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 judge under them do not thereby 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 Iudges that they give Iudgment 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 duely executed and when not as also to compell 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 alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton'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 Iustices 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 Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… 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 â—…ake it for ought appears yet we may admit â—…hat 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 Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… 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 Lordâ—… 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 â—… 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 eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
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 Iustice 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 Priviledges 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 Common-wealths 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 Common-wealth neither Realm nor Monarchy but a meer Aristocracie 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 Common-wealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Common-weal Such States wherein the rights of Soveraignty are divided are not rightly to be called Common-weals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Common-weals which change their state the Sovereign right and 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 and 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 somewhere to judge according to Law Law was 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 wholsome 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 Iudge to determine and force it If it be agreed upon that limits should be prefixed to Princes and Iudges 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 to excessive liberty on the other and scarce has long experience yet fully satisfyed 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 some places
at that Election sending back unto Us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness Our Self at Westminster By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom or of the Supream Court of Iudicature or to have any part of the Legislative Power or to Consult de arduis regni negotiis of the difficult Businesses of the Kingdom The Writ only sayes the King would have Conference and Treat with the Prelates Great men and Peers but not a word of Treating or Conference with the Commons The House of Commons which doth not minister an Oath nor fine nor imprison any but their own Members and that but of late in some Cases cannot properly be said to be a Court at all much less to be a part of the Supream Court or highest Judicature of the Kingdom The constant Custom even to this day for the Members of the House of Commons to stand bare with their Hats in their Hands in the Presence of the Lords while the Lords sit covered at all Conferences is a visible argument that the Lords and Commons are not fellow Commissioners or fellow Counsellors of the Kingdom The Duty of Knights Citizens and Burgesses mentioned in the Writ is only ad Faciendum Consentiendum to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom there is not so much mentioned in the Writ as a Power in the Commons to dissent When a man is bound to appear in a Court of Justice the words are ad Faciendum recipiendum quod ei per curiam injungetur which shews that this word Faciendum is used as a Term in Law to signifie to give Obedience For this we meet with a Precedent even as ancient as the Parliament-Writ it self and it is concerning Proceedings in Parliament 33. Ed. 1. Dominus Rex mandavit vicecom ' quod c. summon ' Nicolaum de Segrave ex parte Domini regis firmiter ei injungeret quod esset coram Domino Rege in proximo Parl. c. ad audiendum voluntatem ipsius Domini Regis c. Et ad Faciendum recipiendum ulterius quod curia Domini Regis consideraret in Praemissis Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before the Lord our King in the next Parliament to hear the Will of the Lord our King himself and to Perform and receive what the Kings Court shall further consider of the Premises Sir Ed. Coke to prove the Clergy hath no Voice in Parliament saith that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm If this argument of his be good it will deny also Voices to the Commons in Parliament for in their Writ are the self-same words viz. to consent to such things as were ordained by the Common Councel of the Kingdom Sir Edw. Coke concludes that the Procuratores Cleri have many times appeared in Parliament as Spiritual Assistants to Consider Consult and to Consent but never had voice there how they could consult and Consent without Voices he doth not shew Though the Clergy as he saith oft appeared in Parliament yet was it only ad consentiendum as I take it and not ad faciendum for the Word Faciendum is omitted in their Writ the cause as I conceive is the Clergy though they were to assent yet by reason of Clerical Exemptions they were not required to Perform all the Ordinances or Acts of Parliament But some may think though the Writ doth not express a Calling of the Knights Citizens and Burgesses to be part of the Common Councel of the Kingdom yet it supposeth it a thing granted and not to be questioned but that they are a part of the Common Councel Indeed if their Writ had not mentioned the Calling of Prelates Great men and Peers to Councel there might have been a little better colour for such a Supposition but the Truth is such a Supposition doth make the Writ it self vain and idle for it is a senseless thing to bid men assent to that which they have already ordained since ordaining is an Assenting and more than an Assenting For clearing the meaning and sense of the Writ and Satisfaction of such as think it impossible but that the Commons of England have alwayes been a part of the Common Councel of the Kingdom I shall insist upon these Points 1. That anciently the Barons of England were the Common Councel of the Kingdom 2. That until the time of Hen. 1. the Commons were not called to Parliament 3. Though the Commons were called by Hen. 1. yet they were not constantly called nor yet regularly elected by Writ until Hen. 3. time For the first point M. Cambden in his Britania doth teach us that in the time of the English Saxons and in the ensuing Age a Parliament was called Communâ—… concilium which was saith he Praesentia Regis Praelatorum Procerumque collectorum the Presence of the King Prelates and Peers assembled No mention of the Commons the Prelates and Peers were all Barons The Author of the Chronicle of the Church of Lichfield cited by M. Selden saith Postquam Rex Edvardus c. Concilio Baronum Angliae c. After King Edward was King by the Councel of the Barons of England he revived a Law which had layen asleep threescore and seven years and this Law was called the Law of St. Edward the King In the same Chronicle it is said that Will. the Conquerour anno regni sui quarto apud Londin ' haâ—… Concilium Baronum Suorum a Councel of his Barons And of this Parliament it is that his Son Hen. 1. speaks saying I restore you the Laws of King Edward the Confessor with those amendments wherewith my Father amended them by the Councel of his Barons In the fifth year as M. Selden thinks of the Conquerour was a Parliament or Principum conventus aâ—… Assembly of Earls and Barons at Pinenden Heath iâ—… Kent in the Cause between Lanfranke the Arch-bishop of Canterbury and Odo Earl of Kent The King gave Commission to Godfrid then Bishop of Constanâ—… in Normandy to represent His own Person for Hearing the Controversie as saith M. Lambard and caused Egelrick the Bishop of Chichester an aged man singularly commended for Skill in the Laws and Customes of the Realm to be brought thither in a Wagon for his Assistance in Councel Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence three whole dayes spent in Debate in the End Lanfranke and the Bishop of Rochester were restored to the Possession oâ—… Detling and other Lands which Odo hath withholden 21. Ed. 3. fol. 60. There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and
Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
Government in Israel And what the Old Testament teacheth us we have confirmed in the New If Saint Paul had onely said Let every Soul be subject to the higher Powers and said no more then men might have disputed whether Saint Paul by higher Powers had not meant as well other Governours as Kings or other Forms of Government as Monarchy but the good luck is Saint Paul hath been his own Interpreter or Comment for after the general Doctrine of Obedience to be given by all men to the higher Powers he proceeds next to charge it home and lay it to the Conscience under pain of Damnation and applies it to each particular mans Conscience saying Wilt thou not be afraid of the Power which Power he expounds in the singular number restraining it to one Person saying He is the Minister of God to thee it is not They are the Ministers to thee and then again He beareth not the Sword in vain and then a third time in the same verse lest thou should'st forget it he saith for He is the Minister of God a Revenger to Wrath c. upon thee if Saint Paul had said They are the Ministers of God or They bear not the Sword in vain it might be doubted whether they were meant of Kings onely or of other Governours also but this Scruple is taken away by the Apostle himself And as St. Paul hath expounded what he means by Higher Powers so St. Peter also doth the like for the self-same Word that St. Paul useth for Higher in Saint Peter is translated Supreme so that though in our English Bibles the words differ yet in the Original they are both the same so that St. Paul might have been Englished Let every Soul be subject to the Supreme Power or St. Peter might have been translated whether to the King as to the higher yet there is this difference that whereas St. Paul useth the word in the Plural number St. Peter hath it in the Singular and with application to the King It will be said Though St. Peter make the King Supreme yet he tells us the King is a humane Ordinance or a Creature of the People's But it is answered Kings may be called an humane Ordinance for being made of one of the People and not by the People and so are humane in Regard of their material Cause not of their efficient If St. Peter had meant that Kings had been made by the People he must also have meant that Governours had been made by the People for he calls the Governours as well an Ordinance of Man as the King for his woods are Submit your selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or whether it be to Governours but Saint Peter sheweth that Governours are not made by the People for he saith they that are sent by Him not by them for the punishment of Evil doers so that the Governours are sent by the King and not by the People some would have sent by him to be sent by God but the Relative must be referr'd to the next Antecedent which is the King and not God Besides if Governours be sent by God and Kings by the People then Governours would be Supreme which is contrary to Saint Peter's Doctrine and it will follow that the People have not the power of choosing Representers to Govern if Governours must be sent of God The safest sense of Saint Peter's words is Submit your selves to all Humane Laws whether made by the King or by his Subordinate