to judge them if the dernier resort be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did not thereby lose his Authority to be Judge himself when he pleased even in the smallest Matters much less in the greatest which he reserved to himself so Kings by delegating others to judg under them do not hereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Judges that they give Judgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duly executed and when not as also to compel the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this purpose doth presume that the King hath all Laws within the Cabinet of His Breast in Scrinio pectoris saith Campton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Justices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Justices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Justices as before the King himself arraigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Exchequer and there set down Order for the Appearance of Sheriffs and bringing in their Accounts there was five Marks set on every Sheriffs Head for a Fine because they had not distrained every Person that might dispend fifteen pounds Lands by the Year to receive the Order of Knighthood according as the same Sheriffs were commanded In Michaelmas Term 1462. Edw. 4. sate three days together in open Court in the Kings Bench. For this Point there needs no further Proofs because Mr. Pryn doth confess that Kings themselves have sate in Person in the Kings Bench and other Courts and there given Judgment p. 32. Treachery and Disloyalty c. Notwithstanding all that hath been said for the Legislative and Judicial Power of Kings Mr. Pryn is so far from yielding the King a Power to make Laws that he will not grant the King a Power to hinder a Law from being made that is he allows Him not a Negative Voice in most Cases which is due to every other even to the meanest Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice his main and in Truth his only Argument insisted on is a Coronation-Oath which is said anciently some of our Kings of England have taken wherein they grant to defend and protect the just Laws and Customs which the Vulgar hath or shall chuse Justas Leges Consuetudines quas Vulgus elegerit hence Mr. Pryn concludes that the King cannot deny any Law which the Lords and Commons shall make Choice of for so he will have vulgus to signifie Though neither our King nor many of his Predecessors ever took this Oath nor were bound to take it for ought appears yet we may admit that our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that Vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedent Consuetudines that is the Customs which the Vulgar hath or shall chuse Do but observe the Nature of Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out of mind creates a Custom and the commoner an Usage is the stronger and the better is the Custom no where can so common an Usage be found as among the Vulgar who are still the far greatest part of every Multitude if a Custom be common through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lords and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings Negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor I think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in cases of greatest Moment even in case of High
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiting with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Judge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant No Man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but God's Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apology for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and all that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his Words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger let none presume to search into his Deeds much less to oppose them When the Jews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the People nor advised them to stay their Payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their
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
it such an evil as the party that suffers or the publick cannot be accessory to let the case be never so small yet if there be illegality in the act it strikes at the very being of limited Monarchy which is to be legal unless our Author will say as in effect he doth That his limited Monarch must govern according to Law in great and publick matters only and that in smaller matters which concern private men or poor persons he may rule according to his own will Secondly our Author tells us If the Monarchs act of exorbitancy or transgression be mortal and such as suffered dissolves the frame of Government and publick liberty then the illegality is to be set open and redresment sought by petition which if failing prevention by resistance ought to be and if it be apparent and appeal be made to the consciences of mankind then the fundamental Laws of that Monarchy must judge and pronounce the sentence in every mans conscience and every man so far as concerns him must follow the evidence of Truth in his own soul to oppose or not to oppose according as he can in conscience acquit or condemn the act of the Governour or Monarch Whereas my Author requires that the destructive nature of illegal commands shall be set open Surely his mind is That each private man in his particular case should make a publick remonstrance to the World of the illegal act of the Monarch and then if upon his Petition he cannot be relieved according to his desire he ought or it is his duty to make resistance Here I would know who can be the Judge whether the illegality be made apparent It is a main point since every man is prone to flatter himself in his own cause and to think it good and that the wrong or injustice he suffers is apparent when other moderate and indifferent men can discover no such thing and in this case the judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erroneous Yet our Author will have an Appeal made to the Conscience of all Mankind and that being made he concludes The Fundamental Laws must judge and pronounce Sentence in every mans Conscience Whereas he saith The Fundamental Laws must judge I would very gladly learn of him or of any other for him what a Fundamental Law is or else have but any one Law named me that any man can say is a Fundamental Law of the Monarchy I confess he tells us That the Common Laws are the foundation and the Statute Laws are superstructive yet I think he dares not say that there is any one branch or part of the Common Law but that it may be taken away by an Act of Parliament for many points of the Common Law de facto have and de jure any point may be taken away How can that be called Fundamental which hath and may be removed and yet the Statute-Laws stand firm and stable It is contrary to the nature of Fundamental for the building to stand when the foundation is taken away Besides the Common Law is generally acknowledged to be nothing else but common usage or custom which by length of time only obtains authority So that it follows in time after Government but cannot go before it and be the rule to Government by any original or radical Constitution Also the Common Law being unwritten doubtful and difficult cannot but be an uncertain rule to govern by which is against the nature of a Rule which is and ought to be certain Lastly by making the Common Law only to be the foundation Magna Charta is excluded from being a Fundamental Law and also all other Statutes from being limitations to Monarchy since the Fundamental Laws only are to be Judge Truly the Conscience of all mankind is a pretty large Tribunal for the Fundamental Laws to pronounce Sentence in It is very much that Laws which in their own nature are dumb and always need a Judge to pronounce Sentence should now be able to speak and pronounce Sentence themselves Such a Sentence surely must be upon the hearing of one party only for it is impossible for a Monarch to make his defence and answer and produce his Witnesses in every mans conscience in each mans Cause who will but question the legality of the Monarchs Government Certainly the sentence cannot but be unjust where but one mans tale is heard For all this the conclusion is Every man must oppose or not oppose the Monarch according to his own conscience Thus at the last every man is brought by this Doctrine of our Authors to be his own Judge And I also appeal to the consciences of all mankind whether the end of this be not utter confusion and Anarchy Yet after all this the Author saith This power of every mans judging the illegal acts of the Monarch argues not a Superiority of those who judge over him who is judged and he gives a profound reason for it his words are It is not authoritative and civil but moral residing in reasonable creatures and lawful for them to execute What our Author means by these words not authoritative and civil but moral perhaps I understand not though I think I do yet it serves my turn that he saith That resistance ought to be made and every man must oppose or not oppose according as in conscience he can acquit or condemn the acts of his Governour for if it enable a man to resist and oppose his Governour without question 't is authoritative and civil Whereas he adds That moral judgment is residing in reasonable creatures and lawful for them to execute he seems to imply that authoritative and civil Judgment doth not reside in reasonable creatures nor can be lawfully executed Such a Conclusion fits well with Anarchy for he that takes away all Government and leaves every man to his own conscience and so makes him an independent in State may well teach that authority resides not in reasonable creatures nor can be lawfully executed I pass from his absolute and limited Monarchy to his division or partition for he allows no division of Monarchy into simple and mixed viz. of a Monarch the Nobility and Community Where first observe a doubt of our Authors Whether a firm union can be in a mixture of equality he rather thinks there must be a priority of order in one of the three or else there can be no unity He must know that priority of order doth not hinder but that there may be an equality of mixture if the shares be equal for he that hath the first share may have no more than the others so that if he will have an inequality of mixture a primity of share will not serve the turn the first share must be greater or better than the others or else they will be equal and then he cannot call it a mixed Monarchy where only
Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself only with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime Principle That all Monarchies except that of the Jews depend upon humane designment when the consent of a Society of men and a fundamental Contract of a Nation by original or radical Constitution confers Power he must know that Aristotle searching into the Original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the Right of Fathers and not from the Gift or Contract of People his words may thus be Englished At the first Cities were governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first Society made of many Houses is a Village which naturally seems to be a Colony of a House which some call Foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotle's judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotle's judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Vnto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his People are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Justice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Privileges Much less should a Prince 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 mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the People is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Commonwealths of which their opinion there is neither reason nor ground for if the King be subject unto the assemblies and Decrees of the people he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Commonwealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Commonweal Such states wherein the rights of Soveraignty are divided are not rightly to be called Commonweals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Commonweals which change their state the Sovereign right power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his Pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without Society saith the Observator men could not live without Laws men could not be sociable and without Authority
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
might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and leave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Vlpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws 9. If the Nature of Laws be advisedly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior Power Laws are divided as Bellarmine divides the Word of God into written and unwritten not for that it is not written at all but because it was not written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered that for every Custom there was a time when it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands of Kings at first unwritten Nor must we think the Common Customs which are the Principles of the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivered by Moses there be only certain Principal Laws which did not determine but only direct the High-priest or Magistrate whose Judgment in special Cases did determine what the General Law intended It is so with the Common Law for when there is no perfect Rule Judges do resort to those Principles or Common-Law Axiomes whereupon former Judgments in Cases somewhat like have been delivered by former Judges who all receive Authority from the King in his Right and Name to give Sentence according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where there have been Presidents to direct they upon better Reason only have changed the Law both in Causes Criminal and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their Reasons thence it is that some Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellour Egerton proves by several Instances Nor is this spoken to derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles written and established for witness to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law speaks in General and something falls out after besides the General Rule Then it is fit that what the Law maker hath omitted or where he hath erred by speaking generally it should be corrected or supplied as if the Law-maker himself were present to Ordain it The Governour whether he be one Man or more ought to be Lord over all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot determine it leaves to the Governours to give Judgment therein and permits them to rectify whatsoever upon Tryal thy find to be better than the Written Laws Besids all Laws are of themselves dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the Truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still representatively present in all Courts the Judges are but substituted and called the King's Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if he were able since by virtue of his Oath he is bound to it therefore the King ought to exercise Power as the Vicar or Minister of God But if our Lord the King be not able to determine every Cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise-Men fearing God c. and make Justices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by John Briton Bishop of Hereford We will saith he that Our own Jurisdiction be above all the Jurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions personal or real We have Power to yield such Judgements as do appertain without other Process wheresoever we know the Right Truth as Judges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by
