and Servants are far a greater number than Parents and Masters and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject unto is most unnatural and in effect to give the Children the government over their Parents To all this it may be opposed What need dispute how a People can chuse a King since there be multitude of examples that Kings have been and are now adays chosen by their People The answer is 1. The question is not of the fact but of the right whether it have been done by a natural or by an usurped right 2. Many Kings are and have been chosen by some small part of a people but by the whole or major part of a Kingdom not any at all Most have been elected by the Nobility Great men and Princes of the blood as in Poland Denmark and in Sweden not by any collective or representative body of any Nation sometimes a factious or seditious City or a mutinous Army hath set up a King but none of all those could ever prove they had Right or just title either by Nature or any otherwise for such elections We may resolve upon these two propositions 1. That the people have no power or right of themselves to chuse Kings 2. If they had any such right it is not possible for them any way lawfully to exercise it You will say There must necessarily be a right in some body to elect in case a King die without an Heir I answer No King can die without an Heir as long as there is any one man living in the world It may be the Heir may be unknown to the people but that is no fault in nature but the negligence or ignorance of those whom it concerns But if a King could die without an Heir yet the Kingly power in that case shall not escheat to
the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief Fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1.2 where Solomon speaks to All Israel that is to the Captains the Judges and to every Governour the CHIEF OF THE FATHERS and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel 1 King 8.1 and the 2 Chr. 5.2 If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their People or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the other subject unto him every man by nature is a King or a Subject the obedience which all Subjects yield to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon God's providence who only hath right to give and take away Kingdoms and thereby to adopt Subjects into the obedience of another fatherly power according to that of Arist 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Monarchy or Kingdom will be a fatherly government Ethic. l. 8. c. 12. However the natural freedom of the People be cried us as the sole means to determine the kind of Government and the Governours yet in the close all the favourers of this opinion are constrained to grant that the obedience which is due to the fatherly Power is the true only cause of the Subjection which we that are now living give to Kings since none of us gave consent to Government but only our Fore-fathers act and consent hath concluded us Whereas many confess that Government only in the abstract is the ordinance of God they are not able to prove any such ordinance in the Scripture but only in the fatherly power and therefore we find the Commandment that enjoyns obedience to Superiours given in the terms of Honour thy Father so that not only the Power or right of Government but the form of the power of governing and the person having that power are all the ordinance of God the first Father had not only simply power but power Monarchical as he was a Father immediately from God For by the appointment of God as soon as Adam was created he was Monarch of the World though he had no Subjects for though there could not be actual Government until there were Subjects yet by the right of nature it was due to Adam to be Governour of his posterity though not in Act yet at least in habit Adam was a King from his Creation And in the state of innocency he had been Governour of his Children for the integrity or excellency of the Subjects doth not take away the order or eminency of the Governour Eve was subject to Adam before he sinned the Angels who are of a pure nature are subject to God which confutes their saying who in disgrace of civil Government or power say it was brought in by sin Government as to coactive power was after sin because coaction supposeth some disorder which was not in the state of innocency But as for directive power the condition of humane nature requires it since civil Society cannot be imagined without power of Government for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done yet things indifferent that depended meerly on their free will might be directed by the power of Adam's command If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was we may find the division of the Earth into distinct Kingdoms and Countries by several families whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right and for the preservation of this power and right in the Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom as appears by the words of the Text Gen. 10. These are the Families of the Sons of Noah after their generations in their Nations and by these were the Nations divided in the Earth after the floud Every one after HIS TONGUE AFTER THEIR FAMILIES in their Nations The Kings of England have been graciously pleased to admit and accept the Commons in Parliament as the Representees of the Kingdom yet really and truly they are not the representative body of the whole Kingdom The Commons in Parliament are not the representative body of the whole Kingdom they do not represent the King who is the head and principal member of the Kingdom nor do they represent the Lords who are the nobler and higher part of the body of the Realm and are personally present in Parliament and therefore need no representation The Commons only represent a part of the lower or inferior part of the body of the People which are the Free-holders worth 40 s. by the year and the Commons or Free-men of Cities and Burroughs or the major part of them All which are not one quarter nay not a tenth part of the Commons of the Kingdom for in every Parish for one Free-holder there may be found ten that are no Freeholders and anciently before Rents were improved there were nothing near so many Free-holders of 40 s. by the year as now are to be found The scope and Conclusion of this discourse and Argument is that the people taken in what notion or sense soever either diffusively collectively or representatively have not nor cannot exercise any right or power of their own by nature either in chusing or in regulating Kings But whatsoever power any people
