Privileges each of them insomuch that the United Provinces and united Cantons are but Confederacies and Leaguers and not two entire Commonweals Associates onely for mutual Defence Nay the Cantons of Swisserland are not only several Republicks but reputed to have different Forms of Commonweals some being said to be Aristocratically governed and others Democratically as the Mountaineers and some of the Cantons are Papists and some Protestants and some mixt of both we do not find that any large or great Dominion or Kingdom united in one Government and under the same Laws was ever reduced at once to any kind of Popular Government and not confined to the subjection of one City This being a thing not yet done requires the abler men to settle such a Peaceable Government as is to be desired there being no Precedent in the case all that can be done in it is at first to enquire into such other Governments as have been existent in the World As a Preface to such an Enquiry the Sacred Scripture if it be but for the Antiquity of it would be consulted and then Aristotle the grand Master of Politiques and after him the Greek and Latin Historians that lived in Popular times would be diligently examined To excite others of greater Abilities to an exacter Disquisition I presume to offer a Taste of some Doctrines of Aristotle which are usher'd in with a briefer Touch of the Holy Scriptures It is not probable that any sure direction of the beginning of Government can be found either in Plato Aristotle Cicero Polybius or in any other of the Heathen Authors who were ignorant of the manner of the Creation of the World we must not neglect the Scriptures and search in Philosophers for the grounds of Dominion and Property which are the main Principles of Government and Iustice. The first Government in the World was Monarchical in the Father of all Flesh. Adam being commanded to multiply and People the Earth and to subdue it and having Dominion given him over all Creatures was thereby the Monarch of the whole World none of his Posterity had any Right to possess any thing but by his Grant or Permission or by Succession from him the Earth saith the Psalmist hath he given to the Children of men which shews the Title comes from Fatherhood There never was any such thing as an Independent Multitude who at first had a natural Right to a Community this is but a Fiction or Fancy of too many in these dayes who please themselves in running after the Opinions of Philosophers and Poets to find out such an Original of Government as might promise them some title to Liberty to the great Scandal of Christianity and bringing in of Atheism since a natural freedom of mankind cannot be supposed without the denial of the Creation of Adam And yet this conceit of Original Freedom is the only Ground upon which not only the Heathen Philosophers but also the Authors of the Principles of the Civil Law and Grotius Selden Hobs Ashâ—…am and others raise and build their Doctrines of Government and of the severâ—… sorts or kinds as they call them of Common-wealths Adam was the Father King and Lord over his Family a Son a Subject and a Servant or a Slave were one and the same thing at first the Father had power to dispose â—… sell his Children or Servants whence we find that at the first reckoning up of Goods iâ—… Scripture the Man-servant and the Maid-servant are numbred among the Possessions and Substance of the Owner as other Goods worâ—… As for the names of Subject Slave and Tyrant they are not found in Scripture but what we now call a Subject or a Slave is then named no other than a Servant I cannot learn that either the Hebrew Greek or Latin have any proper and Original Word for a Tyrant or a Slave it seems these are names of later invention and taken up in disgrace of Monarchical Government I cannot find any one place or Text in the Bible where any Power or Commission is given to a People either to govern themselves oâ—… to choose themselves Governours or to alter the manner of Government at their pleasure the Power of Government is settled and fixed by the Commandement of Honour thy Father if there were a higher Power than the Fatherly then this Commandement could not stand and be observed Whereas we read in Scripture of some Actions of the People in setting up of Kings further than to a naked Declaration by a part of the People of their Obedience such Actions could not amount since we find no Commission they have to bestow any Right a true representation of the People to be made is as impossible as for the whole People to Govern the names of an Aristocracy a Democracy a Commonweal a State or any other of like signification are not to be met either in the Law or Gospel That there is a ground in Nature for Monarchy Aristotle himself affirmeth saying the first Kings were Fathers of Families as for any ground of any other Form of Government there hath been none yet alleged but a supposed natural Freedom of Mankind the Proof whereof I find none do undertake but only beg it to be granted We find the Government of Gods own People varied under the several Titles of Patriarchs Captains Iudges and Kings but in all these the Supreme Power rested still in one Person onely We no where find any Supreme Power given to the People or to a Multitude in Scripture or ever exercised by them The People were never the Lords â—…nointed nor called Gods nor Crowned nor â—…d the Title of Nursing-Fathers Gen. 35. 