to Governors in Dangerous and Doubtful Times II. Reflections concerning the Original of Government upon 1. Aristotle's Politiques 2. Mr. Hobs's Leviathan 3. Mr. Milton against Salmasius 4. H. Grotius De Jure Belli 5. Mr. Hunton's Treatise of Monarchy or the Anarchy of a limited or mixed Monarchy III. A Succinct Examination of the Fundamentals of Monarchy both in this and other Kingdoms as well about the Right of Power in Kings as of the Original and Natural Liberty of the People A Question never yet Disputed though most necessary in these Times IV. The Power of Kings And in Particular of the King of England V. An Advertisement to the Jury-Men of England touching Witches Together with a Difference between an English and Hebrew Witch VI. PATRIARCHA Or the Natural Power of KINGS The Argument A Presentment of divers Statutes Records and other Precedents explaining the Writs of Summons to Parliament shewing I. That the Commons by their Writ are only to Perform and Consent to the Ordinances of Parliament II. That the Lords or Common Councel by their Writ are only to Treat and give Counsel in Parliament III. That the King himself only Ordains and makes Laws and is Supreme Judge in Parliament With the Suffrages of Hen. de Bracton Jo. Britton Tho. Egerton Edw. Coke Walter Raleigh Rob. Cotton Hen. Spelman Jo. Glanvil Will. Lambard Rich. Crompton William Cambden and Jo. Selden THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the King and His Parliament EVery Free-holder that hath a Voice in the Election of Knights Citizens or Burgesses for the Parliament ought to know with what Power he trusts those whom he chooseth because such Trust is the Foundation of the Power of the House of Commons A Writ from the King to the Sheriff of the County is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ and in the Writ there is also expressed the Duty and Power of the Knights Citizens and Burgesses that are there elected The means to know what Trust or Authority the Countrey or Free-holders confer or bestow by their Election is in this as in other like Cases to have an eye to the words of the Commission or Writ it self thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission greater or other Trust than is comprised in the Body of the Writ the Free-holders do not or cannot give if they obey the Writ the Writ being Latine and not extant in English few Free-holders understand it and fewer observe it I have rendred it in Latine and English Rex Vicecomiti salut ' c. QVia de Advisamento Assensu Concilii nostri pro quibusdam arduis urgentibus Negotiis Nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud Civitatem nostram West duodecimo die Novembris prox ' futur ' teneri ordinavimus ibid ' cum Praelatis Magnatibus Proceribus dicti regni nostri colloquium habere tract ' Tibi praecipimus firmiter injungentes quod facta proclam ' in prox ' comitat ' tuo post receptionem hujus brevis nostri tenend ' die loco praedict ' duos milit ' gladiis cinct ' magis idoneos discretos comit ' praedicti de qualib ' civitate com' illius duos Cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuerint juxta formam statutorum inde edit ' provis ' eligi nomina corundum milit ' civium Burgensium sic electorum in quibusdam indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi electi praesentes fuerint vel absentes inseri cósque ad dict' diem locum venire fac ' Ita quod iidem milites plenam sufficientem potestatem pro se communitate comit ' praedicti ac dict' Cives Burgenses pro se communitat ' Civitatum Burgorum praedictorum divisim ab ipsishabeant ad faciendum consentiendum his quae tunc ibid ' de communi Consilio dicti reg nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem milit ' Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovismodo Nolumus autem quod tu nec aliquis alius vic' dicti reg nostri aliqualiter sit electus Et electionem illam in pleno comitatu factam distincte aperte sub sigillo tuo sigillis eorum qui electioni illi interfuerint nobis in cancellar ' nostram ad dict' diem locum certifices indilate remittens nobis alteram partem indenturarum praedictarum praesentibus consut ' una cum hoc breve Teste meipso apud Westmon ' The King to the Sheriff of Greeting WHereas by the Advice and Consent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of our Kingdom of England and the English Church We have ordained a certain Parliament of ours to be held at Our City of _____ the _____ day of _____ next ensuing and there to have Conference and to treat with the Prelates Great men and Peers of our said Kingdom We command and straitly enjoyn you that making Proclamation at the next County-Court after the Receipt of this our Writ to be holden the day and place aforesaid You cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens of every Borough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen by them who shall be present at such Proclamation according to the Tenor of the Statutes in that case made and provided and the Names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the Parties so elected be present or absent and shall make them to come at the said day and place so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Boroughs may have severally from them full and sufficient Power to Perform and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common Councel of our said Kingdom concerning the Businesses aforesaid So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses But We will not in any
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent forasmuch as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 H. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcel of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3.16 a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet he confesseth that by their Writ they have power both to treat and to give Counsel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with us the Prelates Great men and Peers to treat and give your Counsel The Words of the Judges Writ are That you be present with Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have liberty in the upper House it self upon leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Judges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31 Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made Sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes there Sir John Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with him in giving Judgement But if by no Vote is meant He hath no Power to judge we despoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King
to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in Conference with their Lordships without Prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their Not assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in Conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament He marvail'd the House stood either at the granting of a Subsidy or time of Payment when all we have is her Majesties and She may lawfully at her Pleasure take it from us and that she had as much Right to all our Lands and Goods as to any Revenue of the Crown and he said he could prove it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon w ch this Serjeant at Law went may be thought the same Sir Ed. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors and Royalties they reserved to themselves and of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above and before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights see was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will and also will have it so le Roy remercie ses loyaux Subjects accept leur benevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so are the only words that makes the Act of Subsidy a Law to bind every man to the Payment of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common-Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the Return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in be stowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King James who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling it their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use such Antimonarchical words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favours of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING FORMS of GOVERNMENT Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times Licensed and Entred according to Order for Richard Royston A Book Entituled Observations upon Aristotle's Politiques touching Forms of Government Together with Directions for Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Judge of till time hath tried it we read of many several ways
prevailed and obtained Leave to choose among themselves Magistrates called Tribunes of the People who by their Intercession might preserve the Commons from being oppressed and suffering Wrong from the Consuls and it was further agreed that the Persons of those Tribunes should be sacred and not to be touched by any By means of this Immunity of the Bodies of the Tribunes from all Arrests or other Violence they grew in time by Degrees to such Boldness that by stopping the Legal Proceedings of the Consuls when they pleased to intercede they raised such an Anarchy oft-times in Government that they themselves might act and take upon them what Power soever they pleased though it belonged not to them This Gallantry of the Tribunes was the Cause that the Commons of Rome who were diligent Pretenders to Liberty and the great Masters of this part of Politicks were thought the only famous Preservers and Keepers of the Liberty of Rome And to do them right it must be confessed they were the only men that truly understood the Rights of a Negative Voice if we will allow every man to be naturally free till they give their Consent to be bound we must allow every particular Person a Negative Voice so that when as all have equal Power and are as it were Fellow-Magistrates or Officers each man may impeach or stop his Fellow-Officers in their Proceedings this is grounded upon the general Reason of all them which have any thing in Common where he which forbiddeth or denieth hath most Right because his Condition in that Case is better than his which commandeth or moveth to proceed for every Law or Command is in it self an Innovation and a Diminution of some part of popular Liberty for it is no Law except it restrain Liberty he that by his Negative Voice doth forbid or hinder the Proceeding of a new Law doth but preserve himself in that Condition of Liberty wherein Nature hath placed him and whereof he is in present Possession the Condition of him thus in Possession being the better the stronger is his Prohibition any single man hath a juster Title to his Negative Voice than any Multitude can have to their Affirmative to say the People are free and not to be governed but by their own Consent and yet to allow a major part to rule the whole is a plain Contradiction or a destruction of natural Freedom This the Commons of Rome rightly understood and therefore the transcendent Power of the Negative Voice of any one Tribune being able of it self to stay all the Proceedings not of the Consuls and Senate only and other Magistrates but also of the rest of his Fellow-Tribunes made them seem the powerfullest men in all Rome and yet in Truth they had no Power or Jurisdiction at all nor were they any Magistrates nor could they lawfully call any man before them for they were not appointed for Administration of Justice but only to oppose the Violence and Abuse of Magistrates by interceding for such as appealed being unjustly oppressed for which Purpose at first they sate only without the Door of the Senate and were not permitted to come within the Doors this Negative Power of theirs was of force only to hinder but not to help the Proceedings in Courts of Justice to govern and not to govern the People And though they had no Power to make Laws yet they took upon them to propound Laws and flattered and humoured the Commons by the Agrarian and Frumentarian Laws by the first they divided the Common Fields and conquered Lands among the Common People and by the latter they afforded them Corn at a cheaper or lower price by these means these Demagogues or Tribunes of the Commons led the Vulgar by the Noses to allow whatsoever Usurpations they pleased to make in Government The Royal Power of the Consuls was never taken away from them by any Law that I hear of but continued in them all the time of their pretended popular Government to the very last though repined at and opposed in some particulars by the Commons The No-Power or Negative Power of the Tribunes did not long give content to the Commons and therefore they desired that one of the Consuls might be chosen out of the Commonalty the eager propounding of this Point for the Commons and the diligent opposing of it by the Nobility or Senate argues how much both Parties regarded the Sovereign Power of a Consul the Dispute lasted fourscore years within two the Tribunes pressing it upon all advantages of opportunity never gave over till they carried it by strong hand or stubbornness hindering all Elections of the Curule or greater Magistrates for five years together whereby the Nobles were forced to yield the Commons a Consul's Place or else an Anarchy was ready to destroy them all and yet the Nobility had for a good while allowed the Commons Military Tribunes with Consular Power which in effect or substance was all one with having one of the Consuls a Commoner so that it was the bare Name of a Consul which the Commons so long strived for with the Nobility In this contention some Years Consuls were chosen some years Military Tribunes in such Confusion that the Roman Historians cannot agree among themselves what Consuls to assign or name for each Year although they have Capitoline Tables Sicilian and Greek Registers and Kalenders Fragments of Capitoline Marbles linen Books or Records to help them a good while the Commons were content with the Liberty of having one of the Consuls a Commoner but about fourscore years after they enjoyed this Privilege a Desire took them to have it Enacted that a Decree of the Commons called a Plebiscitum might be observed for a Law Hortensius the Dictator yielded to enact it thereby to bring back the Seditious Commons who departed to Janiculum on the other side of Tybur because they were deeply engaged in Debt in regard of long Seditions and Dissensions The Eleventh Book of Livy where this Sedition is set down is lost we have only a touch of it in Florus his Epitome and Saint Augustine mentions the Plundering of many Houses by the Commons at their departing this Sedition was above 220 years after the Expulsion of Kings in all which time the People of Rome got the Spoyl of almost all Italy and the wealth of very many rich Cities and yet the Commons were in so great Penury and over-whelmed with Debts that they fell to plunder the rich Houses of the Citizens which sounds not much for the Honour of a popular Government This communicating of a Legislative Power to the Commons touching Power of enfranchising Allies Judgments Penal and Fines and those Ordinances that concerned the Good of the Commons called Plebiscita was a dividing of the Supreme Power and the giving a Share of it to others as well as to the Consuls and was in effect to destroy the Legislative Power for to have two Supremes is to have none because the one may destroy the