should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Jurisdictions Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Jurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not only be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the People may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Jurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Justice But he doth not name so much as one Country or Kingdom that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdom that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdoms or no where is such a moderated Government as our Observator means to be found A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern People as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdom the Nobility who have great Authority in the Diets chusing the King and limiting his Authority making his Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his Daughter and the other for his Son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the Book called the Estates of the World doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute power not only of their estates but also of Life and Death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in War Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publick consultations notwithstanding that they had Absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over his Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for his election yet in many things it is Absolute after he is chosen He appoints the Diets at what time and place he pleaseth he chooseth Lay-Councellers and nominates the Bishops and whom he will have to be his Privy Council He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in his power to advance and reward whom he pleaseth He is Lord immediate of his Subjects but not of his Nobility He is Soveraign Judge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs his Subjects which are immediately his with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Jurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place near to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their Authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Council refused his Senators place to become one of these Officers Every Palatine the King requiring it calls together all the Nobility of his Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these Deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to find among them that the whole Community in its underived Majesty doth ever convene to do Justice nor any election or representation of the Community or that the People assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarch The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his
none can deny That they differed in their degrees of punishments is possible there are but three sorts that can be proved were to be put to death viz. the Witch the Familiar Spirit the Wisard As for the Witch there hath been some doubt made of it The Hebrew Doctors that were skill'd in the Laws of Moses observe that wheresoever one was to dye by their Law the Law always did run in an affirmative Precept as the man shall be stoned shall dye shall be put to death or the like but in this Text and no where else in Scripture the sentence is only a Prohibition negative Thou shalt not suffer a Witch to live and not Thou shalt put her to death or stone her or the like Hence some have been of opinion that not to suffer a Witch to live was meant not to relieve or maintain her by running after her and rewarding her The Hebrews seem to have two sorts of Witches some that did hurt others that did hold the eyes that is by jugling and slights deceived mens senses The first they say was to be stoned the other which according to the proper notation of the word was the true Witch was only to be beaten The Septuagint have translated a Witch an Apothecary a Druggister one that compounds poisons and so the Latin word for a Witch is Venefica a maker of poisons if any such there ever were or be that by the help of the Devil do poison such a one is to be put to death though there be no Covenant with the Devil because she is an Actor and Principal her self not by any wonder wrought by the Devil but by the natural or occult property of the Poyson For the time of Christ saith Mr. Perkins though there be no particular mention made of any such Witch yet thence it followeth not that there were none for all things that then happened are not recorded and I would fain know of the chief Patrons of them whether those persons possessed with the Devil and troubled with strange Diseases whom Christ healed were not bewitched with some such people as our Witches are If they say no let them if they can prove the contrary Here it may be thought that Mr. Perkins puts his Adversaries to a great pinch but it doth not prove so for the Question being only whether those that were possessed in our Saviour's Time were bewitched The Opposers of Mr. Perkins say they were not bewitched but if he or any other say they were the Proof will rest wholly on him or them to make good their Affirmative it cannot in reason be expected that his Adversaries should prove the Negative it is against the Rules of Disputation to require it FINIS Patriarcha OR THE Natural Power OF KINGS· By the Learned Sir ROBERT FILMER Baronet Lucan Lib. 3. Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Poincipe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed for Ric. Chiswell in St. Paul's Church-Yard Matthew Gillyflower and William Henchman in Westminster Hall 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Fylmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which Respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the Loss of my Preferment in the Church of Westminster which gave me the Opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the Infelicity than I am at this present in reference to that Satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or chose Governours 1 ARistotle examined about the Freedom of the People and justified 2 Suarez disputes against the Regality of Adam 3 Families diversly defined by Aristotle Bodin and others 4 Suarez contradicting Bellarmine 5 Of Election of Kings 6 By the major part of the People 7 By Proxie and by silent Acceptation 8 No example in Scripture for the Peoples chosing their King Mr. Hooker's Judgment therein 9 God governed always by Monarchy 10 Bellarmine and Aristotles judgment of Monarchy 11 Imperfections of the Roman Democratie 12 Rome legan her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 Whether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Hystorians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judg not correct their King 18 No Tyrants in England since the Conquest CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1 REgal Authority not subject to Positive Laws Kings
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel's description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oaths of Kings 8. Of the Benefit of the King's Prerogative over Laws 9. the King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavoured to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the People do subject the Exercise of it to Positive Laws But in this also they err for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the Profit of every Man in particular and of all together in general is not always one and the same and that the Publick is to be preferred before the Private And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the Mischiefs in Monarchy or else a prophetical Description only of the future ill Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy wherein it is evidently shewed that the Scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient for by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this Point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both no Remedy in the Text against Tyrants but in crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckoned by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and Inferiour Lords To serve the King in his Wars and to till his Ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by