11. The Supreme Power being an indivisible Beam of Majesty cannot be divided among or settled upon a Multitude God would have it fixed in one Person not sometimes in one part of the People and sometimes in another and sometimes and that for the most part no where as when the Assembly is dissolved it must rest in the Air or in the walls of the Chamber when they were Assembled If there were any thing like a Popular Government among Gods People it was about the time of the Judges when there was no King in Israel for they had then some small Show of Government such as it was but it was so poor and beggarly that the Scripture brands it with this note that every man did what was right in his own eyes because there was no King in Israel it is not said because there was no Government but because there was no King it seems no Government but the Government of a King in the judgment of the Scriptures could restrain men from doing what they listed where every man doth what he pleaseth it may be truly said there is no Government for the end of Government is that every man should not do what he pleased or be his own Iudge in his own case for the Scripture to say theâ—… was no King is to say there was no Form oâ—…
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
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners aâ—… Bailiffs for concealing of Felonies shall make grievoâ—… Fines at the Kings pleasure Chap. 13. Ordains That such as be found culpablâ—… of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoâ—…er that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he thâ—… shall take Reward for deliverance of such shall be at thâ—… Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall maâ—… Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they takâ—… shall be Grievously punished at the Kings pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to Treat upon Debates between Us and certain Great Men it was accorded that in our next Parliament provision shall be made by Us and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from Religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Underwoods and Bushes in High-wayes murder be done the Lord shall make Fine at the Kings pleasure 28 Edw. 1. If a Gold-smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by Ransome at the Kings pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the gift of any Subsidy to which the King answers He would conferr with the Lords and do what should be best according to their Adâ—…ice and the last day of Parliament He gave this Anâ—…er That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of then Petitions or knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any wayes change the Good Customs and Usages Made and Used of Antient Times 5 Hen. 4. c. 6. Whereas one Savage did Beat and maime one Richard Chedder Esquire Menial Servanâ—… to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTESTAS PRINCIPIS NON EST INCLUSA LEGIBUS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. we read of a Restitution iâ—… Bloud and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regalty to grant or deny such of their Petitions as pleaseth Himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King oâ—… Sovereign Lord calling to His remembrance the duty of Allegiance of His Subjects of this His Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in His Wars for the Defence of Him and the Land against every Rebellion Power and Might reared against Him and with Him to enter and abide in Service in Battel if Case so require and that for the same Service what fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by his Commandement within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same Year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against His Rebels and Enemies for the Subduing and Repressing of them and their malitious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Commonwealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen and that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He â—…ished not the making of many Laws since the more we make the less Liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edw. Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Io. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of the Commons which being received by the King part He received part He put out and part he ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been alwayes acknowledged for Laws and Statutes We have amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14 Hen. 3. which is nothing but a Letter of the King to Gerard Son of
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