which Natural Reason appoints all men to use is the Law of Nations saith Theophilus in the Text of the Civil Law and in the second Book of the Instit cap. 1. Jus Naturae is confounded with Jus Gentium As the Civilians sometimes confound and sometimes separate the Law of Nature and the Law of Nations so other-whiles they make them also contrary one to the other By the Law of Nature all men are born free Jure naturali omnes liberi nascuntur But Servitude is by the Law of Nations Jure Gentium Servitus invasit saith Vlpian And the Civil Law not only makes the Law of Nature and of Nations contrary but also will have the Law of Nations contrary to it self War saith the Law was brought in by the Law of Nations Ex jure gentium introducta bella and yet the Law of Nations saith Since Nature hath made us all of one Kindred it follows it is not lawful for one man to lye in wait for another Cùm inter nos cognitionem quandam natura constituit consequens est hominem homini insidiari nefas esse saith Florentinus Again the Civil Law teacheth that from the Law of Nature proceeds the Conjunction of man and woman the Procreation and Education of Children But as for Religion to God and Obedience to Parents it makes it to be by the Law of Nations To touch now the Canon Law we may find in one place that men are governed either by the Law of Nature or by Customs Homines reguntur Naturali jure aut moribus The Law of Nations they call a Divine Law the Customs a humane Law Leges aut divinae sunt aut humanae divinae naturâ humanae moribus constant But in the next place the Canon Law makes Jus to be either Naturale aut Civile aut Gentium Though this Division agree in Terms with that of Vlpian in the Civil Law yet in the Explication of the Terms there is Diversity for what one Law makes to belong to the Law of Nature the other refers to the Law of Nations as may easily appear to him that will take the Pains to compare the Civil and Canon Law in these Points A principal Ground of these Diversities and Contrarieties of Divisions was an Error which the Heathens taught that all things at first were common and that all men were equal This mistake was not so heinous in those Ethnick Authors of the Civil Laws who wanting the Guide of the History of Moses were fain to follow Poets and Fables for their Leaders But for Christians who have read the Scriptures to dream either of a Community of all things or an Equality of all Persons is a Fault scarce pardonable To salve these apparent Contrarieties of Community and Property or Equality and Subjection the Law of Jus Gentium was first invented when that could not satisfie to mend the matter this Jus Gentium was divided into a Natural Law of Nations and an Humane Law of Nations and the Law of Nature into a Primary and a Secondary Law of Nature Distinctions which make a great sound but edifie not at all if they come under Examination If there hath been a time when all things were common and all men equal and that it be otherwise now we must needs conclude that the Law by which all things were common and men equal was contrary to the Law by which now things are proper and men subject If we will allow Adam to have been Lord of the World and of his Children there will need no such Distinctions of the Law of Nature and of Nations For the Truth will be that whatsoever the Heathens comprehended under these two Laws is comprised in the Moral Law That the Law of Nature is one and the same with the Moral may appear by a Definition given by Grotius The Law of Nature saith he is the Dictate of Reason shewing that in every Action by the agreeing or disagreeing of it with natural Reason there is a moral Honesty or Dishonesty and consequently that such an Action is commanded or forbidden by God the Author of Nature I cannot tell how Grotius would otherwise have defined the Moral Law And the Canon Law grants as much teaching that the Law of Nature is contained in the Law and the Gospel Whatsoever ye will that men do c. Mat. 7. The Term of Jus Naturae is not originally to be found in Scripture for though T. Aquinas takes upon him to prove out of the 2. to the Romans that there is a Jus Naturae yet St. Paul doth not use those express Terms his words are The Gentiles which have not the Law do by Nature the things contained in the Law these having not the Law are a Law unto themselves He doth not say Nature is a Law unto them but they are a Law unto themselves As for that which they call the Law of Nations it is not a Law distinct much less opposite to the Law of Nature but it is a small Branch or Parcel of that great Law for it is nothing but the Law of Nature or the moral Law between Nations The same Commandment that forbids one Private man to rob another or one Corporation to hurt another Corporation obliges also one King not to rob another King and one Commonwealth not to spoil another the same Law that enjoyns Charity to all men even to Enemies binds Princes and States to shew Charity to one another as well as private Persons And as the Common or Civil Laws of each Kingdom which are made against Treason Theft Murder Adultery or the like are all and every one of them grounded upon some particular Commandment of the moral Law so all the Laws of Nations must be subordinate and reducible to the moral Law The Law of Nature or the moral Law is like the main Ocean which though it be one entire Body yet several Parts of it have distinct Names according to the diversity of the Coasts on which they border So it comes to pass that the Law of Nations which is but a part of the Law of Nature may be sub-divided almost in infinitum according to the Variety of the Persons or Matters about which it is conversant The Law of Nature or the divine Law is general and doth only comprehend some Principles of Morality notoriously known of themselves or at the most is extended to those things which by necessary and evident Inference are consequent to those Principles Besides these many other things are necessary to the well governing of a Common-wealth and therefore it was necessary that by Humane Reason something more in particular should be determined concerning those things which could not be defined by Natural Reason alone hence it is that Humane Laws be necessary as Comments upon the Text of the Moral Law and of this Judgment is Aquinas who teacheth that necessitas legis humanae manat ex eo quod Lex naturalis vel Divina generalis est solum
complectitur quaedam principia morum per se nota ad summum extenditur ad ea quae necessaria evidenti elatione ex illis principiis consequuntur praeter illa verò multa alia sunt necessaria in republica ad ejus rectam Gubernationem ideo necessarium fuit ut per humanam rationem aliqua magis in particulari determinarentur circa ea quae per solam rationem naturalem definiri non possunt Ludo. Molin de Just. Thus much may suffice to shew the Distractions in and between the Civil and Common Laws about the Law of Nature and Nations In the next place we are to consider how Grotius distinguisheth these Laws To maintain the Community of things to be Natural Grotius hath framed new Divisions of the Law of Nature First in his Preface to his Books De Jure Belli Pacis he produceth a Definition of the Law of Nature in such doubtful obscure and reserved Terms as if he were diffident of his Undertaking Next in his first Book and first Chapter he gives us another Distribution which differs from his Doctrine in his Preface In his Preface his Principle is that the Appetite of Society that is to say of Community is an Action proper to man Here he presently corrects himself with an Exception that some other Creatures are found to desire Society and withal he answers the Objections thus that this Desire of Society in brute Beasts comes from some external Principle What he means by Principium intelligens extrinsecum I understand not nor doth he explain nor is it material nor is the Argument he useth to any purpose for admitting all he saith to be true yet his Principle fails for the Question is not from what Principle this Desire of Society proceeds in Beasts but whether there be such a Desire or no. Besides here he takes the Appetite of Society and Community to be all one whereas many live in Society which live not in Community Next he teacheth that the keeping of Society custodia Societatis which in a rude manner saith he we have now expressed is the fountain of that Law which is properly so called I conceive by the Law properly so called he intends the Law of Nature though he express not so much And to this appetite of Sociable Community he refers Alieni Abstinentia but herein it may be he forgets himself for where there is Community there is neither meum nor tuum nor yet alienum and if there be no alienum there can be no alieni abstinentia To the same purpose he saith that by the Law of Nature men must stand to bargains Juris naturae sit stare pactis But if all things were common by Nature how could there be any bargain Again Grotius tells us that from this signification of the Law there hath flowed another larger which consists saith he in Discerning what delights us or hurts us and in judging how things should be wisely distributed to each one This latter he calls the looser Law of Nature the former Jus Sociale the Law of Nature strictly or properly taken And these two Laws of Nature should have place saith he though men should deny there were a a God But to them that believe there is a God there is another Original of Law beside the Natural coming from the free Will of God to the which our own Vnderstanding tells us we must be subject Thus have I gathered the Substance of what is most material concerning the Law of Nature in his Preface If we turn to the Book it self we have a division of the Law into Jus Naturale Voluntarium Divinum Humanum Civile Latiùs patens Seu Jus Gentium Arctiùs patens Seu Paternum Seu Herile In the Definition of Jus Naturale he omits those Subtleties of Jus Naturae propriè dictum and quod laxius ita dicitur which we find in his Preface and gives such a plain Definition as may fitly agree to the Moral Law By this it seems the Law of Nature and the Moral Law are one and the same Whereas he affirmeth That the Actions about which the Law of Nature is conversant are lawful or unlawful of themselves and therefore are necessarily commanded or forbidden by God by which mark this Law of Nature doth not only differ from humane Law but from the Divine voluntary Law which doth not command or forbid those things which of themselves and by their own nature are lawful or unlawful but makes them unlawful by forbidding them and due by commanding them In this he seems to make the Law of Nature to differ from Gods Voluntary Law whereas in God Necessary and Voluntary are all one Salmasius de Vsuris in the twentieth Chapter condemns this Opinion of Grotius though he name him not yet he means him if I mistake not In the next place I observe his saying That some things are by the Law of Nature not propriè but reductivè and that the Law of Nature deals not only with those things which are beside the Will of Man but also with many things which follow the act of Man's Will so Dominion such as is now in Vse mans Will brought in but now that it is brought in it is against the Law of Nature to take that from thee against thy will which is in thy Dominion Yet for all this Grotius maintains That the Law of Nature is so immutable that it cannot be changed by God himself He means to make it good with a Distinction Some things saith he are by the Law of Nature but not simply but according to the certain state of things so the common use of things was natural as long as Dominion was not brought in and Right for every man to take his own by Force before Laws were made Here if Grotius would have spoken plain instead of but not simply but according to the certain State of Things he would have said but not immutably but for a certain Time And then this Distinction would have run thus Some things are by the Law of Nature but not immutably but for a certain time This must needs be the naked Sense of his Distinction as appears by his Explication in the Words following where he saith That the common Vse of Things was natural so long as Dominion was not brought in Dominion he saith was brought in by the will of man whom by this Doctrine Grotius makes to be able to change that Law which God himself cannot change as he saith He gives a double ability to man first to make that no Law of Nature which God made to be the Law of Nature And next to make that a Law of Nature which God made not for now that Dominion is brought in he maintains it is against the Law of Nature to take that which is in another man's dominion Besides I find no Coherence in these Words By the Law of Nature it was right for every man to take his own by force before Laws