Governours So the King may be called a Humane Ordinance as being all one with a Speaking Law the word in the Original is Be subject to every humane Creation it is more proper to call a Law made by a King a creation of an Ordinance than the Peoples choosing or declaring of a King a Creation of him But take the words in what sense soever you will it is most evident that Saint Peter in this place takes no notice of any Government or Governours but of a King and Governours sent by him but not by the People And â—…t is to be noted That St. Peter and St. Paul â—…he two chief of the Apostles wrote their Epistles at such a time when the name of a Popular Government or of the People of Rome was at least so much in Shew and in Name that many do believe That notwithstanding the Emperours by strong hand usurped a Military Power yet the Government was for a long time in most things then in the Senate and People of Rome but for all this neither of the two Apostles take any notice of any such Popular Government No nor our Saviour himself who divides all between God and Caesar and allows nothing that we can find for the People OBSERVATIONS UPON Aristotles Politiques TOUCHING Forms of Government WHAT cannot be found in Scripture many do look for in Aristotle for if there be any other Form of Government besides Monarchy he is the man best able â—…o tell what it is and to let us know by what name â—…o call it since the Greek Tongue is most happy in â—…ompounding Names most significant to express the nature of most things The usual terms in this Age of Aristocraty and Democraty are taken up from him â—…o express Forms of Government most different from Monarchy We must therefore make inquiry into Aristotle touching these two Terms True it is Aristotle seems to make three sorts of Government which he diâ—…inguisheth by the Soveâ—…ignty of one man or of a â—…w or of many for the â—…ommon Good These he saith are rigâ—… or perfect Governments 〈◊〉 those that are for the privaâ—… Good of one or of a few 〈◊〉 of a Multitude are Transgressions The Government of a Monarchy for the Common Good he calls a Kingdom The Government of a few more than one an Aristocratie either beeâ—… the best men govern or because it is for the best of 〈◊〉 governed when a Multitude governs for the comâ—… Good it is called by the common name of all Governments a POLITIE It is possible that one 〈◊〉 few may excell in Vertue but it is difficult for many excell in all Vertue except in Warlike Affairs for 〈◊〉 is natural in a Multitude therefore in this sort of Government their principal Use is to war one for another and to possess the Arms or Ammunition The Transgâ—…sions of Government before spoken of are these â—…ranny is the Transgression of the Kingdom and Dâ—…mocratie is the Transgression of the Politie For Tyâ—… is a Monarchy for the Benefit of the Monarch the Oligâ—…chy for the Profit of the Rich the Democratie for the â—…nefit of the Poor None of these are for the Comâ—… Good Here Aristotle if he had stood to his own Prinâ—…ples should have said an Oligarchy should be for 〈◊〉 Benefit of a few and those the best and not for the 〈◊〉 of the rich and a Democratie for the Benefit of 〈◊〉 and not of the
End of Government frustrated If the Obligation upon the Commands of a Sovereign to execute a dangerous or dishonourable Office dependeth not on the words of our Submission but on the Intention which is to be understood by the End thereof No man by Mr. Hobs's Rules is bound but by the words of his Submission the Intention of the Command binds not if the words do not If the Intention should bind it is necessary the Sovereign must discover it and the People must dispute and judge it which how well it may consist with the Rights of Sovereignty Master Hobs may consider Whereas Master Hobs saith the Intention is to be understood by the End I take it he means the End by Effect for the End and the Intention are one and the same thing and if he mean the Effect the Obedience must go before and not depend on the understanding of the Effect which can never be if the Obedience do not precede it In fine he resolves refusal to obey may depend upon the judging of what frustrates the End of Sovereignty and what not of which he cannot mean any other Judge but the People XV. Mr. Hobs puts a case by way of Question A great many men together have already resisted the Sovereign Power unjustly or committed some Capital Crime for which every one of them expecteth death whether have they not the liberty then to joyn together and assist and defend one another Certainly they have for they but defend their Lives which the Guilty man may as well do as the Innocent There was indeed Injustice in the first breach of their Duty their bearing of Arms subsequent to it though it be to maintain what they have done is no new unjust Act and if it be only to defend their Persons it is not Unjust at all The only reason here alleged for the Bearing of Arms is this That there is no new unjust Act as if the beginning only of a Rebellion were an unjust Act and the continuance of it none at all No better Answer can be given to this case than what the Author himself hath delivered in the beginning of the same Paragraph in these words To resist the Sword of the Commonwealth in defence of another man Guilty or Innocent no man hath liberty because such Liberty takes away from the Sovereign the Means of protecting us and is therefore destructive of the very Essence of Government Thus he first answers the question and then afterwards makes it and gives it a contrary Answer other Passages I meet with to the like purpose He saith Page 66. A man cannot lay down the Right of Resisting them that Assault him by Force to take away his Life The same may be said of Wounds Chains and Imprisonment Page 69. A Covenant to defend my self from Force by Force is void Pag. 68. Right of Defending Life and Means of living can never be abandoned These last Doctrines are destructive to all Government whatsoever and even to the Leviathan it self hereby any Rogue or Villain may murder his Sovereign if the Sovereign but offer by force to whip or lay him in the Stocks since Whipping may be said to be wounding and Putting in the Stocks an Imprisonment so likewise every mans Goods being a Means of Living if a man cannot abandon them no Contract among men be it never so just can be observed thus we are at least in as miserable condition of War as Mr. Hobs at first by Nature found us XVI The Kingdom of God signifies saith Master Hobs page 216. a Kingdom constituted by the Votes of the People of Israel in a peculiar manner wherein they choose God for their King by Covenant made with him upon God's promising them Canaan If we look upon Master Hob's Text for this it will be found that the People did not Constitute by Votes and choose God for their King But by the Appointment first of God himself the Covenant was to be a God to them they did not contract with God that if he would give them Canaan they would be his Subjects and he should be their King It was not in their power to choose whether God should be their God yea or nay for it is confessed He reigned naturally over all by his Might If God Reigned naturally he had a Kingdom and Sovereign Power over his Subjects not acquired by their own Consent This Kingdom said to be constituted by the Votes of the People of Israel is but the Vote of Abraham only his single Voyce carried it he was the Representative of the People For at this Vote it is confessed that the Name of King is not given to God nor of Kingdom to Abraham yet the thing if we will believe Master Hobs is all one If a Contract be the mutual transferring of Right I would know what Right a People can have to transferr to God by Contract Had the People of Israel at Mount Sinai a Right not to obey God's Voice If they had not such a Right what had they to transferr The Covenant mentioned at Mount Sinai was but a Conditional Contract and God but a Conditional King and though the People promised to obey Gods word yet it was more than they were able to perform for they often disobeyed Gods Voice which being a breach of the Condition the Covenant was void and God not their King by Contract It is complained by God They have rejected me that I should reign over them but it is not said according to their Contract for I do not find that the Desiring of a King was a breach of their Contract of Covenant or disobedience to the Voice of God there is no such Law extant The People did not totally reject the Lord but in part onely out of timorousness when they saw Nahash King of the Children of Ammon come against them they distrusted that God would not suddenly provide for their Deliverance as if they had had alwayes a King in readiness to go up presently to fight for them This Despair in them who had found so many miraculous deliverances under Gods Government was that which offended the Lord so highly they did not desire an Alteration of Government and to cast off Gods Laws but hoped for a certainer and speedier deliverance from danger in time of War They did not petition that they might choose their King themselves that had been a greater sin and yet if they had it had not been a total rejection of Gods Reigning over them as long as they desired not to depart from the Worship of God their King and from the Obedience of his Laws I see not that the Kingdom of God was cast off by the Election of Saul since Saul was chosen by God himself and governed according to Gods Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had
of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the Having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders onely for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was annointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou cammandest us we will do and whithersoever thou sendst us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Ius Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them pag. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compell them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that 〈◊〉 King according to Law makes no sort of Government and after he had reckoned up five sorts of Kings he concludes that there were in a manner but two sorts the Lacedemonian King and the Absolute King whereof the first was but as General in an Army and therefore no King at all and then fixes and rests upon the Absolute King who ruleth according to