That there is no Form of Government but Monarchy only 2 That there is no Monarchy but Paternal 3. That there is no Paternal Monarchy but Absolute or Arbitrary 4. That there is no such thing as an Aristocratie or Democratie 5. That there is no such Form of Government as a Tyranny 6. That the People are not born Free by Nature DIRECTIONS FOR Obedience to Government IN Dangerous or Doubtful Times ALL those who so eagerly strive for an original Power to be in the People do with one Consent acknowledge that originally the Supreme Power was in the Fatherhood and that the first Kings were Fathers of Families This is not only evident and affirmed by Aristotle but yielded unto by Grotius Mr. Selden Mr. Hobbs Mr. Ascam and all others of that Party not one excepted that I know of Now for those that confess an original Subjection in Children to be governed by their Parents to dream of an original Freedom in Mankind is to contradict themselves and to make Subjects to be Free and Kings to be Limited to imagine such Pactions and Contracts between Kings and People as cannot be proved ever to have been made or can ever be described or fancied how it is possible for such Contracts ever to have been is a boldness to be wondred at Mr. Selden confesseth that Adam by donation from God was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children And by Donation or Assignation or some kind of Concession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of Private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City It is confessed that in the Infancy of the World the Paternal Government was Monarchical but when the World was replenished with multitude of people then the Paternal Government ceased and was lost and an Elective kind of Government by the People was brought into the World To this it may be answered That the paternal Power cannot be lost it may either be transferr'd or usurped but never lost or ceaseth God who is the giver of Power may transferr it from the Father to some other he gave to Saul a Fatherly power over his Father Kish God also hath given to the Father a Right or Liberty to alien his Power over his Children to any other whence we find the Sale and gift of Children to have been much in Use in the beginning of the World when men had their Servants for a possession and an Inheritance as well as other Goods whereupon we find the power of Castrating and making Eunuchs much in Use in old times As the power of the Father may be lawfully transferr'd or aliened so it may be unjustly usurped And in Usurpation the Title of an Usurper is before and better than the Title of any other than of him that had a former Right for he hath a possession by the permissive Will of God which permission how long it may endure no man ordinarily knows Every man is to preserve his own Life for the Service of God and of his King or Father and is so far to obey an Usurper as may tend not only to the preservation of his King and Father but sometimes even to the preservation of the Usurper himself when probably he may thereby be reserved to the Correction or Mercy of his true Superiour though by Humane Laws a long Prescription may take away Right yet Divine Right never dies nor can be lost or taken away Every man that is born is so far from being Free-born that by his very Birth he becomes a Subject to him that begets him under which Subjection he is always to live unless by immediate Appointment from God or by the Grant or Death of his Father he become possessed of that power to which he was subject The Right of Fatherly Government was ordained by God for the preservation of Mankind if it be usurped the Usurper may be so far obeyed as may tend to the preservation of the Subjects who may thereby be enabled to perform their Duty to their true and right Sovereign when time shall serve in such Cases to obey an Usurper is properly to obey the first and right Governour who must be presumed to desire the Safety of his Subjects the Command of an Usurper is not to be obeyed in any thing tending to the destruction of the Person of the Governour whose Being in the first place is to be looked after It hath been said that there have been so many Usurpations by Conquest in all Kingdoms that all Kings are Usurpers or the Heirs or Successors of Usurpers and therefore any Usurper if he can but get the possession of a Kingdom hath as good a Title as any other Answer The first Usurper hath the best Title being as was said in possession by the Permission of God and where an Usurper hath continued so long that the knowledge of the right Heir be lost by all the Subjects in such a case an Usurper in possession is to be taken and reputed by such Subjects for the true Heir and is to be obeyed by them as their Father As no man hath an infallible Certitude but onely a moral Knowledge which is no other than a probable perswasion grounded upon a peaceable possession which is a warrant for subjection to Parents and Governours for we may not say because Children have no infallible or necessary certainty who are their true Parents that therefore they need not obey because they are uncertain it is sufficient and as much as Humane Nature is capable of for Children to rely upon a credible perswasion for otherwise the Commandement of Honour thy Father would be a vain Commandment and not possible to be observed By Humane positive Laws a Possession time out of mind takes away or barrs a former Right to avoid a general Mischief of bringing all Right into a disputation not decideable by proof and consequently to the overthrow of all Civil Government in Grants Gifts and Contracts between man and man But in Grants and Gifts that have their original from God or Nature as the Power of the Father hath no Inferiour power of man can limit nor make any Law of Prescription against them upon this ground is built that common Maxim that Nullum tempus occurrit regi No time bars a King All Power on Earth is either derived or usurped from the Fatherly power there being no other original to be found of any Power whatsoever for if there should be granted two sorts of power without any subordination of one to the other they would be in perpetual strife which should be Supreme for two Supremes cannot agree if the Fatherly power be supreme then the power of the People must be subordinate and depend on it if the power of the People be