made since by the Law of Nature no man had any thing of his own and until Laws were made there was no Propriety according to his Doctrine Jus Humanum voluntarium latius patens he makes to be the Law of Nations which saith he by the Will of All or Many Nations hath received a power to bind he adds of Many because there is as he grants scarce any Law to be found common to all Nations besides the Law of Nature which also is wont to be called the Law of Nations being common to all Nations Nay as he confesseth often That is the Law in one part of the World which in another part of the World is not the Law of Nations By these Sentences it seems Grotius can scarce tell what to make to be the Law of Nations or where to find it Whereas he makes the Law of Nations to have a binding Power from the Will of men it must be remembred That it is not sufficient for men to have a Will to bind but it is necessary also to have a Power to bind Though several Nations have one and the same Law For instance Let it be granted that Theft is punished by Death in many Countries yet this doth not make it to be a Law of Nations because each Nation hath it but as a Natural or Civil Law of their own Country and though it have a binding Power from the Will of many Nations yet because each Nation hath but a Will and Power to bind themselves and may without prejudice consent or consulting of any Neighbour-Nation alter this Law if they find Cause it cannot properly be called the Law of Nations That which is the foundation of the Law of Nations is to have it concern such things as belong to the mutual Society of Nations among themselves as Grotius confesseth and not of such things as have no further relation than to the particular Benefit of each Kingdom For as private men must neglect their own Profit for the Good of their Country so particular Nations must sometimes remit part of their Benefit for the Good of many Nations True it is that in particular Kingdoms and Commonwealths there be Civil and National Laws and also Customs that obtain the Force of Laws But yet such Laws are ordained by some supreme Power and the Customs are examined judged and allowed by the same supreme Power Where there is no Supreme Power that extends over all or many Nations but only God himself there can be no Laws made to bind Nations but such as are made by God himself we cannot find that God made any Laws to bind Nations but only the Moral Law as for the Judicial Law though it were ordained by God yet it was not the Law of Nations but of one Nation only and fitted to that Commonwealth If any think that the Customs wherein many Nations do consent may be called the Law of Nations as well as the Customs of any one Nation may be esteemed for National Laws They are to consider That it is not the being of a Custom that makes it lawful for then all Customs even evil Customs would be lawful but it is the Approbation of the supreme Power that gives a legality to the Custom where there is no Supreme Power over many Nations their Customs cannot be made legal The Doctrine of Grotius is That God immediately after the Creation did bestow upon Mankind in general a Right over things of inferiour Nature From whence it came to pass that presently every man might snatch what he would for his own Vse and spend what he could and such an Vniversal Right was then instead of Property for what every one so snatched another could not take from him but by Injury How repugnant this Assertion of Grotius is to the Truth of Holy Scripture Mr. Selden teacheth us in his Mare Clausum saying That Adam by Donation from God Gen. 1.28 was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children and by Donation and Assignation or some kind of Cession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City This Determination of Mr. Selden's being consonant to the History of the Bible and to natural Reason doth contradict the Doctrine of Grotius I cannot conceive why Mr. Selden should afterwards affirm That neither the Law of Nature nor the Divine Law do command or forbid either Communion of all things or private Dominion but permitteth both As for the general Community between Noah and his Sons which Mr. Selden will have to be granted to them Gen. 9.2 the Text doth not warrant it for although the Sons are there mentioned with Noah in the Blessing yet it may best be understood with a Subordination or a Benediction in Succession the Blessing might truly be fulfilled if the Sons either under or after their Father enjoyed a Private Dominion it is not probable that the private Dominion which God gave to Adam and by his Donation Assignation or Cession to his Children was abrogated and a Community of all things instituted between Noah and his Sons at the time of the Flood Noah was left the sole Heir of the World why should it be thought that God would dis-inherit him of his Birth-right and make him of all the men in the World the only Tenant in Common with his Children If the Blessing given to Adam Gen. 1.28 be compared to that given to Noah and his Sons Gen. 9.2 there will be found a considerable Difference between those two Texts In the Benediction of Adam we find expressed a subduing of the Earth and a Dominion over the Creatures neither of which are expressed in the Blessing of Noah nor the Earth there once named it is only said The fear of you shall be upon the creatures and into your hands are they delivered then immediately it follows Every moving thing shall be meat for you as the green herb The first Blessing gave Adam Dominion over the Earth and all Creatures the latter allows Noah liberty to use the living Creatures for food here is no alteration or diminishing of his Title to a Propriety of all things but an Enlargement only of his Commons But whether with Grotius Community came in at the Creation or with Mr. Selden at the Flood they both agree it did not long continue Sed veri non est simile hujusmodi communionem diu obtinuisse is the confession of Mr. Selden It seems strange that Grotius should maintain that Community of all things should be by the Law of Nature of which God is the Author and yet such Community should not be able to continue Doth it not derogate from the Providence of God Almighty to ordain a Community which
could not continue Or doth it make the Act of our Fore-fathers in abrogating the natural Law of Community by introducing that of Propriety to be a sin of a high presumption The prime Duties of the Second Table are conversant about the Right of Propriety but if Propriety be brought in by a Humane Law as Grotius teacheth then the Moral Law depends upon the Will of man There could be no Law against Adultery or Theft if Women and all things were common Mr. Selden saith That the Law of Nature or of God nec vetuit nec jubebat sed permisit utrumque tam nempe rerum communionem quà m privatum Dominium And yet for Propriety which he terms primaeva rerum Dominia he teacheth That Adam received it from God à Numine acceperat And for Community he saith We meet with evident footsteps of the Community of things in that donation of God by which Noah and his three Sons are made Domini pro indiviso rerum omnium Thus he makes the private Dominion of Adam as well as the common Dominion of Noah and his Sons to be both by the Will of God Nor doth he shew how Noah or his Sons or their Posterity had any Authority to alter the Law of Community which was given them by God In distributing Territories Mr. Selden saith the consent as it were of Mankind passing their promise which should also bind their Posterity did intervene so that men departed from their common Right of Communion of those things which were so distributed to particular Lords or Masters This Distribution by Consent of Mankind we must take upon Credit for there is not the least proof offered for it out of Antiquity How the Consent of Mankind could bind Posterity when all things were common is a Point not so evident where Children take nothing by Gift or by Descent from their Parents but have an equal and common Interest with them there is no reason in such cases that the Acts of the Fathers should bind the Sons I find no cause why Mr. Selden should call Community a pristine Right since he makes it but to begin in Noah and to end in Noah's Children or Grand children at the most for he confesseth the Earth à Noachidis seculis aliquot post diluvium esse divisam That ancient Tradition which by Mr. Selden's acknowledgment hath obtained Reputation every where seems most reasonable in that he tells us That Noah himself as Lord of all was Author of the Distribution of the World and of private Dominion and that by the appointment of an Oracle from God he did confirm this Distribution by his last Will and Testament which at his Death he left in the hands of his eldest Son Sem and also warned all his Sons that none of them should invade any of their Brothers Dominions or injure one another because from thence Discord and Civil War would necessarily follow Many Conclusions in Grotius his Book de Jure Belli Pacis are built upon the foundation of these two Principles 1. The first is That Communis rerum usus naturalis fuit 2. The second is That Dominium quale nunc in usu est voluntas humana introduxit Upon these two Propositions of natural Community and voluntary Propriety depend divers dangerous and seditious Conclusions which are dispersed in several places In the fourth Chapter of the first Book the Title of which Chapter is Of the War of Subjects against Superiours Grotius handleth the Question Whether the Law of not resisting Superiours do bind us in most grievous and most certain danger And his Determination is That this Law of not resisting Superiours seems to depend upon the Will of those men who at first joyned themselves in a Civil Society from whom the Right of Government doth come to them that govern if those had been at first asked if their Will were to impose this burthen upon all that they should chuse rather to dye than in any case by Arms to repel the Force of Superiours I know not whether they would answer That it was their Will unless perhaps with this addition if Resistance cannot be made but with the great disturbance of the Common-wealth and destruction of many Innocents Here we have his Resolution that in great and certain danger men may resist their Governours if it may be without disturbance of the Common-wealth if you would know who should be Judge of the greatness and certainty of the Danger or how we may know it Grotius hath not one word of it so that for ought appears to the contrary his mind may be that every private man may be Judge of the Danger for other Judge he appoints none it had been a foul Fault in so desperate a piece of Service as the resisting of Superiours to have concealed the lawful Means by which we may judge of the Greatness or Certainty of publick Danger before we lift up our hands against Authority considering how prone most of us are to censure and mistake those things for great and certain Dangers which in truth many times are no dangers at all or at the most but very small ones and so flatter our selves that by resisting our Superiours we may do our Country laudable Service without Disturbance of the Common-wealth since the Effects of Sedition cannot be certainly judged of but by the Events only Grotius proceeds to answer an Objection against this Doctrine of resisting Superiours If saith he any man shall say that this rigid Doctrine of dying rather than resisting any Injuries of Superiours is no humane but a Divine Law It is to be noted that men at first not by any Precept of God but of their own Accord led by Experience of the Infirmities of separated Families against Violence did meet together in Civil Society from whence Civil Power took beginning which therefore St. Peter calls an humane Ordinance although elsewhere it be called a divine Ordinance because God approveth the wholesom Institutions of men God in approving a humane Law is to be thought to approve it as humane and in a humane manner And again in another place he goeth further and teacheth us That if the Question happen to be concerning the primitive Will of the People it will not be amiss for the People that now are and which are accounted the same with them that were long ago to express their meaning in this matter which is to be followed unless it certainly appear that the People long ago willed otherwise lib. 2. cap. 2. For fuller Explication of his Judgment about resisting Superiors he concludes thus The greater the thing is which is to be preserved the greater is the Equity which reacheth forth an Exception against the words of the Law yet I dare not saith Grotius without Difference condemn either simple men or a lesser part of the People who in the last Refuge of Necessity do so use this Equity as that in the mean time they do not forsake the Respect of the
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
somewhere to judge according to Law Law were vain It was soon therefore provided that Laws according to the dictate of Reason should be ratified by common consent when it afterward appeared that man was yet subject to unnatural destruction by the Tyranny of entrusted Magistrates a mischief almost as fatal as to be without all Magistracy How to provide a wholesome remedy therefore was not so easie to be invented it was not difficult to invent Laws for the limiting of Supream Governours but to invent how those Laws should be executed or by whom interpreted was almost impossible Nam quis custodiet ipsos Custodes to place a Superiour above a Supream was held unnatural yet what a lifeless thing would Law be without any Judge to determine and force it If it be agreed upon that limits should be prefixed to Princes and Judges to decree according to those limits yet another inconvenience will presently affront us for we cannot restrain Princes too far but we shall disable them from some good long it was ere the world could extricate it self out of all these extremities or find out an orderly means whereby to avoid the danger of unbounded Prerogative on this hand and of excessive liberty on the other and scarce has long experience yet fully satisfied the minds of all men in it In the Infancy of the world when man was not so artificial and obdurate in cruelty and oppression as now and Policy most rude most Nations did choose rather to subject themselves to the meer discretion of their Lords than rely upon any limits and so be ruled by Arbitrary Edicts than written Statutes But since Tyranny being more exquisite and Policy more perfect especially where learning and Religion flourish few Nations will endure the thraldome which usually accompanies unbounded and unconditionate Royalty Yet long it was ere the bounds and conditions of Supream Lords was so wisely determined or quietly conserved as now they are for at first when as Ephori Tribuni Curatores c. were erected to poise against the scale of Soveraignty much blood was shed about them and States were put into new broils by them and in some places the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the Peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittenagemot or when this real body of the People did throng together at it so it is not yet perhaps without some defects which by art policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Jurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Jurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Jurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the World to last he grants it continued above three thousand years which is an unreasonable time for the World to continue under-age for the first opposers he doth find of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so ancient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the People were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name only as Generalissimo of an Army and the best Politicians reckon the Spartan Commonwealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Jurisdiction to be incertain and the priviledges undetermined of that Court that