his own Will V. If it be demanded what is meant by the word People 1. Sometimes it is Populus universus and then every Child must have his Consent asked which is impossible 2. Sometimes it is pars major and sometimes it is pars potior sanior How the major part where all are alike free can bind the minor part is not yet proved But it seems the major part will not carry it nor be allowed except they be the better part and the sounder part We are told the sounder part implored the help of the Army when it saw it self and the Commonwealth betrayed and that the Souldiers judged better than the Great Councel and by Arms saved the Commonwealth which the Great Councel had almost damned by their Votes p. 7. Here we see what the People is to wit the sounder part of which the Army is the judge thus upon the matter the Souldiers are the People which being so we may discern where the Liberty of the People lieth which we are taught to consist all for the most part in the power of the Peoples Choosing what Form of Government they please pag. 61. A miserable Liberty which is onely to choose to whom we will give our Liberty which we may not keep See more concerning the People in a Book entituled The Anarchy p. 8 9 10 11 12 13 14. VI. We are taught that a Father and a King are things most diverse The Father begets us but not the King but we create the King Nature gives a Father to the People the People give themselves a King If the Father kill his Son he loseth his life why should not the King also p. 34. Ans. Father and King are not so diverse it is confessed that at first they were all one for there is confessed Paternum imperium haereditarium p. 141. and this Fatherly Empire as it was of it self hereditary so it was alienable by Patent and seizable by an Usurper as other goods are and thus every King that now is hath a Paternal Empire either by Inheritance or by Translation or Usurpation so a Father and a King may be all one A Father may dye for the Murther of his Son where there is a Superiour Father to them both or the Right of such a Supreme Father but where there are onely Father and Sons no Sons can question the Father for the death of their Brother the reason why a King cannot be punished is not because he is excepted from Punishment or doth not deserve it but because there is no Superiour to judge him but God onely to whom he is reserved VII It is said thus He that takes away from the People the power of Choosing for themselves what Form of Government they please he doth take away that wherein all Civil Liberty almost consists p. 65. If almost all Liberty be in Choosing of the Kind of Government the People have but a poor Bargain of it who cannot exercise their Liberty but in Chopping and Changing their Government and have liberty onely to give away their Liberty than which there is no greater mischief as being the cause of endless Sedition VIII If there be any Statute in our Law by which thou canst find that Tyrannical Power is given to a King that Statute being contrary to Gods Will to Nature and Reason understand that by that general and primary Law of ours that Statute is to be repealed and not of force with us p. 153. Here if any man may be judge what Law is contrary to Gods Will or to Nature or to Reason it will soon bring in Confusion Most men that offend if they be to be punished or fined will think that Statute that gives all Fines and Forfeitures to a King to be a Tyrannical Law thus most Statutes would be judged void and all our Fore-fathers taken for Fools or Madmen to make all our Laws to give all Penalties to the King IX The sin of the Children of Israel did lye not in Desiring a King but in desiring such a King like as the Nations round about had they distrusted God Almighty that governed them by the Monarchical Power of Samuel in the time of oppression when God provided a Judge for them but they desired a perpetual and hereditary King that they might never want in Desiring a King they could not sin for it was but Desiring what they enjoyed by Gods special Providence X. Men are perswaded that in Making of a Covenant something is to be performed on both parts by mutual Stipulation which is not alwayes true for we find God made a Covenant with Noah and his Seed with all the Fowl and the Cattel not to destroy the Earth any more by a flood This Covenant was to be kept on Gods part neither Noah nor the Fowl nor the Cattel were to perform any thing by this Covenant On the other side Gen. 17. 9 10. God covenants with Abraham saying Thou shalt keep my Covenant every male child among you shall be circumcised Here it is called Gods Covenant though it be to be performed onely by Abraham so a Covenant may be called the Kings Covenant because it is made to him and yet to be performed only by the People So also 2 Kin. 11. 17. Iehoiada made a Covenant between the Lord and the King and the People that they should be the Lords People Between the King also and the People which might well be that the People should be the Kings Servants and not for the King 's covenanting to keep any Humane Laws for it is not likely the King should either Covenant or take any Oath to the People when he was but seven years of age and that never any King of Israel took a Coronation-Oath that can be shewed when Iehoiada shewed the King to the Rulers in the House of the Lord he took an Oath of the People he did not Article with them but saith the next Verse Commanded them to keep a Watch of the Kings House and that they should compass the King around about every man with his weapon in his hand and he that cometh within the Ranges let him be slain XI To the Text Where the word of a King is there is Power and who may say unto him What dost thou J. M. gives this Answer It is apparent enough that the Preacher in this place gives Precepts to every private man not to the great Sanhedrin nor to the Senate shall not the Nobles shall not all the other Magistrates shall not the whole People dare to mutter so oft as the King pleaseth to dote We must here note that the great Councel and all other Magistrates or Nobles or the whole People compared 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 I. M. asks Who swears to a King unless the King on the other side be sworn
effectus nec jus idem Here he doth teach in plain words the Effect doth depend upon the Will of the People By this we may judge how improperly he useth the instance of a Woman that appoints her self a Husband whom she must alwayes necessarily obey since the necessity of the continuance of the Wives obedience depends upon the Law of God which hath made the Bond of Matrimony indissolvable Grotius will not say the like for the continuance of the Subjects obedience to the Prince neither will he say that Women may choose Husbands as he tells us the People may choose Kings by giving their Husbands as little Power and for as little a Time as they please Next it is objected that Tutors who are set over Pupils may be removed if they abuse their Power Grotius answers In tutore hoc procedit qui superiorem habet at in imperiis quia progressus non datur in infinitum omnino in aliqua persona aut coetu consistendum est We must stay in some one Person or in a Multitude whose faults because they have no superiour Iudge above them God hath witnessed that he will have a particular care of either to revenge them if he judge it needful or to tolerate them either for Punishment or Tryal of the People It is true in Kingdomes we cannot proceed in infinitum yet we may and must go to the highest which by Grotius his Rule is the People because they first made Kings so that there is no need to stay in aliqua persona but in coetu in the People so that by his Doctrine Kings may be punished by the People but the faults of the People must be left to the Judgment of God I have briefly presented here the desperate Inconveniences which attend upon the Doctrine of the natural freedom and community of all things these and many more Absurdities are easily removed if on the contrary we maintain the natural and private Dominion of Adam to be the fountain of all Government and Propriety And if we mark it well we shall find that Grotius doth in part grant as much The ground why those that now live do obey their Governours is the Will of their Fore-fathers who at the first ordained Princes and in obedience to that Will the Children continue in subjection this is according to the mind of Grotius so that the Question is not Whether Kings have a fatherly Power over their Subjects but how Kings came first by it Grotius will have it that our Fore-fathers being all free made an Assignment of their Power to Kings the other opinion denies any such general freedom of our Fore-fathers but derives the Power of Kings from the Original Dominion of Adam This natural Dominion of Adam may be proved out of Grotius himself who teacheth that geneâ—…ione jus acquiritur Parentibus in Liberos and that â—…urally no other can be found but the Parents to whom the Government should belong and the Right of Ruling and Compelling them doth belong to Parents And in another place he hath these words speaking of the first Commandment Parentum nomine â—…i naturales sunt Magistratus etiam alios Rectores 〈◊〉 est intelligi quorum authoritas Societatem humaâ—…m continet and if Parents be natural Magistrates Children must needs be born natural Subjects But although Grotius acknowledge Parents to â—…e natural Magistrates yet he will have it that Children when they come to full age and are â—…parated from their Parents are free from natural Subjection For this he offers proof out of Ariâ—…le and out of Scripture First for Aristotle we â—…ust note he doth not teach that every separation of Children of full age is an Obtaining of liberty â—…s if that men when they come to years might voâ—…ntarily separate themselves and cast off their â—…atural Obedience but Aristotle speaks onely of passive Separation for he doth not say that Children are subject to Parents until they do sepaâ—…te but he saith until they be separated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in â—…he Verb of the Passive Voice That is until by â—…aw they be separated for the Law which 〈◊〉 nothing else but the Will of him that hath the Power of the Supreme Father doth in many cases for the publick Benefit of Society free Children from subjection to the Subordinate Parent so that the natural Subjection by such Emancipation of Children is not extinguished but onely assumed and regulated by the Parent paramount Secondly Grotius cites Numb 30. to prove that the Power of the Fathers over the Sons and Daughters to dissolve their Vows was not perpetual buâ—… during the time only whilst the Children were part oâ—… the Fathers Family But if we turn to the Chapter we may find that Grotius either deceives himself or us for there is not one word in that Chapter concerning the Vows of Sons but of Daughters only being in their Father's Family and thâ—… Being of the Daughter in the Father's House meaneth only the Daughter 's being a Virgin and noâ—… married which may be gathered by the Argumenâ—… of the whole Chapter which taketh particular order for the Vows of Women of all Estates Firsâ—… for Virgins in the third verse Secondly foâ—… Wives in general in the sixth verse Thirdly foâ—… Widows and Women divorced in the nintâ—… verse There is no Law for Virgins out of theâ—… Father's houses we may not think they woulâ—… have been omitted if they had been free froâ—… their Fathers we find no freedom in the Teâ—… for Women till after Marriage And if they weâ—… married though they were in their Father's hoâ—…ses yet the Fathers had no power of their Vowâ—… but their Husbands If by the Law of Nature departure from tâ—… Fathers house had emancipated Children wâ—… doth the Civil Law contrary to the Law of Nâ—…ture give Power and Remedy to Fathers for to recover by Action of Law their Children that deâ—…rt or are taken away from them without their Consent Without the Consent of Parents the Civil Law allows no emancipation Concerning Subjection of Children to Parents Grotius distinguisheth three several times The first is the time of Imperfect Iudgment The second is the time of Perfect Iudgment but whilst the Son remains part of the Father's Faâ—…ily The third is the time after he hath departed out of his Father's Family In the first time he saith All the actions of Children are under the dominion of the Parents During the second time when they are of the â—…ge of mature Iudgment they are under their Father's Command in those actions onely which are of moment for their Parents Family In other actions the Children have a Power or moral Faculty of doing but they are bound in those also to study alwayes to please their Parents But since this Duty is not by â—…orce of any moral Faculty as those former are but â—…ely of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing
greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of Life as that because they can find no other wayes to defend themselves or because they are so pressed with Poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War onely which reduceth a People to such terms of Extremity as compells them to an absolute Abrenuntiation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Sovereignty and not the free Gift of the People who cannot otherwise choose but give away that Power which they cannot keep Thus upon the Reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Iust War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Iustice Iustitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith that all Kings are not made by the People which may be sufficiently understood by the Examples of a Father of a Family receiving Strangers under the Law of Obedience In both these Passages we have a close and curt acknowledgment that a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle that Dominion came in by the Will of the People and so consequently to overthrow his Usufructuary Kings of whom I am next to speak Grotius saith that the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And that men of their own accord came together into Civil Society from whence springs Civil Power and the People may choose what Form of Government they please Upon these Suppositions he concludes that Kings elected by the People have but an Usufructuary Right that is a Right to take the Profit or Fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Usufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Usufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibiles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Usufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the Part and Duty of a King to govern and he hath a Right so to do and to that End Supreme Power is given unto him the taking of the Profit or making Use of the Patrimony of the Crown is but as a means onely to enable him to perform that great work of Government Besides Grotius will not onely have an elected King but also his lawful Successors to have but an Usufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no Power to alienate it for he supposeth the primary Will of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delata sunt concedo non esse praesumendum eam fuisse Populi voluntatem ut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People for he saith the Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Unum quiddam and in it self indivisible yet he saith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to be that the Government or the Governed may be divided an Example he gives of the Roman Empire which was divided into the East and West but whereas he saith fieri potest c. It may be the People choosing 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 settled 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 Iustitia where he saith Si aliquis de cohabit antibus 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 alleged 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 Whereas 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 onely make the Law of Nature changeable which he saith God cannot do but he also makes the Law of Nature contrary to it self THE ANARCHY OF A Limited or Mixed MONARCHY 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 govern'd 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 antient 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 finde 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 themselves that alters the Form of Government that is whether one man or more than one make the Laws Since the growth of this new Doctrine Of the Limitation and Mixture of Monarchy it is most apparent that Monarchy hath been crucified as it were between two Thieves the Pope and the People for what Principles the Papists make use of for the Power of the Pope above Kings the very same by blotting out the word Pope and putting in the word People the Plebists take up to use against their Soveraigns If we would truely know what Popery is we shall finde by the Laws and Statutes of the Realm that the main and indeed the only Point of Popery is the alienating and withdrawing of Subjects from their Obedience to their Prince to raise Sedition and Rebellion If Popery and Popularity agree in this Point the Kings of Christendome that have shaken off the Power of the Pope have made no great bargain of it if in place of one Lord abroad they get many Lords at home within their own Kingdoms I cannot but reverence that Form of Government which was allowed and made use of for God's own People and for all other Nations It were Impiety to think that God who was careful to appoint Iudicial Laws for his chosen People would not furnish them with the best Form of Government or to imagine that the Rules given in divers places in the Gospel by our blessed Saviour and his Apostles for Obedience to Kings should now like Almanacks out of date be of no use to us because it is pretended We have a Form of Government now not once thought of in those days It is a shame and scandal for us Christians to seek the Original of Government from the Inventions or Fictions of Poets Orators Philosophers and Heathen Historians who all lived thousands of Years after the Creation and were in a manner ignorant of it and to neglect the Scriptures which have with more Authority most particularly given us the true Grounds and Principles of Government These Considerations caused me to scruple this Modern piece of Politicks touching Limited and Mixed Monarchy and finding no other that presented us with the nature and means of Limitation
please to give him and such laws to govern by as they shall make choice of can he shew that ever any Monarch was so gracious or kind-hearted as to lay down his lawful power freely at his Subjects feet is it not sufficient grace if such an absolute Monarch be content to set down a Law to himself by which he will ordinarily govern but he must needs relinquish his old independent commission and take a new one from his Subjects clog'd with limitations Finally I observe that howsoever our Author speak big of the radical fundamental and original power of the people as the root of all Soveraignty yet in a better moode he will take up and be contented with a Monarchy limited by an after-condescent and act of grace from the Monarch himself Thus I have briefly touched his grounds of Limited Monarchy if now we shall ask what proof or examples he hath to justifie his doctrine he is as mute as a fish onely Pythagoras hath said it and we must believe him for though our Author would have Monarchy to be limited yet he could be content his opinion should be absolute and not limited to any rule or example The main Charge I have against our Author now remains to be discussed and it is this That instead of a Treatise of Monarchy he hath brought forth a Treatise of Anarchy and that by his own confessions shall be made good First he holds A limited Monarch transcends his bounds if he commands beyond the law and the Subject legally is not bound to subjection in such cases Now if you ask the Author who shall be judge whether the Monarch transcend his bounds and of the excesses of the soveraign power His answer is There is an impossibility of constituting a judge to determine this last controversie I conceive in a limited legal Monarchy there can be no stated internal Iudge of the Monarchs actions if there grow a fundamental â—…riance betwixt him and the community There can be no Iudge legal and constituted within that form of government In these answers it appears there is no Judge to determine the Soveraigns or the Monarchs transgressing his fundamental limits yet our Author is very cautelous and supposeth onely a fundamental variance betwixt the Monarch and the Community he is ashamed to put the question home I demand of him if there be a variance betwixt the Monarch and any of the meanest persons of the Community who shall be the Judge for instance The King commands me or gives judgement against me I reply His commands are illegal and his judgment not according to Law who must judge if the Monarch himself judge then you destroy the frame of the State and make it absolute saith our Author and he gives his reason for to define a Monarch to a Law and then to make him judge of his own deviations from that Law is to absolve him from all Law On the other side if any or all the people may judge then you put the Soveraignty in the whole body or part of it and destroy the being of Monarchy Thus our Author hath caught himself in a plain dilemma If the King be judge then he is no limited Monarch If the people be judge then he is no Monarch at all So farewell limited Monarchy nay farewell all government if there be no Judge Would you know what help our Author hath found out for this mischief First he saith that a Subject is bound to yield to a Magistrate when he cannot de jure challenge obedience if it be in a thing in which he can possibly without subversion and in which his act may not be made a leading case and so bring on a prescription against publick liberty Again he saith If the act in which the exorbitance or transgression of the Monarch is supposed to be bâ—… of lesser moment and not striking at the very being of that Government it ought to be born by publick patience rather than to endanger the being of the State The like words he uses in another place saying If the will of the Monarch exceed the limits of the law it ought to bâ—… submitted to so it be not contrary to Gods Law nor bring with it such an evil to our selves or the publick that we cannot be accessary to it by obeying These are but fig-leaves to cover the nakedness of our Authors limited Monarch formed upon weak supposals in cases of lesser moment For if the Monarch be to govern onely according to Law no transgression of his can be of so small moment if he break the bounds of Law but it is a subversion of the government it self and may be made a leading case and so bring on a prescription against publick liberty it strikes at the very being of the Government and brings with 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 â—…t 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 onely 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 sâ—…t 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 should 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 judgement of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erronious Yet our Author will have an appeal made to the conscience of all Man-kind and
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Understanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the Good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Aslembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Counsel the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Usage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty dayes before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and onely such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellour tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Councel there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Councel to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall first be transmitted hither under the Great Seal of that Kingdom and having received Allowane and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