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
Poor only for so the Opposition â—…eth but then Aristotle saw his Democratie wouâ—… prove to be no Transgression but a perfect Politie 〈◊〉 his Oligarchy would not be for the Benefit of a few and those the best men for they cannot be the best men that seek onely their private Profit In this Chapter the mind of Aristotle about the several kinds of Government is clearliest delivered as being the foundation of all his Books of Politiques it is the more necessary to make a curious Observation of these his Doctrines In the first place he acknowledgeth the Government of one man or of a Monarchy and that is a perfect Form of Government Concerning Monarchy Aristotle teacheth us the beginning of it for saith he the first Society made of many Houses is a Colony which seems most naturally to be a Colony of Families or Foster-bretheren of Children and Childrens children And therefore at the beginning Cities were and now Nations under the Government of Kings the Eldest in every house is King and so for Kindred sake it is in Colonies Thus he deduced the Original of Government from the Power of the Fatherhood not from the Election of the People This it seems he learnt of his Master Plato who in his third Book of Laws affirms that the true and first Reason of Authority is that the Father and Mother and simply those that beget and ingender do command and rule over all their Children Aristotle also tells us from Homer that every man gives Laws to his Wife and Children In the fourth Book of his Politiques cap. 2. he gives to Monarchy the Title of the first and divinest sort of Government defining Tyranny to be a Transgression from the first and divinest Again Aristotle in the eighth Book of his Ethicks in the 12 Chapter saith That of the right Kinds of Government a Monarchy was the best and a popular Estate the worst Lastly in the third Book of his Politiques and the sixteenth Chapter concerning Monarchy he saith that A perfect Kingdom is that wherein the King rules all things according to his own Will for he that is called a King according to the Law makes no kind of Government Secondly he saith there is a Government of a few men but doth not tell us how many those few men may or must be only he saith they must be more than one man but how many that he leaves uncertain This perfect Government of a few any man would think Aristotle should have called an Oligarchy for that this word properly signifies so much but in stead of the Government of a few Aristotle gives it a quite other name and terms it an Aristocraty which signifies the Power of the best the reason why it is called an Aristocraty saith Aristotle is for that there the best men govern or because that is not always true for that it is for the best of the governed by this latter reason any Government and most especially a Monarchy may be called an Aristocraty because the End of Monarchy is for the best of the governed as well as the End of an Aristocraty so that of these two Reasons for calling the Government of a few an Aristocratie the first is seldome true and the latter is never sufficient to frame a distinction This Aristotle himself confesseth in his next Chapter saying that the Causes aforesaid do not make a Difference and that it is Poverty and Riches and not Few and Many that makes the Difference between an Oligarchy and Democraty there must be an Oligarchy where rich men rule whether they be few or many and wheresoever the Poor have the Sovereignty there must be a Democraty Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a Democratâ—… these two must likewise make the Difference between an Aristocraty and a Polity for the only Difference Aristotle makes between them is in their Ends and not in their Matter for the same few men may make an Aristocraty if their End be the Common Good and they may be an Oligarchy if they aim only at their private Benefit Thus is Aristotle distracted and perplexed how to distinguish his Aristocratie whether by the smallness of their Number or by the Greatness of their Estates Nay if we look into Aristotles Rhetoriques we shall find a new Conceit not only about Aristocratie but also about the sorts of Government for whereas he has taught us in his Politiques that there be three sorts of right or perfect Government and as many sorts of wrong which he calls Transgressions or Corruptions he comes in his Rhetoriques and teacheth us that there be four sorts of Government 1 A Democratie when Magistracies are distributed by Lots 2. In an Oligarchy by their Wealth 