sworn to keep or not If a Soveraign Prince promise by Oath to his Subjects to keep the Laws he is bound to keep them not for that a Prince is bound to keep his Laws by himself or by his Predecessors but by the just Conventions and Promises which he hath made himself be it by Oath or without any Oath at all as should a private man be and for the same causes that a Private man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by deceit or fraud Circumvented or induced thereunto by Errour or Force or just Fear or by some great Hurt even for the same causes the Prince may be restored in that which toucheth the diminishing of his Majesty And so our Maxime resteth That the Prince is not subject to His Laws nor to the Laws of his Predecessors but well to his Own just and reasonable Conventions The Soveraign Prince may derogate from the Laws that he hath promised and sworn to keep if the Equity thereof cease and that of himself without Consent of his Subjects which his Subjects cannot do among Themselves if they be not by the Prince relieved The Foreign Princes well-advised will never take Oath to keep the Laws of their Predecessors for otherwise they are not Sovereigns Notwithstanding all Oaths the Prince may Derogate from the Laws or Frustrate or Disannul the same the Reason and Equity of them ceasing There is not any Bond for the Soveraign Prince to keep the Laws more than so far as Right and Justice requireth Neither is it to be found that the Antient Kings of the Hebrews took any Oaths no not they which were Anointed by Samuel Elias and others As for General and Particular which concern the Right of men in Private they have not used to be otherwise Changed but after General Assemblies of the Three Estates in France not for that it is necessary for the Kings to rest on their Advice or that he may not do the Contrary to that they demand if natural Reason and Justice do so require And in that the Greatness and Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled together in all Humility present their Requests and Supplications to their Prince without having any Power in any thing to Command or Determine or to give Voice but that that which it pleaseth the King to Like or Dislike to Command or Forbid is holden for Law Wherein they which have written of the Duty of Magistrates have deceived themselves in maintaining that the Power of the People is greater than the Prince a thing which oft-times causeth the true Subjects to revolt from the Obedience which they owe unto their Soveraign Prince and ministreth matter of great Troubles in Commonwealths of which their Opinion there is neither reason nor ground If the King should be Subject unto the Assemblies and Decrees of the People he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy of many Lords in Power equal where the Greater part commandeth the less and whereon the Laws are not to be published in the Name of him that Ruleth but in the Name and Authority of the Estates as in an Aristocratical Seignory where he that is Chief hath no Power but oweth Obeisance to the Seignory unto whom yet they every one of them feign themselves to owe their Faith and Obedience which are all things so absurd as hard it is to see which is furthest from Reason When Charles the eighth the French King then but Fourteen years old held a Parliament at Tours although the Power of the Parliament was never Before nor After so great as in those Times yet Relli then the Speaker for the People turning himself to the King thus beginneth Most High most Mighty and most Christian King our Natural and Onely Lord we poor humble and obedient Subjects c. which are come hither by your Command in all Humility Reverence and Subjection present our selves before you c. And have given me in charge from all this Noble Assembly to declare unto You the good Will and hearty desire they have with a most fervent Resolution to Serve Obey and Aid You in all your Affairs Commandments and Pleasures All this Speech is nothing else but a Declaration of their good Will towards the King and of their humble Obedience and Loyalty The like Speech was used in the Parliament at Orleans to Charles the 9th when he was scarce Eleven Years old Neither are the Parliaments in Spain otherwise holden but that even a greater Obedience of all the People is given to the King as is to be seen in the Acts of the Parliament at Toledo by King Philip 1552. when he yet was scarce Twenty Five Years old The Answers also of the King of Spain unto the Requests and humble Supplications of his People are given in these words We will or else We Decree or Ordain yea the Subsidies that the Subjects pay unto the King of Spain they call Service In the Parliaments of England which have commonly been holden every Third Year the Estates seem to have a great Liberty as the Northern People almost all breathe thereafter yet so it is that in effect they proceed not but by way of Supplications and Requests to the King As in the Parliament holden in Octob. 1566. when the Estates by a common Consent had resolved as they gave the Queen to understand not to Treat of any thing until She had first Appointed who should Succeed Her in the Crown She gave them no other Answer but That they were not to make her Grave before she were Dead All whose Resolutions were to no purpose without Her good liking neither did She in that any thing that they requested Albeit by the Sufferance of the King of England Controversies between the King and his People are sometimes determined by the High Court of Parliament yet all the Estates remain in full subjection to the King who is no way bound to follow their Advice neither to consent to their Requests The Estates of England are never otherwise Assembled no more than they are in France or Spain than by Parliament-Writs and express Commandments proceeding from the King which sheweth very well that the Estates have no Power of themselves to Determine Command or Decree any thing seeing they cannot so much as Assemble themselves neither being Assembled Depart without express Commandment from the King Yet this may seem one special thing that the Laws made by the King of England at the Request of the Estates cannot be again repealed but by calling a Parliament though we see Henry the eighth to have always used his Soveraign Power and with his only word to have disannulled the Decrees of Parliament We conclude the Majesty of a Prince to be nothing altered or diminished by the Calling together or Presence of the
Estates But to the contrary His Majesty thereby to be much the Greater and the more Honourable seeing all His People to acknowledge Him for their Soveraign We see the principal Point of Soveraign Majesty and Absolute Power to consist principally in giving Laws unto the Subjects without their Consent It behoveth that the Soveraign Prince should have the Laws in his Power to Change and Amend them according as Occasion shall require In a Monarchy every one in particular must swear to the Observation of the Laws and their Allegiance to One Soveraign Monarch who next unto God of whom he holds his Scepter and Power is bound to No Man For an Oath carrieth always with it Reverence unto whom and in whose Name it is made as still given to a Superiour and therefore the Vassal gives such Oath unto his Lord but receives None from Him again though they be mutually Bound the One of them to the Other Trajan swore to keep the Laws although he under the name of a Soveraign Prince was exempted but never any of the Emperours before him so sware Therefore Pliny the Younger in a Panegyrical Oration speaking of the Oath of Trajan gives out A great Novelty saith he and never before heard of He sweareth by whom we swear Of these two things the one must come to pass to wit the Prince that swears to keep the Laws of his Country must either not have the Soveraignty or else become a Perjur'd Man if he should Abrogate but one Law contrary to his Oath whereas it is not only Profitable that a Prince should sometimes Abrogate some such Laws but also Necessary for him to Alter or Correct them as the infinite Variety of Places Times and Persons shall require Or if we shall say the Prince to be still a Soveraign and yet nevertheless with such conditions that he can make no Law without the Advice of his Councel or People He must also be Dispensed with by his Subjects for the Oath which he hath made for the Observation of the Laws and the Subjects again which are obliged to the Laws have also need to be Dispensed withal by their Prince for fear they should be Perjur'd So shall it come to pass that the Majesty of the Commonweal enclining now to this side now to that side sometimes the Prince sometimes the People bearing sway shall have no Certainty to rest upon which are notable Absurdities and altogether incompatible with the Majesty of Absolute Soveraignty and contrary both to Law and Reason And yet we see many men that think they see more in the matter than others will maintain it to be most Necessary that Princes should be bound by Oath to keep the Laws and Customs of their Countreys In which doing they weaken and overthrow all the Rights of Soveraign Majesty which ought to be most Sacred and Holy and confound the Soveraignty of One Soveraign Monarch with an Aristocracy or Democracy Publication or Approbation of Laws in the Assembly of the Estates or Parliament is with us of great importance for the keeping of the Laws not that the Prince cannot of himself make a Law without the Consent of the Estates or People for even all his Declarations of War Treaties of Peace Valuations of the Coin Charters to enable Towns to send Burgesses to Parliament and his Writ of Summons to both Houses to Assemble are Laws though made without the Consent of the Estates or People but it is a Courteous part to do it by the good liking of the Senate What if a Prince by Law forbid to Kill or Steal is he not Bound to obey his own Laws I say that this Law is not His but the Law of God whereunto all Princes are more straitly bound than their Subjects God taketh a stricter account of Princes than others as Solomon a King hath said whereto agreeth Marcus Aurelius saying The Magistrates are Judges over private men Princes judge the Magistrates and God the Princes It is not only a Law of Nature but also oftentimes repeated among the Laws of God that we should be Obedient unto the Laws of such Princes as it hath pleased God to set to Rule and Reign over us if their Laws be not directly Repugnant unto the Laws of God whereunto all Princes are as well bound as their Subjects For as the Vassal oweth his Oath of Fidelity unto his Lord towards and against all men except his Soveraign Prince So the Subject oweth his Obedience to his Soveraign Prince towards and against all the Majesty of God excepted who is the Absolute Soveraign of All the Princes in the World To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined For Soveraignty being of it self Indivisible How can it at one and the same time be Divided betwixt One Prince the Nobility and the People in common The first Mark of Soveraign Majesty is to be of Power to give Laws and to Command over them unto the Subjects And who should those Subjects be that should yield their Obedience to the Law if they should have also Power to make the Laws Who should He be that could Give the Law being he himself constrain'd to Receive it of them unto whom he himself Gave it So that of necessity we must conclude that as no One in particular hath the Power to make the Law in such a State that there the State must needs be Popular Never any Commonwealth hath been made of an Aristocracy and Popular Estate much less of all the Three Estates of a Commonwealth Such States wherein the Right of Soveraignty is Divided are not rightly to be called Commonweals but rather the Corruption of Commonweals as Herodotus hath most briefly but truly written Commonweals which change their State the Soveraign Right and Power of them being Divided find no rest from Civil Wars If the Prince be an Absolute Soveraign as are the true Monarchs of France of Spain of England Scotland Turkey Muscovy Tartary Persia Aethiopia India and almost of all the Kingdoms of Africk and Asia where the Kings themselves have the Soveraignty without all doubt or question not Divided with their Subjects In this case it is not lawful for any One of the Subjects in particular or all of them in general to attempt any thing either by way of Fact or of Justice against the Honour Life or Dignity of the Soveraign albeit he had committed all the Wickedness Impiety and Cruelty that could be spoke For as to proceed against Him by way of Justice the Subject hath not such Jurisdiction over his Soveraign Prince of whom dependeth all Power to Command and who may not only Revoke all the Power of his Magistrates but even in whose Presence the Power of all Magistrates Corporations Estates and Communities cease Now if it be not lawful for the Subject by the way of Justice to proceed against a King How should it then be