can be saved whence it may be inferred That if the Masterly Government of Tyrants cannot be safe without the Preservation of them whom they govern it will follow that a Tyrant cannot govern for his own Profit only and thus his main Definition of Tyranny fails as being grounded upon an impossible Supposition by his own Confession No Example can be shewed of any such Government that ever was in the World as Aristotle describes a Tyranny to be for under the worst of Kings though many particular men have unjustly suffered yet the Multitude or the People in general have found Benefit and Profit by the Government It being apparent that the different kinds of Government in Aristotle arise onely from the difference of the number of Governours whether one a few or many there may be as many several Forms of Governments as there be several Numbers which are infinite so that not onely the several Parts of a City or Commonweal but also the several Numbers of such Parts may cause multiplicity of Forms of Government by Aristotle's Principles It is further observable in Assemblies that it is not the whole Assembly but the major part onely of the Assembly that hath the Government for that which pleaseth the most is alwayes ratified saith Aristotle lib. 4. c. 4. by this means one and the same Assembly may make at one Sitting several Forms of Commonweals for in several Debates and Votes the same number of men or all the self-same men do not ordinarily agree in their Votes and the least Disagreement either in the Persons of the men or in their number alters the Form of Government Thus in a Commonweal one part of the Publick Affairs shall be ordered by one Form of Government and another part by another Form and a third part by a third Form and so in infinitum How can that have the Denomination of a Form of Government which lasts but for a moment onely about one fraction of Business for in the very instant as it were in the Twinkling of an eye while their Vote lasteth the Government must begin and end To be governed is nothing else but to be obedient and subject to the Will or Command of another it is the Will in a man that governs ordinarily mens Wills are divided according to their several Ends or Interests which most times are different and many times contrary the one to the other and in such cases where the Wills of the major part of the Assembly do unite and agree in one Will there is a Monarchy of many Wills in one though it be called an Aristocracy or Democracy in regard of the several Persons it is not the many Bodies but the one Will or Soul of the Multitude that governs Where one is set up out of many the People becometh a Monarch because many are Lords not separately but altogether as one therefore such a People as if it were a Monarch seeks to bear Rule alone L. 4. c. 4. It is a false and improper Speech to say that a whole Multitude Senate Councel or any Multitude whatsoever doth govern where the major part only rules because many of the Multitude that are so assembled are so far from having any part in the Government that they themselves are governed against and contrary to their Wills there being in all Government various and different Debates and Consultations it comes to pass oft-times that the major part in every Assembly differs according to the several Humours or Fancies of men those who agree in one Mind in one Point are of different Opinions in another every Change of Business or new Matter begets a new major part and is a Change both of the Government and Governours the Difference in the Number or in the Qualities of the Persons that govern is the only thing that causes different Governments according to Aristotle who divides his Kinds of Government to the Number of one a few or many As amongst the Romans their Tribunitial Laws had several Titles according to the Names of those Tribunes of the People that preferr'd and made them So in other Governments the Body of their Acts and Ordinances is composed of a Multitude of momentary Monarchs who by the Strength and Power of their Parties or Factions are still under a kind of a civil War fighting and scratching for the legislative miscellany or medly of several Governments If we consider each Government according to the nobler Part of which it is composed it is nothing else but a Monarchy of Monothelites or of many men of one Will most commonly in one Point only but if we regard only the baser part or Bodies of such Persons as govern there is an interrupted Succession of a Multitude of short-lived Governments with as many Intervalls of Anarchy so that no man can say at any time that he is under any Form of Government for in a shorter time than the word can be spoken every Government is begun and ended Furthermore in all Assemblies of what Quality soever they be whether Aristocratical or Democratical as they call them they all agree in this one Point to give that honourable Regard to Monarchy that they do interpret the major or prevailing part in every Assembly to be but as one man and so do feign to themselves a kind of Monarchy Though there be neither Precept nor Practice in Scripture nor yet any Reason alledged by Aristotle for any Form of Government but only Monarchy yet it is said that it is evident to common Sense that of old time Rome and in this present Age Venice and the Low-Countries enjoy a Form of Government different from Monarchy Hereunto it may be answered That a People may live together in Society and help one another and yet not be under any Form of Government as we see Herds of Cattel do and yet we may not say they live under Government For Government is not a Society only to live but to live well and vertuously This is acknowledged by Aristotle who teacheth that the End of a City is to live blessedly and honestly Political Communities are ordained for honest Actions but not for living together only Now there be two things principally required to a blessed and honest life Religion towards God and Peace towards men that is a quiet and peaceable Life in all Godliness and Honesty 1 Tim. 2. 2. Here then will be the Question Whether Godliness and Peace can be found under any Government but Monarchy or whether Rome Venice or the Low-Countries did enjoy these under any popular Government In these two Points let us first briefly examine the Roman Government which is thought to have been the most glorious For Religion we find presently after the Building of the City by Romulus the next King Numa most devoutly established a Religion and began his Kingdom with the Service of the Gods he forbad the Romans to make any Images of God which Law lasted and was observed 170 Years there being in
all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifâ—… Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not be lawful for any to consecrate either Houses Grounds Altars or any other things without the Determinatin of the People Domitius Aenobarbus another Tribune enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or admission from the Colledge thus by a Committee of seven Tribes taken out of thirty five the ancient Form of Religion was alter'd and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a popular estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War l. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Ianus shut after the end of the first Punique War but not so long as for one year but for some Moneths It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius 〈◊〉 Augustus Caesar only for one Summer the Bowels 〈◊〉 Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone soils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthagâ—… the Beginning of which War Sir Walter Raleigâ—… proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kinghâ—… Power of the Consuls who as Livy saith had the same Royal Iurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensignes of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shewes of Government the Popular which served only to raise Seditions and Discords within the Walls whilest the Regal atchieved the Conquests of Foreign Nations and Kingdomes Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still Resort to the Creation of a Dictator who for the time was an absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no Security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the
Citizens of Rome who had been Conquerours of all Nations round about them could not endure of Warriers to become Quarriers and Day-labourers Whereas it is said that Tarquin was expelled for the Rape committed by his Son on Lucrece it is unjust to condemn the Father for the Crime of his Son it had been fit to have petitioned the Father for the Punishment of the Offender The Fact of young Tarquin cannot be excused yet without wrong to the Reputation of so chaste a Lady as Lucrece is reputed to be it may be said she had a greater Desire to be thought chaste than to be chaste she might have died untouched and unspotted in her Body if she had not been afraid to be slandered for Inchastity both Dionysius Halicarnasseus and Livie who both are her Friends so tell the Tale of her as if she had chosen rather to be a Whore than to be thought a Whore To say Truth we find no other Cause of the Expulsion of Tarquin than the Wantonness and Licentiousness of the People of Rome This is further to be considered in the Roman Government that all the time between their Kings and their Emperours there lasted a continued strife between the Nobility and Commons wherein by Degrees the Commons prevailed at last so to weaken the Authority of the Consuls and Senate that even the last sparks of Monarchy were in a manner extinguished and then instantly began the Civil War which lasted till the Regal Power was quickly brought home and setled in Monarchy So long as the Power of the Senate stood good for the Election of Consuls the Regal Power was preserved in them for the Senate had their first Institution from Monarchy It is worth the noting that in all those places that have seemed to be most popular that weak Degree of Government that hath been exercised among them hath been founded upon and been beholden unto Monarchical Principles both for the Power of assembling and manner of consulting for the entire and gross Body of any People is such an unweildy and diffused thing as is not capable of uniting or congregating or deliberating in an entire Lump but in broken Parts which at first were regulated by Monarchy Furthermore it is observable that Rome in her chief Popularity was oft beholden for her Preservation to the Monarchical Power of the Father over the Children by means of this Fatherly Power saith Bodin the Romans flourished in all Honour and Vertue and oftentimes was their Common-weal thereby delivered from most imminent Destruction when the Fathers drew out of the Consistory their Sons being Tribunes publishing Laws tending to Sedition Amongst others Cassius threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the Behoof of the People and after by his own private Judgment put him to Death the Magistrates Serjeants and People standing thereat astonied and not daring to withstand his Fatherly Authority although they would with all their Power have had that Law for Division of Lands which is sufficient Proof this Power of the Father not only to have been sacred and inviolable but also to have been lawful for him either by Right or Wrong to dispose of the Life and Death of his Children even contrary to the Will of the Magistrates and People It is generally believed that the Government of Rome after the Expulsion of Kings was popular Bodin endeavours to prove it but I am not satisfied with his Arguments and though it will be thought a Paradox yet I must maintain it was never truly popular First it is difficult to agree what a popular Government is Aristotle saith it is where Many or a Multitude do rule he doth not say where the People or the major part of the People or the Representors of the People govern Bodin affirms if all the People be interessed in the Government it is a Popular Estate Lib. 2. c. 1. but after in the same Chapter he resolves that it is a Popular Estate when all the People or the greater part thereof hath the Sovereignty and he puts the Case that if there be threescore thousand Citizens and forty thousand of them have the Sovereignty and twenty thousand be excluded it shall be called a popular Estate But I must tell him though fifty nine thousand nine hundred ninety nine of them govern yet it is no popular Estate for if but one man be excluded the same reason that excludes that one man may exclude many hundreds and many thousands yea and the major part it self if it be admitted that the People are or ever were free by Nature and not to be governed but by their own Consent it is most unjust to exclude any one man from his Right in Government and to suppose the People so unnatural as at the first to have all consented to give away their Right to a major part as if they had Liberty given them only to give away and not to use it themselves is not onely improbable but impossible for the whole People is a thing so uncertain and changeable that it alters every moment so that it is necessary to ask of every Infant so soon as it is born its Consent to Government if you will ever have the Consent of the whole People Moreover if the Arbitrary Tryal by a Jury of twelve men be a thing of that admirable Perfection and Justice as is commonly believed wherein the Negative Voice of every single Person is preserved so that the dissent of any of the twelve frustrates the whole Judgment How much more ought the natural freedom of each man be preserved by allowing him his Negative Voice which is but a continuing him in that estate wherein it is confessed Nature at first placed him Justice requires that no one Law should bind all except all consent to it there is nothing more violent and contrary to Nature than to allow a major part or any other greater part less than the whole to bind all the People The next difficulty to discovering what a Popular Estate is is to find out where the Supreme Power in the Roman Government rested it is Bodin's opinion that in the Roman state the Government was in the Magistrates the Authority and Counsel in the Senate but the Sovereign Power and Majesty in the People Lib. 2. c. 1. So in his first Book his Doctrine is that the ancient Romans said Imperium in Magistratibus Authoritatem in Senatu Potestatem in plebe Majestatem in Populi jure esse dicebant These four words Command Authority Power and Majesty signifie ordinarily one and the same thing to wit the Sovereignty or supreme Power I cannot find that Bodin knows how to distinguish them for they were not distinct Faculties placed in several Subjects but one and the same thing diversly qualified for Imperium Authoritas Potestas and Majestas were all originally in the Consuls although for the greater shew the Consuls would have the Opinion and Consent of
Centuries This Assembly by Centuries as it was more Ancient than that by Tribes so it was more truly popular because all the Nobility as well as the Commons had Voices in it The Assembly by Tribes was pretended at first only to elect Tribunes of the People and other inferiour Magistrates to determine of lesser Crimes that were not Capital but only finable and to decree that Peace should be made but they did not meddle with denouncing War to be made for that high Point did belong only to the Assembly of the Centuries and so also did the judging of Treason and other Capital Crimes The Difference between the Assembly of the Tribes and of the Centuries is very material for though it be commonly thought that either of these two Assemblies were esteemed to be the People yet in Reality it was not so for the Assembly of the Centuries only could be said to be the People because all the Nobility were included in it as well as the Commons whereas they were excluded out of the Assembly of the Tribes and yet in Effect the Assembly of the Centuries was but as the Assembly of the Lords or Nobles only because the lesser and richer part of the People had the Sovereignty as the Assembly of the Tribes was but the Commons only In maintenance of the popular Government of Rome Bodin objects that there could be no regal Power in the two Consuls who could neither make Law nor Peace nor War The Answer is though there were two Consuls yet but one of them had the Regality for they governed by Turns one Consul one Moneth and the other Consul another Moneth or the first one day and the second another day That the Consuls could make no Laws is false it is plain by Livy that they had the Power to make Laws or War and did execute that Power though they were often hindered by the Tribunes of the People not for that the Power of making Laws or War was ever taken away from the Consuls or communicated to the Tribunes but onely the Exercise of the Consular Power was suspended by a seeming humble way of intercession of the Tribunes The Consuls by their first Institution had a lawful Right to do those things which yet they would not do by reason of the shortness of their Reigns but chose rather to countenance their actions with the title of a Decree of the Senate who were their private Councel yea and sometimes with the Decree of the Assembly of the Centuries who were their Publick Counsel for both the Assembling of the Senate and of the Centuries was at the Pleasure of the Consuls and nothing was to be propounded in either of them but at the Will of the Consuls which argues a Sovereignty in them over the Senate and Centuries the Senate of Rome was like the House of Lords the Assembly of the Tribes resembled the House of Commons but the Assembling of the Centuries was a Body composed of Lords and Commons united to Vote together The Tribunes of the People bore all the Sway among the Tribes they called them together when they pleased without any Order whereas the Centuries were never Assembled without Ceremony and Religious observation of the Birds by the Augurs and by the Approbation of the Senate and therefore were said to be auspicata and ex authoritate Patrum These things considered it appears that the Assembly of the Centuries was the only legitimate and great Meeting of the People of Rome as for any Assembling or Electing of any Trustees or Representors of the People of Rome in nature of the modern Parliaments it was not in Use or ever known in Rome Above two hundred and twenty years after the expulsion of Kings a sullen humour took the Commons of Rome that they would needs depart the City to Ianiculum on the other side of Tybur they would not be brought back into the City until a Law was made That a Plebiscitum or a Decree of the Commons might be observed for a Law this Law was made by the Dictator Hortensius to quiet the Sedition by giving a part of the Legislative Power to the Commons in such inferiour matters only as by Toleration and Usurpation had been practised by the Commons I find not that they desired an Enlargement of the Points which were the Object of their Power but of the Persons or Nobility that should be subject to their Decrees the great Power of making War of creating the greater Magistrates of judging in Capital Crimes remained in the Consuls with the Senate and Assembly of the Centuries For further manifestation of the broken and distracted Government of Rome it is fit to consider the original Power of the Consuls and of the Tribunes of the Commons who are ordinarily called the Tribunes of the People First it is undeniable that upon the expulsion of Kings Kingly power was not taken away but only made Annual and changeable between two Consuls who in their Turns and by course had the Sovereignty and all Regal power this appears plainly in Livy who tells us that Valerius Publicola being Consul he himself alone ordained a Law and then assembled a general Session Turemillus Arsa inveighed and complained against the Consul's Government as being so absolute and in Name only less odious than that of Kings but in Fact more cruel for instead of one Lord the City had received twain having Authority beyond all Measure unlimited and infinite Sextius and Licinus complain that there would never be any indifferent Course so long as the Nobles kept the Sovereign Place of Command and the Sword to strike whiles the poor Commons have only the Buckler their Conclusion was that it remains that the Commons bear the Office of Consuls too for that were a Fortress of their Liberty from that day forward shall the Commons be Partakers of those things wherein the Nobles now surpass them namely Sovereign Rule and Authority The Law of the twelve Tables affirms Regio imperio duo sunto iique Consules appellantor Let two have regal Power and let them be called Consuls also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls These are proofs sufficient to shew the Royal Power of the Consuls About sixteen years after the first Creation of Consuls the Commons finding themselves much run into Debt by wasting their Estates in following the Wars and so becoming as they thought oppressed by Usury and cast into Prison by the Judgment and Sentence of the Consuls they grievously complained of Usury and of the Power of the Consuls and by Sedition 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 Politiques 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 denyeth 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 interceeding 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 hindring 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 contentionsome 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 Ianiculum 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 it in Florus his Epitome and St. Augustine mentions the Plundring 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 Spoil 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 other and is quite contrary to the indivisible nature of Sovereignty The Truth is the Consuls having but annual Sovereignty were glad for their own Safety and Ease in Matters of great Importance and Weight to call together sometimes the Senate who were their ordinary Councel and many times the Centuries of the People who were