parties are any way bound to perform their part and the Devil without doubt notwithstanding all his craft hath far the worst part of the bargain The bargain runs thus in Mr. Perkins The Witch as a slave binds himself by Vow to believe in the Devil and to give him either Body or Soul or both under his hand-writing or some part of his Blood The Devil promiseth to be ready at his vassals command to appear in the likeness of any Creature to consult and to aid him for the procuring of Pleasure Honour Wealth or Preferment to go for him to carry him any whither and to do any command Whereby we see the Devil is not to have benefit of his bargain till the death of the Witch in the mean time he is to appear always at the Witches command to go for him to carry him any whither and to do any command which argues the Devil to be the Witches slave and not the Witch the Devils Though it be true which Delrio affirmeth That the Devil is at liberty to perform or break his compact for that no man can compel him to keep his promise yet on the other side it is as possible for the Witch to frustrate the Devils Contract if he or she have so much grace as to repent the which there may be good cause to do if the Devil be found not to perform his promise Besides a Witch may many times require that to be done by the Devil which God permits not the Devil to do thus against his will the Devil may lose his credit and give occasion of repentance though he endeavour to the utmost of his power to bring to pass whatsoever he hath promised and so fail of the benefit of his bargain though he have the Hand-writing or some part of the blood of the Witch for his security or the solemnity before Witnesses as Delrio imagineth I am certain they will not say that Witchcraft is like the sin against the Holy Ghost unpardonable for Mr. Perkins confesseth the contrary and Delrio denies it not for he allows the Sacrament of the Eucharist to be administred to a condemned VVitch with this limitation that there may be about four hours space between the Communion and the Execution in which time it may be probably thought that the Sacramental Species as they call it may be consumed 3. Delrio in his second Book and fourth Question gives this Rule which he saith is common to all Contracts with the Devil That first they must deny the Faith and Christianism and Obedience to God and reject the Patronage of the Virgin Mary and revile her To the same purpose Mr. Perkins affirms that Witches renounce God and their Baptism But if this be common to all Contracts with the Devil it will follow that none can be VVitches but such as have first been Christians nay and Roman Catholicks if Delrio say true for who else can renounce the Patronage of the Virgin Mary And what shall be said then of all those Idolatrous Nations of Lapland Finland and of divers parts of Africa and many other Heathenish Nations which our Travellers report to be full of VVitches And indeed what need or benefit can the Devil gain by contracting with those Idolaters who are surer his own than any Covenant can make them 4. VVhereas it is said That Witchcraft is an Art working Wonders it must be understood that the Art must be the VVitches Art and not the Devils otherwise it is no Witchcraft but Devils-craft It is confessed on all hands That the Witch doth not work the wonder but the Devil only It is a rare Art for a Witch by her Art to be able to do nothing her self but to command another to practise the Art In other Arts Mr. Perkins confesseth That the Arts Master is able by himself to practise his Art and to do things belonging thereunto without the help of another but in this it is otherwise the power of effecting strange works doth not flow from the skill of the Witch but is derived wholly from Satan To the same purpose he saith That the means of working wonders are Charms used as a Watch-word to the Devil to cause him to work wonders so that the Devil is the Worker of the wonder and the Witch but the Counsellour Perswader or Commander of it and only accessory before the Fact and the Devil only principal Now the difficulty will be how the accessory can be duly and lawfully convicted and attainted according as our Statute requires unless the Devil who is the Principal be first convicted or at least outlawed which cannot be because the Devil can never be lawfully summoned according to the Rules of our Common Law For further proof that the Devil is the Principal in all such wonders I shall shew it by the testimony of King James in a Case of Murder which is the most capital Crime our Laws look upon First he tells us That the Devil teaches Witches how to make Pictures of Wax and Clay that by the roasting thereof the persons that they bear the Name of may be continually melted or dried away by continual sickness not that any of these means which he teacheth them except poisons which are composed of things natural can of themselves help any thing to these turns they are imployed in Secondly King James affirms That Witches can bewitch and take the life of men or women by roasting of the Pictures which is very possible to their Master to perform for although that instrument of Wax have no vertue in the turn doing yet may he not very well by that same measure that his conjured Slave melts that Wax at the fire may he not I say at these same times subtilly as a Spirit so weaken and scatter the spirits of life of the Patient as may make him on the one part for faintness to sweat out the humours of his body and on the other part for the not concurring of these spirits which cause his digestion so debilitate his stomach that his humour radical continually sweating out on the one part and no new good Suck being put in the place thereof for lack of digestion on the other he at last shall vanish away even as his Picture will do at the Fire Here we see the Picture of Wax roasted by the Witch hath no virtue in the Murdering but the Devil only It is necessary in the first place that it be duly proved that the party murdered be murdered by the Devil for it is a shame to bely the Devil and it is not possible to be proved if it be subtilly done as a Spirit 5. Our Definers of Witchcraft dispute much whether the Devil can work a Miracle they resolve he can do a Wonder but not a Miracle Mirum but not Miraculum A Miracle saith Mr. Perkins is that which is above or against Nature simply a Wonder is that which proceeds not from the ordinary course of Nature Delrio
of a Witch but only when the Devil pleaseth I do not find he proves that it is usual with Satan to endeavour any such Discovery neither do I see how it is practicable by the Devil for either he must do it by his own relation or report which as it cannot be proved he ever did so it is vain and to no purpose if he do it for Mr. Perkins hath discredited the testimony of the Devil as invalid and of no force for conviction or else the Devil must discover it by some second means and if there had been any such second means usual Mr. Perkins would have taught us what they are and not have left us only to his two more sufficient proofs which he confesseth are not infallible King James tells us that the Devils first discovering of himself for the gaining of a Witch is either upon their walking solitarily in the Fields or else lying pausing in their bed but always without the company of any other and at the making of Circles and Conjurations none of that craft will permit any others to behold when the Devil and his Subjects are thus close and secret in their actions it cannot be imagined that he will use all means to discover his most special and trustiest Subjects and though Mr. Perkins tells us that by nature of the Precontract the Devil is cock-sure of his instruments yet within a few lines he changeth his note and saith Though he have good hope of them yet he is not certain of their continuance because some by the mercy of God have been reclaimed and freed from his Covenant Besides he confesseth the Devil suffereth some to live long undisclosed that they may exercise the greater measure of his malice in the world It remains that if the two true proofs of Mr. Perkins which are the Witches Confession or sufficient witnesses fail we have not warrant as he saith in the word to put such an one to Death I conclude this point in the words of Mr. Perkins I advise all Jurors that as they be diligent in the zeal of Gods glory so they would be careful what they do and not to condemn any party suspected upon bare presumptions without sound and sufficient proofs that they be not guilty through their own rashness of shedding innocent blood Of the Hebrew Witch IN Deut. 18. The Witch is named with divers other sorts of such as used the like unlawful Arts as the Diviner the Observer of times an Inchanter a Charmer a Consulter with a Familiar Spirit a Wisard or a Necromancer The Text addeth All that do these things are an abomination to the Lord and because of these abominations the Lord thy God doth drive them the Nations out from before thee If we desire to know what those abominations of the Nations were we are told in general in the 14. Verse of the same Chapter These Nations hearkened unto observers of times and unto Diviners There is no other crime in this Chapter laid to the charge of all or any of these practisers of such unlawful Arts but of lying Prophecies and therefore the Text addeth The Lord thy God will raise up unto thee a Prophet from the midst of thee of thy Brethren like unto me unto him shall ye hearken and not to the Diviners Wisards Charmers c. Setting aside the case of Job wherein God gave a special and Extraordinary Commission I do not find in Scripture that the Devil or Witch or any other had power ordinarily permitted them either to kill or hurt any man or to meddle with the Goods of any for though for the trial of the hearts of men God doth permit the Devil Ordinarily to tempt them yet he hath no Commission to destroy the Lives or Goods of men it is little less than blasphemy to say any such thing of the admirable providence of God whereby he preserves all his Creatures It was crime sufficient for all those practisers of unlawful Arts to delude the People with false and lying Prophecies thereby to make them forget to depend upon God and to have their Souls turn after such as have Familiar Spirits and after Wisards to go a whoring after them as the Lord saith Levit. 20.6 This spiritual whoredom is flat Idolatry in the common phrase of the Old Testament and those that be enticers to it thereby endeavour to destroy the Souls of the People and are by many degrees more worthy of Death than those that only destroy the Bodies or Goods of men If there were a Law that every one should be put to Death or punished that should advisedly endeavour to perswade men that they are skilful in those forbidden Arts or in foretelling of things to come or that they have contracted with the Devil and can thereby murther or destroy mens Goods I should never deny such a Law to be most consonant and agreeing with the Law of Moses But because I may be thought by some a favourer of these forbidden Arts through want of understanding the Scripture about the quality of them I have made choice of a man who is no Friend to Witches and whose Learning in this point will not be denied In his own words I shall set down what either out of the Hebrew Names of those prohibited Arts or out of the exposition of the Jewish Doctors can be gathered for the understanding of them 1. A Diviner in Hebrew a Foreseer or Presager a Foreteller of things to come as doth a Prophet The Hebrews take a Diviner to be one that doth things whereby he may foretel things to come and say Such a thing shall be or not be or say It is good to do such a thing The means of Divining some doing it with Sand some with Stones some by lying down on the Ground some with Iron some with a Staff He that asked of a Diviner is chastised with stripes 2. An observer of times or Soothsayer an Observer of the Clouds a Planetary or an observer of the flying of Fowls an Augur As the Diviners were carried much by inward and Spiritual Motions so these by outward Observations in the Creatures The Hebrews say they were such as did set times for the doing of things saying Such a day is good and such a day is naught 3. An Observer of Fortunes one that curiously searcheth signs of good or evil luck which are Learned by Experience the Hebrew is to find out by Experience Whereupon the word here used is one that too curiously observeth and abuseth things that do fall out as lucky or unlucky The Hebrews describe it thus as if one should say Because the morsel of Bread is fallen out of my mouth or my Staff out of my hand I will not go to such a place because a Fox passed by on my right hand I will not go out of my House this day Our new Translation renders this word an Inchanter 4. A Witch a Sorcerer such as bewitch the Senses or minds of Men
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a House Nor doth Aristotle confine a Family to One House but esteems it to be made of those that daily converse together whereas before him Charondas called a Family Homosypioi those that feed together out of one common Pannier And Epimenides the Cretian terms a Family Homocapnoi those that sit by a Common Fire or Smoak But let Suarez understand what he please by Adam's Family if he will but confess as he needs must that Adam and the Patriarchs had Absolute power of Life and Death of Peace and War and the like within their Houses or Families he must give us leave at least to call them Kings of their Houses or Families and if they be so by the Law of Nature what Liberty will be left to their Children to dispose of Aristotle gives the Lie to Plato and those that say Political and Oeconomical Societies are all one and do not differ Specie but only Multitudine Paucitate as if there were no difference betwixt a Great House and a Little City All the Argument I find he brings against them is this The Community of Man and Wife differs from the Community of Master and Servant because they have several Ends. The Intention of Nature by Conjunction of Male and Female is Generation but the Scope of Master and Servant is Preservation so that a Wife and a Servant are by Nature distinguished because Nature does not work like the Cutlers of Delphos for she makes but one thing for one Use If we allow this Argument to be sound nothing doth follow but only this That Conjugal and Despotical Communities do differ But it is no consequence That therefore Oeconomical and Political Societies do the like for though it prove a Family to consist of two distinct Communities yet it follows not that a Family and a Commonwealth are distinct because as well in the Commonweal as in the Families both these Communities are found And as this Argument comes not home to our Point so it is not able to prove that Title which it shews for for if it should be granted which yet is false that Generation and Preservation differ about the Individuum yet they agree in the General and serve both for the Conservation of Mankind Even as several Servants differ in the particular Ends or Offices as one to Brew and another to Bake yet they agree in the general Preservation of the Family Besides Aristotle confesses that amongst the Barbarians as he calls all them that are not Grecians a Wife and a Servant are the same because by Nature no Barbarian is fit to Govern It is fit the Grecians should rule over the Barbarians for by Nature a Servant and a Barbarian is all one their Family consists only of an Ox for a Man-Servant and a Wife for a Maid so they are fit only to rule their Wives and their Beasts Lastly Aristotle if it had pleased him might have remembred That Nature doth not always make one Thing but for one Use he knows the Tongue serves both to Speak and to Taste 4. But to leave Aristotle and return to Suarez he saith that Adam had Fatherly Power over his Sons whilst they were not made Free Here I could wish that the Jesuite had taught us how and when Sons become Free I know no means by the Law of Nature It is the Favour I think of the Parents only who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care are then content to remit some part of their Fatherly authority therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of suferiour Parents but many Nations have no such Custome but on the contrary have strict Laws for the Obedience of Children the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause But it was so decreed lest the Father should in his Anger suddenly or secretly kill his Son Also by the Laws of the Persians and of the People of the Upper Asia and of the Gaules and by the Laws of the West-Indies the Parents have power of Life and Death over their Children The Romans even in their most Popular Estate had this Law in force and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables to the enabling of Parents to sell their Children two or three times over By the help of the Fatherly Power Rome long flourished and oftentimes was freed from great Dangers The Fathers have drawn out of the very Assemblies their own Sons when being Tribunes they have published Laws tending to Sedition Memorable is the Example of Cassius who threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the behoof of the People and afterwards by his own private Judgment put him to Death by throwing him down from the Tarpeian Rock the Magistrates and People standing thereat amazed and not daring to resist his Fatherly Authority although they would with all their Hearts have had that Law for the Division of Land by which it appears it was lawful for the Father to dispose of the Life of his Child contrary to the Will of the Magistrates or People The Romans also had a Law that what the Children got was not their own but their Fathers although Solon made a Law which acquitted the Son from Nourishing of his Father if his Father had taught him no Trade whereby to get his Living Suarez proceeds and tells us That in Process of Time Adam had compleat Oeconomical Power I know not what this compleat Oeconomical Power is nor how or what it doth really and essentially differ from Political If Adam did or might exercise the same Jurisdiction which a King doth now in a Commonwealth then the Kinds of Power are not distinct and though they may receive an Accidental Difference by the Amplitude or Extent of the Bounds of the One beyond the Other yet since the like Difference is also found in Political Estates It follows that Oeconomical and Political Power differ no otherwise than a Little Commonweal differs from a Great One. Next saith Suarez Community did not begin at the Creation of Adam It is true because he had no body to Communicate with yet Community did presently follow his Creation and that by his Will alone for it was in his power only who was Lord of All to appoint what his Sons should have in Proper and what in Common so that Propriety and Community of Goods did follow Originally from him and it is the Duty of a Father to provide as well for the Common Good of his Children as the Particular Lastly Suarez Concludes That by the Law of Nature alone it is not due unto any Progenitor to be also King
know that such Mischiefs are unavoidable and of necessity do follow all Democratical Regiments and the Reason is given because the Nature of all People is to desire Liberty without Restraint which cannot be but where the Wicked bear Rule and if the People should be so indiscreet as to advance Vertuous Men they lose their Power for that Good Men would favour none but the Good which are always the fewer in Number and the Wicked and Vicious which is still the Greatest Part of the People should be excluded from all Preferment and in the end by little and little Wise Men should seize upon the State and take it from the People I know not how to give a better Character of the People than can be gathered from such Authors as lived amongst or near the Popular States Thucydides Xenophon Livy Tacitus Cicero and Salust have set them out in their Colours I will borrow some of their Sentences There is nothing more uncertain than the People their Opinions are as variable and sudden as Tempests there is neither Truth nor Judgment in them they are not led by Wisdom to judg of any thing but by Violence and Rashness nor put they any Difference between things True and False After the manner of Cattel they follow the Herd that goes before they have a Custom always to favour the Worst and Weakest they are most prone to Suspitions and use to Condemn men for Guilty upon any false Suggestion they are apt to believe all News especially if it be sorrowful and like Fame they make it more in the Believing when there is no Author they fear those Evils which themselves have feigned they are most desirous of New Stirrs and Changes and are Enemies to Quiet and Rest Whatsoever is Giddy or Head-strong they account Manlike and Couragious but whatsoever is Modest or Provident seems sluggish each Man hath a Care of his Particular and thinks basely of the Common Good they look upon Approaching Mischiefs as they do upon Thunder only every Man wisheth it may not touch his own Person it is the Nature of them they must Serve basely or Domineer proudly for they know no Mean Thus do they paint to the Life this Beast with many Heads Let me give you the Cypher of their Form of Government As it is begot by Sedition so it is nourished by Arms It can never stand without Wars either with an Enemy abroad or with Friends at Home The only Means to preserve it is to have some powerful Enemies near who may serve instead of a King to Govern it that so though they have not a King amongst them yet they may have as good as a King Over them For the Common Danger of an Enemy keeps them in better Unity than the Laws they make themselves 15. Many have exercised their Wits in parallelling the Inconveniencies of Regal and Popular Government but if we will trust Experience before Speculations Philosophical it cannot be denied but this one Mischief of Sedition which necessarily waits upon all Popularity weighs down all the Inconveniences that can be found in Monarchy tho they were never so many It is said Skin for Skin yea all that a Man hath will he give for his Life and a Man will give his Riches for the ransome of his Life The way then to examine what proportion the mischiefs of Sedition and Tyranny have one to another is to enquire in what kind of Government most Subjects have lost their Lives Let Rome which is magnified for her Popularity and villified for the Tyrannical Monsters the Emperours furnish us with Examples Consider whether the Cruelty of all the Tyrannical Emperours that ever ruled in this City did ever spill a quarter of the Blood that was poured out in the last hundred Years of her glorious Commonwealth The Murthers by Tyberius Domitian and Commodus put all together cannot match that Civil Tragedy which was acted in that one Sedition between Marius and Sylla nay even by Sylla's part alone not to mention the Acts of Marius were fourscore and ten Senators put to Death fifteen Consuls two thousand and six hundred Gentlemen and a hundred thousand others This was the Heighth of the Roman Liberty Any Man might be killed that would A Favour not fit to be granted under a Royal Government The Miseries of those Licentious Times are briefly touched by Plutarch in these Words Sylla saith he fell to shedding of Blood and filled all Rome with infinite and unspeakable Murthers This was not only done in Rome but in all the Cities of Italy throughout there was no Temple of any God whatsoever no Altar in any Bodies House no Liberty of Hospital no Fathers House which was not embrued with Blood and horrible Murthers the Husbands were slain in the Wives Arms and the Children in the Mothers Laps and yet they that were slain for private Malice were nothing in respect of those that were Murthered only for their Goods He openly sold their Goods by the Cryer sitting so proudly in his Chair of State that it grieved the People more to see their Goods packt up by them to whom he gave or disposed them than to see them taken away Sometimes he would give a whole Country or the whole Revenues of certain Cities unto Women for their Beauties or to pleasant Jesters Minstrels or wicked Slaves made free And to some he would give other Mens Wives by force and make them be Married against their Wills Now let Tacitus and Suetonius be searched and see if all their cruel Emperours can match this Popular Villany in such an Universal Slaughter of Citizens or Civil Butchery God only was able to match him and over-matched him by fitting him with a most remarkable Death just answerable to his Life for as he had been the Death of many thousands of his Country-men so as many thousands of his own Kindred in the Flesh were the Death of him for he died of an Impostume which corrupted his Flesh in such sort that it turned all to Lice he had many about him to shift him continually Night and Day yet the Lice they wiped from him were nothing to them that multiplied upon him there was neither Apparel Linnen Baths Washings nor Meat it self but was presently filled with Swarms of this vile Vermine I cite not this to extenuate the Bloody Acts of any Tyrannical Princes nor will I plead in Defence of their Cruelties only in the Comparative I maintain the Mischiefs to a State to be less Universal under a Tyrant King for the Cruelty of such Tyrants extends ordinarily no further than to some particular Men that offend him and not to the whole Kingdom It is truly said by his late Majesty King James A King can never be so notoriously Vicious but he will generally favour Justice and maintain some Order except in the Particulars wherein his inordinate Lust carries him away Even cruel Domitian Dionysius the Tyrant and many others are commended by Historians for great Observers of
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
Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these Words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems St. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carried a Sword Wilt thou not be afraid of the Power that is the Ruler that carrieth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And St. Paul concludes for this Cause pay you Tribute also for they are God's Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to God's Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this Place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lord's sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoyneth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to manifest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a speaking Law he cannot mean that Kings themselves are an humane Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are humane Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Grammatical Construction Him the Relative must be referred to the next Antecedent which is King besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's Meaning is in short Obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor St. Paul intended other Form of Government than only Monarchical much less any Subjection of Princes to humane Laws That familiar Distinction of the School-men whereby they subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the positive Laws of any Nation since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King which no Man says is a Law to the King 4. There want not those who Believe that the first Invention of Laws was to bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens assoon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and tho many of their Laws were very severe and bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his Pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves so the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the People 5. The reason why Laws have been also made by Kings was this when Kings were either busied with Wars or distracted with publick Cares so that every private Man could not have Access to their Persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered to him in the Tables of his Laws that so there might be no need to resort unto the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The People have the Law as a Familiar Admonisher and Interpreter of the King's Pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-weal doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so
much as the Natural Law of a Father which binds them to ratifie the Acts of their ForeFathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-Bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these Words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall Judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience joyn'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for Truth that Kings do swear to observe all the Laws of their Kingdom yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no further bound than the Equity and Justice of the Contract ties him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error or Force or Fear induced him thereunto Or if it be hurtful or grievous in the performance Since the Laws in many Cases give the King a Prerogative above common Persons I see no Reason why he should be denied the Priviledg which the meanest of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Whether it be a Sin for a Subject to disobey the King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Humane Laws but even in Divine a thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of the Sabbath is a Divine Law yet if a Master command his Servant not to go to Church upon a Sabbath-Day the best Divines teach us That the Servant must obey this Command though it may be Sinful and Unlawfull in the Master because the Servant hath no Authority or Liberty to examine and judge whether his Master sin or no in so commanding For there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14.5 yet it is not fit to tie the Master to acquaint his Servant with his secret Counsels or present Necessity And in such Cases the Servant 's not going to Church becomes the Sin of the Master and not of the Servant The like may be said of the King 's commanding a Man to serve him in the Wars he may not examine whether the War be Just or Unjust but must Obey since he hath no Commission to Judge of the Titles of Kingdoms or Causes of War nor hath any Subject Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some are afraid of the Name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it The Court of Chancery it self is but a Branch of the King's Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Jus is Summa Injuria General Pardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or make them In all Aristocraties the Nobles are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power he is but an Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all things according to his Own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he
King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that he might have always at hand Able Men for his Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Process of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malicious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Process yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw 1. Cap. 5. did provide That the Chancellour and Justices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's answer was He thought it not reasonable that He should be constrained to send for his Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Outrages the Common Law cannot have duly her Course in such case the Counsel for the Party Also in the 13 th Year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpaena's other Writs grounded upon false Suggestions the King answered That he would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time our good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denial for the present by a Phrase peculiar for the King 's denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and his Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Freehold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regality or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded James Audley to