while to be Governed to be a King in the forenoon and a Subject in the afternoon this is the onely Liberty that a Popular Estate can brag of that where a Monarchy hath but one King their Government hath the liberty to have many Kings by turns If the Common People look for any other Liberty either of their Persons or their Purses they are pitifully deceived for a perpetual Army and Taxes are the principal materials of all Popular Regiments never yet any stood without them and very seldom continued with them many popular Estates have started up but few have lasted It is no hard matter for any kind of Government to last one or two or three dayes l. 6. c. 5. For all such as out of hope of Liberty attempt to erect new Forms of Government he gives this prudent Lesson We must look well into the continuance of Time and remembrance of many Years wherein the means tending to establish Community had not lain hid if they had been good and useful for almost all things have been found out albeit some have not been received and other some have been rejected after men have had experience of them l. 2. c. 5. It is believed by many that at the very first Assembling of the People it was unanimously agreed in the first place that the Consent of the major part should bind the whole and that though this first Agreement cannot possibly be proved either how or by whom it should be made yet it must necessarily be believed or supposed because otherwise there could be no lawful Government at all That there could be no lawful Government except a general Consent of the whole People be first surmised is no sound proposition yet true it is that there could be no popular Government without it But if there were at first a Government without being beholden to the People for their Consent as all men confess there was I find no reason but that there may be so still without asking Leave of the Multitude If it be true that men are by nature free-born and not to be governed without their own Consents and that Self-preservation is to be regarded in the first place it is not lawful for any Government but Self-government to be in the World it were sin in the People to Desire or attempt to Consent to any other Government if the Fathers will promise for themselves to be Slaves yet for their Children they cannot who have alwayes the same Right to set themselves at Liberty which their Fathers had to Enslave themselves To pretend that a major part or the silent Consent of any part may be interpreted to bind the whole People is both unreasonable and unnatural it is against all Reason for men to bind others where it is against Nature for men to bind themselves Men that boast so much of natural Feeedom are not willing to consider how contradictory and destructive the Power of a major part is to the natural Liberty of the whole People the two grand Favourites of the Subjects Liberty and Property for which most men pretend to strive are as contrary as Fire to Water and cannot stand together Though by humane Laws in Voluntary Actions a major part may be tolerated to bind the whole Multitude yet in Necessary Actions such as those of Nature are it cannot be so Besides if it were possible for a whole People to choose their Representors then either every each one of those Representors ought to be particularly chosen by the whole People and not one Representor by one part and another Representor by another part of the People or else it is necessary that continually the entire Number of the Representors be present because otherwise the whole People is never represented Again it is impossible for the People though they might and would choose a Government or Governours ever to be able to do it for the People to speak truly and properly is a thing or Body in continual Alteration and Change it never continues one Minute the same being composed of a Multitude of Parts whereof divers continually decay and perish and others renew and succeed in their places they which are the People this Minute are not the People the next Minute If it be answered that it is impossible to stand so strictly as to have the Consent of the whole People and therefore that which cannot be must be supposed to be the Act of the whole People This is a strange Answer first to affirm a Necessity of having the Peoples Consent than to confess an Impossibility of having it If but once that Liberty which is esteemed so sacred be broken or taken away but from one of the meanest or basest of all the People a wide Gap is thereby opened for any Multitude whatsoever that is able to call themselves or whomsoever they please the People Howsoever men are naturally willing to be perswaded that all Sovereignty flows from the Consent of the People and that without it no true Title can be made to any Supremacy and that it is so currant an Axiome of late that it will certainly pass without Contradiction as a late Exercitator tells us yet there are many and great Difficulties in the Point never yet determined not so much as disputed all which the Exercitator waves and declines professing he will not insist upon the Distinctions touching the manner of the Peoples passing their Consent nor determine which of them is sufficient and which not to make the Right or Title whether it must be Antecedent to Possession or may be consequent Express or Tacite Collective or Representative Absolute or conditionated Free or Inforced Revocable or Irrevocable All these are material Doubts concerning the Peoples Title and though the Exercitator will not himself determine what Consent is sufficient and what not to make a Right or Title yet he might have been so courteous as to have directed us to whom we might go for Resolution in these Cases But the Truth is that amongst all them that plead the Necessity of the Consent of the People not one of them hath ever toucht upon these so necessary Doctrines it is a Task it seems too difficult otherwise surely it would not have been neglected considering how necessary it is to resolve the Conscience touching the manner of the Peoples passing their Consent and what is sufficient and what not to make or derive a Right or Title from the People No Multitude or great Assembly of any Nation though they be all of them never so good and vertuous can possibly govern this may be evidently discovered by considering the Actions of great and numerous Assemblies how they are necessitated to relinquish that supreme Power which they think they exercise and to delegate it to a few There are two Parts of the Supreme Power the legislative and the Executive neither of these can a great Assembly truly act If a new Law be to be made it may in the General receive the Proposal of
it from one or more of the General Assembly but the forming penning or framing it into a Law is committed to a few because a great number of persons cannot without tedious and dilatory Debates examine the Benefits and Mischiefs of a Law Thus in the very first Beginning the Intention of a general Assembly is frustrated then after a Law is penned or framed when it comes to be questioned whether it shall pass or nay though it be Voted in a full Assembly yet by the Rules of the Assembly they are all so tyed up and barred from a free and full Debate that when any man hath given the Reasons of his Opinion if those Reasons be argued against he is not permitted to reply in Justification or Explanation of them but when he hath once spoken he must be heard no more which is a main Denial of that Freedome of Debate for which the great Assembly is alleaged to be ordained in the high Point of Legislative Power The same may be said touching the executive Power if a cause be brought before a great Assembly the first thing done is to referr or commit it to some few of the Assembly who are trusted with the examining the Proofs and Witnesses and to make Report to the general Assembly who upon the Report proceed to give their Judgments without any publick hearing or interrogating the Witnesses upon whose Testimonies diligently examined every man that will pass a conscientious judgment is to rely Thus the legislative and executive Power are never truly practised in a great Assembly the true Reason whereof is if Freedom be given to Debate never any thing could be agreed upon without endless Disputes meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees Those Governments that seem to be popular aâ—… kinds of petty Monarchies which may thus appear Government is a Relation between the Governours and the governed the one cannot be without the other mutuò se ponunt auferunt where a Command or Law proceeds from a major part there those individual Persons that concurred in the Vote are the Governours because the Law is only their Will in particular the Power of a major Part being a contingent or casual thing expires in the very Act it self of voting which Power of a major part is grounded upon a Supposition that they are the stronger part when the Vote is past these Voters which are the major part return again and are incorporated into the whole Assembly and are buried as it were in that Lump and no otherwise considered the Act or Law ordained by such a Vote loseth the Makers of it before it comes to be obeyed for when it comes to be put in Execution it becomes the Will of those who enjoyn it and force Obedience to it not by Virtue of any Power derived from the Makers of the Law No man can say that during the Reign of the late Queen Elizabeth that King Henry the 8th or Edward the sixth did govern although that many of the Laws that were made in those two former Princes times were observed and executed under her Government but those Laws though made by her Predecessours yet became the Laws of her present Government who willed and commanded the Execution of them and had the same Power to correct interpret or mitigate them which the first makers of them had every Law must always have some present known Person in Being whose Will it must be to make it a Law for the Present this cannot be said of the major part of any Assembly because that major part instantly ceaseth as soon as ever it hath voted an infallible Argument whereof is this that the same major part after the Vote given hath no Power to correct alter or mitigate it or to Cause it to be put in Execution so that he that shall act or cause that Law to be executed makes himself the Commander or willer of it which was originally the Will of others It is said by Mr. Hobs in his Leviathan page 141. nothing is Law where the Legislator cannot be known for there must be manifest Signs that it proceedeth from the Will of the Sovereign there is requisite not only a Declaration of the Law but also sufficient Signs of the Author and the Authority That Senate or great Councel wherein it is conceived the supreme or legislative Power doth rest consists of those Persons who are actually Subjects at the very same time wherein they exercise their legislative Power and at the same Instant may be guilty of breaking one Law whilest they are making another Law for it is not the whole and entire Will of every particular Person in the Assembly but that part onely of his Will which accidentally falls out to concurr with the Will of the greater part So that the Sharers of the legislative Power have each of them perhaps not a hundreth part of the legislative Power which in it self is indivisible and that not in Act but in Possibility only in one particular Point for that Moment whilst they give their Vote To close this Point which may seem strange and new to some I will produce the Judgment of Bodin in his sixth Book of a Commonweal and the fourth Chapter his words are The chief Point of a Commonweal which is the Right of Sovereignty cannot be nor insist to speak properly but in Monarchy for none can be Sovereign in a Commonweal but one alone if they be two or three or more no one is Sovereign for that no one of them can give or take a Law from his Companion and although we imagine a Body of many Lords or of a whole People to hold the Sovereignty yet hath it no true Ground nor Support if there be not a Head with absolute Power to unite them together which a simple Magistrate without Sovereign Authority cannot do And if it chance that the Lords or Tribes of the People be divided as it often falls out then must they fall to Arms one against another and although the greatest part be of one Opinion yet may it so happen as the lesser part having many Legions and making a Head may oppose it self against the greater Number and get the Victory We see the Difficulties which are and always have been in popular Estates whereas they hold contrary Parts and for divers Magistrates some demand Peace others War some will have this Law others that some will have one Commander others another some will treat a League with the King of France others with the King of Spain corrupted or drawn some one Way some another making open War as hath been seen in our Age amongst the Grisons c. Upon these Texts of Aristotle forecited and from the Mutability of the Roman Popularity which Aristotle lived not to see I leave the Learned to consider whether it be not probable that these or the like Parodoxes may be inferred to be the plain Mind of Aristotle viz. 1.
to keep Gods Laws and the Laws of the Countrey We find that the Rulers of Israel took an Oath at the Coronation of Iehoash 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 onely 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 Sutes 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 Ius 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 onely and were they duely 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 onely 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 onely 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 alwayes be presumed innocent though never so ill if he cannot lawfully be heard I. 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 Privileges Customs Forms and that old entanglement of Iniquity their gibrish Laws are the Badges of ancient Slavery Tenure pag. 3. a Disputing Presidents Forms and Circumstances pag. 5. I. 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 alwayes 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 I. 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 I. 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 Polytheisme or multitudes of gods as of Governours and imagining Aristocratie and Democratie in Heaven as on Earth OBSERVATIONS UPON H. Grotius DE IURE 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 Ius Naturae and Ius 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 Ius Naturae Ius Gentium and Ius Civile But in another Text of the same Law we find only a twofold Division into Ius Civile and Ius Gentium This latter Division the Law takes from Gaius the former from Ulpian who will have Ius 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 Ius Naturale est commune omnium nationum That 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. Ius Naturae is confounded with Ius Gentium As the Civilians sometimes confound and sometimes separate the Law of Nature
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. Seldens acknowledgment hath obtained Reputation every where seems most reasonable in that it 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 Iure 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 nune 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 choose rather to dye than in any case by Arms to repell 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 Commonwealth 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 Commonwealth 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 Superiors 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 laudible Service without Disturbance of the Commonwealth 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 Superiors If saith he any man shall say that this rigid Doctrine of dying rather then 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 wholsome 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 cetainly appear that the People long ago willed otherwise lib. 2. c. 2. For fuller Explication of his Judgment about resisting Superiours 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 common Good Another Doctrine of Grotius is that the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth that
the People may choose what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. c. 3. Also that the People choosing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiours is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No Doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us he rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the Cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition that in some Places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion that People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right and you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this that the People may grant away their Power without retaining any part But what is this to what the People have done for though the People may give away their Power without Reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his Favour the Point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged that in all Presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any Benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings Part who are in Possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the People the Labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an Instant with any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius that although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implyed that it was upon condition to be well-governed and that the Non-performance of that implyed Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said that the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected that he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be that by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say that it is by any necessity of the Law of Nature or by any positive Law of God he teacheth that non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth onely approve it ut humanum and humano modo He tells us further that Populus potest eligere qualem vult gubernationis forâ—…am ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they â—…ay make temporary Kings as Dictators and Protectors jus quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his â—…i potestatem revocabiliter dederunt ac proinde non idem est
is void being made by any Owner whatsoever against the â—…ules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the Power of a Parent dâ—…th so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith the Son is in all things Free and of his own Authority always that Duâ—… remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are alwayes bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws onely which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the Permission of the transcendent Fatherly power of the Supreme Prince Children may be dispensed with or privileged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth that the Power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith that the Power over the Son or Daughter to dissolve Vows was not perpetual but did indure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three wayes Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Usufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdome That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title onely make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth onely put the Conquerour in possession of his old Right but not create a New The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdome which gives a Form to the Kingdom but a Continuation of the Old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right onely for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are Free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he have a Title it is an unjust War that takes the Kingdom from him If he have no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule that where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the judgment of Grotius But if it be admitted that he that attempts to conquer have a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Ubi Iudicia deficiunt incipit Bellum Lib. 2. c. 1. And thus upon the matter I cannot find in Grotius's Book de Iure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est qua se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2. c. 5. If Subjection be the Gift of the People how can Supreme Power pleno Iure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a
themselves and us to a supream power As the Scripture teacheth us that supream power was originally in the fatherhood without any limitation so likewise Reason doth evince it that if God ordained that Supremacy should be that then Supremacy must of necessity be unlimited for the power that limits must be above that power which is limited if it be limited it cannot be supream so that if our Author will grant supream power to be the ordinance of God the supream power will prove it self to be unlimited by the same ordinance because a supream limited power is a contradiction The Monarchical power of Adam the Father of all flesh being by a general binding ordinance setled by God in him and his posterity by right of fatherhood the form of Monarchy must be preferr'd above other forms except the like ordinance for other forms can be shewed neither may men according to their relations to the form they live under to their affections and judgments in divers respects prefer or compare any other form with Monarchy The point that most perplexeth our Author and many others is that if Monarchy be allowed to be the ordinance of God an absurdity would follow that we should uncharitably condemn all the Communities which have not that form for violation of Gods ordinance and pronounce those other powers unlawful If those who live under a Monarchy can justifie the form they live under to be Gods ordinance they are not bound to forbear their own justification because others cannot do the like for the form they live under let others look to the defence of their own Government if it cannot be provd or shewd that any other form of government had ever any lawful beginning but was brought in or erected by Rebellion must therefore the lawful and just obedience to Monarchy be denied to be the ordinance of God To proceed with our Author in the 3 page he saith the Higher Power is Gods ordinance That it resideth in One or more in such or such a way is from humane designment God by no word binds any people to this or that form till they by their own act bind themselves Because the power and consent of the people in government is the burden of the whole Book and our author expects it should be admitted as a magisterial postulation without any other proof than a naked supposition and since others also maintain that originally Power was or now is in the People that the first Kings were chosen by the People they may not be offended if they be asked in what sence they understand the word People because this as many other words hath different acceptions being sometimes taken in a larger otherwhiles in a stricter sence Literally and in the largest sence the word People signifies the whole multitude of mankind but figuâ—…tively and synecdochically it notes many times the â—…ajor part of a multitude or sometimes the better or the richer or the wiser or some other part and oftentimes a very small part of the people if there be no other apparent opposite party hath the name of the people by presumption If they understand that the entire multitude or whole people have originally by nature power to chuse a King they must remember that by their own principles and rules by nature all mankind in the world makes but one People who they suppose to be born alike to an equal freedome from subjection and where such freedome is there â—…ll things must of necessity be common and therefore without a joynt consent of the whole people â—…f the world no one thing can be made proper 〈◊〉 any one man but it will be an injury and an â—…urpation upon the common right of all others â—…rom whence it follows that natural freedome beâ—…ing once granted there cannot be any one man â—…osen a King without the universal consent of all the people of the world at one instant nemine contradicente Nay if it be true that nature hath made all men free though all mankind should concur in one vote yet it cannot seem reasonable that they should have power to alter the law of nature for if no man have power to take away his own life without the guilt of being a murtherer of himself how can any people confer such a power as they have not themselves upon any one man without being accessories to their own deaths and every particular man become guilty of being felo de se If this general signification of the word people be disavowed and men will suppose that the people of particular Regions or Countries have power and freedome to chuse unto themselves Kings then let them but observe the consequence Since nature hath not distinguished the habitable world into Kingdomes nor determined what part of a people shall belong to one Kingdome and what to another it follows that the original freedome of mankind being supposed every man is at liberty to be of what Kingdome he please and so every petty company hath a right to make a Kingdom by it self and not onely every City but every Village and every Family nay and every particular man a liberty to chuse himself to be his own King if he please and he were a madman that being by nature free would chuse any man but himself to be his own Governour Thus to avoid the having but of one King of the whole world we shall run into a liberty of having as many Kings as there be men in the world which upon the matter is to have no King at all but to leave all men to their natural liberty which is the mischief the Pleaders for natural liberty do pretend they would most avoid But if neither the whole people of the world nor the whole people of any part of the world be meant but only the major part or some other part of a part of the world yet still the objection will be the stronger For besides that nature hath made no partition of the world or of the people into distict Kingdomes and that without an universal consent at one and the same instant no partition can be made yet if it were lawful for particular parts of the world by consent to chuse their Kings nevertheless their elections would bind none to subjection but only such as consented for the major part never binds but where men at first either agree to be so bound or where a higher power so commands Now there being no higher power than nature but God himself where neither nature nor God appoints the major part to bind their consent is not binding to any but only to themselves who consent Yet for the present to gratifie them so far as to admit that either by nature or by a general consent of all mankind the world at first was divided into particular Kingdomes and the major part of the people of each Kingdome assembled allowed to chuse their King yet it cannot truly be said that ever the whole people or the
forgot himself and reckons up a fifth kind of Monarchy which is saith he When one alone hath Supream power of all the rest for as there is a domestical Kingdom of one house so the Kingdom of a City or of one or many Nations is a Family These are all the sorts of Monarchy that Aristotle hath found out and he hath strained hard to make them so many first for his Lacedemonian King himself confesseth that he was but a kind of Military Commander in War and so in effect no more a King than all Generals of Armies And yet this No-king of his was not limited by any Law nor mixed with any companions of his Government when he was in the Wars out of the Confines of Lacedemon he was as Aristotle stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of full and absolute command no Law no companion to govern his Army but his own will Next for Aristotles Aesymnetical King it appears he was out of date in Aristotles time for he saith he was amongst the antient Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristotle might well have spared the naming him if he had not wanted other sorts for the honour of his own Nation for he that but now told us the Barbarians were of a more servile nature than the Grecians comes here and tells us that these old Greek Kings were Elective Tyrants The Barbarians did but suffer Tyrants in shew but the old Grecians chose Tyrants indeed which then must we think were the greater slaves the Greeks or the Barbarians Now if these sorts of Kings were Tyrants we cannot suppose they were limited either by Law or joyned with companions Indeed Arist. saith some of these Tyrants were limited to certain times and actions for they had not all their power for term of life nor could meddle but in certain businesses yet during the time they were Tyrants and in the actions whereto they were limited they had absolute power to do what they list according to their own will or else they could not have been said to be Tyrants As for Aristotles Heroick King he gives the like note upon him that he did upon the Aesymnet that he was in old time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Heroick times The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms was only the means by which the first Kings obtained their Kingdoms and not the manner of Government for in that they were as absolute as other Kings were without either limitation by Law or mixture of companions Lastly as for Arist. Barbarick sort of Kings since he reckoned all the world Barbarians except the Grecians his Barbarick King must extend to all other sorts of Kings in the world besides those of Greece and so may go under Aristotles fifth sort of Kings which in general comprehends all other sorts and is no special form of Monarchy Thus upon a true accompt it is evident that the five several sorts of Kings mentioned by Aristotle are at the most but different and accidental means of the first obtaining or holding of Monarchies and not real or essential differences of the manner of Government which was always absolute without either limitation or mixture I may be thought perhaps to mistake or wrong Aristotle in questioning his diversities of Kings but it seems Aristotle himself was partly of the same mind for in the very next Chapter when he had better considered of the point he confessed that to speak the truth there were almost but two sorts of Monarchies worth the considering that is his first or Laconique sort and his fifth or last sort where one alone hath Supream power over all the rest thus he hath brought his five sorts to two Now for the first of these two his Lacedemonian King he hath confessed before that he was no more than a Generalissimo of an Army and so upon the matter no King at all and then there remains onely his last sort of Kings where one alone hath the Supream power And this in substance is the final resolution of Aristotle himself for in his sixteenth Chapter where he delivers his last thoughts touching the kinds of Monarchy he first dischargeth his Laconick King from being any sort of Monarchy and then gives us two exact rules about Monarchy and both these are pointblank against limited and mixed Monarchy therefore I shall propose them to be considered of as concluding all Monarchy to be absolute and Arbitrary 1. The one Rule is that he that is said to be a King according to Law is no sort of Government or Kingdom at all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. The second rule is that a true King is he that ruleth all according to his own will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This latter frees a Monarch from the mixture of partners or sharers in 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 onely 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 Iews 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 Arist. 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 Aristotles 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 Aristotles judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Unto 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