appear before Him and His Council and determin'd a Controversy between them touching Lands contain'd in the Covenants of her Joynture Rot. Claus de an 41. Ed. 3. Henry the Fifth in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence in the Isle of Thenet in Kent took order for Sequestring the Profits till the Right were tryed as well for avoiding the breach of the Peace as for prevention of waste and spoil Rot. Patin Anno 6. Hen. 5. Henry the Sixth commanded the Justices of the Bench to stay the Arraignment of one Verney of London till they had other commandment from Him and His Council because Verney being indebted to the King and others practised to be Indicted of Felony wherein he might have his Clergy and make his Purgation of intent to defraud his Creditors 34. Hen. 6 Rot. 37. in Banco Regis Edward the Fourth and His Council in the Star-Chamber heard the Cause of the Master and Poor Brethren of S. Leonards in York complaining that Sir Huge Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plough-Land within the Counties of York Westmerland Cumberland and Lancashire Rot. Paten de Anno 8 Ed. 4. Part 3. Memb. 14. Henry the Seventh and His Council in the Star-Chamber decreed That Margery and Florence Becket should sue no further in their Cause against Alice Radley Widow for Lands in Wolwich and Plumstead in Kent for as much as the Matter had been heard first before the Council of King Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Council of the said King 1 Hen. 7. What is hitherto affirmed of the Dependency and Subjection of the Common Law to the Soveraign Prince the same may be said as well of all Statute Laws for the King is the sole immediate Author Corrector and Moderator of them also so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power which Kings have over their People by right of Father-hood but rather are an Argument to strengthen the truth of it for Evidence whereof we may in some points consider the nature of Parliaments because in them only all Statutes are made 12. Though the Name of Parliament as Mr. Cambden saith be of no great Antiquity but brought in out of France yet our Ancestors the English Saxons had a Meeting which they called The Assembly of the Wise termed in Latine Conventum Magnatum or Praesentia Regis Procerumque Prelaterumque collectorum The Meeting of the Nobility or the Presence of the King Prelates and Peers Assembled or in General Magnum Concilium or Commune Concilium and many of our Kings in elder times made use of such great Assemblies for to consult of important Affairs of State all which Meetings in a General Sense may be termed Parliaments Great are the Advantages which both the King and People may receive by a well-ordered Parliament there is nothing more expresseth the Majesty and Supream Power of a King than such an Assembly wherein all his People acknowledg him for Soveraign Lord and make all their Addresses to him by humble Petition and Supplication and by their Consent and Approbation do strengthen all the Laws which the King at their Request and by their Advice and Ministry shall ordain Thus they facilitate the Government of the King by making the Laws unquestionable either to the Subordinate Magistrates or refractory Multitude The benefit which accrews to the Subject by Parliaments is That by their Prayers and Petitions Kings are drawn many times to redress their just Grievances and are overcome by their Importunity to grant many things which otherwise they would not yield unto for the Voice of a Multitude is easilier heard Many Vexations of the People are without the knowledg of the King who in Parliament seeth and heareth his People himself whereas at other times he commonly useth the Eyes and Ears of other Men. Against the Antiquity of Parliaments we need not dispute since the more ancient they be the more they make for the Honour of Monarchy yet there be certain Circumstances touching the Forms of Parliaments which are fit to be considered First We are to remember that until about the time of the Conquest there could be no Parliaments assembled of the General States of the whole Kingdom of England because till those days we cannot learn it was entirely united into one Kingdom but it was either divided into several Kingdoms or governed by several Laws When Julius Caesar landed he found 4 Kings in Kent and the British Names of Dammonii Durotriges Belgae Attrebatii Trinobantes Iceni Silures and the rest are plentiful Testimonies of the several Kingdoms of Britains when the Romans left us The Saxons divided us into 7 Kingdoms when these Saxons were united all into a Monarchy they had always the Danes their Companions or their Masters in the Empire till Edward the Confessors Days since whose time the Kingdom of England hath continued United as now it doth But for a thousand Years before we cannot find it was entirely settled during the time of any one King's Reign As under the Mercian Law The West Saxons were confined to the Saxon Laws Essex Norfolk Suffolk and some other Places were vexed with Danish Laws The Northumbrians also had their Laws apart And until Edward the Confessor's Reign who was next but one before the Conqueror the Laws of the Kingdom were so several and uncertain that he was forced to cull a few of the most indifferent and best of them which were from him called St. Edward's Laws Yet some say that Edgar made those Laws and that the Confessor did but restore and mend them Alfred also gathered out of Mulmutius Laws such as he translated into the Saxon Tongue Thus during the time of the Saxons the Laws were so variable that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom 13 A second Point considerable is Whether in such Parliaments as was in the Saxon's times the Nobility and Clergy only were of those Assemblies or whether the Commons were also called Some are of Opinion that though none of the Saxon Laws do mention the Commons yet it may be gathered by the word Wisemen the Commons are intended to be of those Assemblies and they bring as they conceive probable arguments to prove it from the Antiquity of some Burroughs that do yet send Burgesses and from the Proscription of those in Ancient Demesne not to send Burgesses to Parliament If it be true that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns yet it may be doubted whether other Kingdoms had the same usage but sure it is that during the Heptarchy the People could not Elect any Knights of the Shire because England was
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by
3d Rich. 2. the three Henries 4 5 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earls and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the King's Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edw. 1. made at his first Parliament General by his Council and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the King's Council forasmuch as all the King's Council as well Justices as others did agree that they should be put in writing and observed The Statute of Acton Bunnel saith The King for Himself and by His Council hath Ordaind and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and his Council do not intend by reason of this Statute to diminish the King's Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the King's Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and ordained by the King himself and all his Council The Statute made at York 9. Edw. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his People by the assent of his Prelates Earls Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earls Barons and other Great Men assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King's Privy-Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the King's Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the King's Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the King's Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28 Hen. 6. The Commons made Suit That William de la Poole D. of Suffolk should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Judges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was reassembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of
to the King are all but private men if they derive their Power from him they are Magistrates under him and out of his Presence for when he is in place they are but so many private men J. M. asks Who swears to a King unless the King on the other side be sworn to keep Gods Laws and the Laws of the Countrey We find that the Rulers of Israel took an Oath at the Coronation of Jehoash but we find no Oath taken by that King no not so much as to Gods Laws much less to the Laws of the Countrey XII A Tyrant is he who regarding neither Law nor the Common Good reigns only for himself and his Faction p. 19. In his Defence he expresseth himself thus He is a Tyrant who looks after only his own and not his Peoples profit Eth. l. 10. p. 189. 1. If it be Tyranny not to regard the Law then all Courts of Equity and Pardons for any Offences must be taken away there are far more Suits for relief against the Laws than there be for the observation of the Laws there can be no such Tyranny in the World as the Law if there were no Equity to abate the rigour of it Summum Jus is Summa Injuria if the Penalties and Forfeitures of all Laws should still be exacted by all Kings it would be found that the greatest Tyranny would be for a King to govern according to Law the Fines Penalties and Forfeitures of all Laws are due to the Supreme Power only and were they duly paid they would far exceed the Taxes in all places It is the chief happiness of a Kingdom and their chief Liberty not to be governed by the Laws Only 2. Not to regard the Common Good but to reign only for himself is the supposition of an impossibility in the judgment of Aristotle who teacheth us that the despotical Power cannot be preserved except the Servant or he in subjection be also preserved The truth of this strongly proves That it is in Nature impossible to have a Form of Government that can be for the destruction of a People as Tyranny is supposed if we will allow People to be governed we must grant they must in the first place be preserved or else they cannot be governed Kings have been and may be vitious men and the Government of one not so good as the Government of another yet it doth not follow that the Form of Government is or can be in its own nature ill because the Governour is so it is Anarchy or want of Government that can totally destroy a Nation We cannot find any such Government as Tyranny mentioned or named in Scripture or any word in the Hebrew Tongue to express it After such time as the Cities of Greece practised to shake off Monarchy then and not till then which was after Homer's time the name of Tyrant was taken up for a word of Disgrace for such men as by craft or Force wrested the Power of a City from a Multitude to one man only and not for the exercising but for the ill-obtaining of the Government but now every man that is but thought to govern ill or to be an ill man is presently termed a Tyrant and so judged by his Subjects Few remember the Prohibition Exod. 22.28 Thou shalt not revile the Gods nor curse the Ruler of thy People and fewer understand the reason of it Though we may not one judge another yet we may speak evil or revile one another in that which hath been lawfully judged and upon a Tryal wherein they have been heard and condemned this is not to judge but only to relate the judgment of the Ruler To speak evil or to revile a Supreme Judge cannot be without judging him who hath no Superiour on Earth to judge him and in that regard must always be presumed innocent though never so ill if he cannot lawfully be heard J.M. that will have it Tyranny in a King not to regard the Laws doth himself give as little Regard to them as any man where he reckons that Contesting for Priviledges Customs Forms and that old entanglement of Iniquity their gibrish Laws are the Badges of ancient Slavery Tenure p. 3. a Disputing Presidents Forms and Circumstances page 5. J.M. is also of opinion That If at any time our Fore-fathers out of baseness have lost any thing of their Right that ought not hurt us they might if they would promise Slavery for themselves for us certainly they could not who have always the same Right to free our selves that they had to give themselves to any man in Slavery This Doctrine well practised layeth all open to constant Anarchy Lastly If any desire to know what the liberty of the People is which J. M. pleads for he resolves us saying That he that takes away from the People the Right of Choosing what Form of Government they please takes away truly that in which all Liberty doth almost consist It is well said by J. M. that all liberty doth almost consist in Choosing their Form of Government for there is another liberty exercised by the People which he mentions not which is the liberty of the Peoples Choosing their Religion every man may be of any Religion or of no Religion Greece and Rome have been as famous for Polytheism or multitudes of gods as of Governours and imagining Aristocratie and Democratie in Heaven as on Earth OBSERVATIONS UPON H. Grotius DE JVRE BELLI PACIS IN most Questions of Weight and Difficulty concerning the Right of War or Peace or Supreme Power Grotius hath Recourse to the Law of Nature or of Nations or to the Primitive Will of those men who first joyned in Society It is necessary therefore a little to lay open the Variety or Contrariety in the Civil and Canon Law and in Grotius himself about the Law of Nature and Nations not with a Purpose to raise any Contention about Words or Phrases but with a Desire to reconcile or expound the Sense of different Terms Civilians Canonists Politicians and Divines are not a little perplexed in distinguishing between the Law of Nature and the Law of Nations about Jus Naturae and Jus Gentium there is much Dispute by such as handle the Original of Government and of Property and Community The Civil Law in one Text allows a threefold Division of Law into Jus Naturae Jus Gentium and Jus Civile But in another Text of the same Law we find only a twofold Division into Jus Civile and Jus Gentium This latter Division the Law takes from Gaius the former from Vlpian who will have Jus Naturale to be that which Nature hath taught all Creatures quod Natura omnia animalia docuit but for this he is confuted by Grotius Salmasius and others who restrain the Law of Nature only to men using Reason which makes it all one with the Law of Nations to which the Canon Law consents and saith That Jus Naturale est commune omnium Nationum That