3. In an Aristocratie by their Instructions in the Law It is necessary for these to appear the best from whence they have their name 4. A Monarchy according to the name wherein one iâ—… Lord over all Here we see Aristocratie is not distinguished by smallness of Number nor by Riches but by Skill in the Laws for he saith those that are instructed in the Laws govern in an Aristocratie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Point 〈◊〉 dreamt of in his Politiques by which it seems Aristotle himself did not know well what he would haâ—… to be an Aristocratie And as he cannot teach us truly what an Aristocratie is so he is to seek to tells us where any Aristocratie ever was even himself seems to doubt whether there be any such Form of Government where he saith in his third Book of Politiques cap. 5. It is impossible for any Mechanical man to be a Citizen in an Aristocratie if there be any such Government as they call Aristocratical His if makes him seem to doubt of it yet I find him affirm that the Commonwealth of Carthage was Aristocratical he doth not say it was an Aristocratie for he confesseth it had many of the Transgressions which other Commonwealths had and did incline either to a Democratie or an Oligarchy The Government of Carthage did transgress from an Aristocratie to an Oligarchy And he concludes that if by Misfortune there should happen any Discord among the Carthaginians themselves there would be no Medicine by Law found out to give it Rest wherein me-thinks Aristotle was a kind of Prophet for the Discords between the Citizens of Carthage were the main Cause that Hannibal lost not only Italy but Carthage it self By these few Collections we may find how uncertain Aristotle is in determining what an Aristocratie is or where or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of
to bind he adds of Many because there is as he grants scarce any Law to be found common to all Nations besides the Law of Nature which also is wont to be called the Law of Nations being common to all Nations Nay as he confesseth often that is the Law in one part of the World which in another part of the World is not the Law of Nations By these Sentences it seems Grotius can scarce tell what to make to be the Law of Nations or where to find it Whereas he makes the Law of Nations to have a binding Power from the Will of men it must be remembred that it is not sufficient for men to have a Will to bind but it is necessary also to have a Power to bind Though several Nations have one and the same Law For instance Let it be granted that Theft is punished by Death in many Countreys yet this doth not make it to be a Law of Nations because each Nation hath it but as a Natural or Civil Law of their own Countrey and though it have a binding Power from the Will of many Nations yet because each Nation hath but a Will and Power to bind themselves and may without prejudice consent or consulting of any Neighbour-Nation Alter this Law if they find Cause it cannot properly be called the Law of Nations That which is the foundation of the Law of Nations is to have it concern such things as belong to the mutual Society of Nations among themselves as Grotius confesseth and not of such things as have no further relation than to the particular Benefit of each Kingdom For as private men must neglect their own Profit for the Good of their Countrey so particular Nations must sometimes remit part of their Benefit for the Good of many Nations True it is that in particular Kingdomes and Common-wealths there be Civil and National Laws and also Customs that obtain the Force of Laws But yet such Laws are ordained by some supreme Power and the Customs are examined judged and allowed by the same supreme Power Where there is no Supreme Power that extends over all or many Nations but only God himself there can be no Laws made to bind Nations but such as are made by God himself we cannot find that God made any Laws to bind Nations but only the Moral Law as for the Judicial Law though it were ordained by God yet it was not the Law of Nations but of one Nation only and fitted to that Commonwealth If any think that the Customs wherein many Nations do consent may be called the Law of Nations as well as the Customs of any one Nation may be esteemed for national Laws They are to consider that it is not the being of a Custom that makes it lawful for then all Customs even evil Customs would be lawful but it is the Approbation of the supreme Power that gives a Legality to the Custom where there is no Supreme Power over many Nations their Customs cannot be made legal The Doctrine of Grotius is that God immediately after the Creation did bestow upon Mankind in general a Right over things of inferiour Nature From whence it came to pass that presently every man might snatch what he would for his own Use and spend what he could and such an Universal Right was then in stead of Property for what every one so snatched another could not take from him but by Injury How repugnant this Assertion of Grotius is to the Truth of Holy Scripture Mr. Selden teacheth us in his Mare Clausum saying that Adam by Donation from God Gen. 1. 28. was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children and by Donation and Assignation or some kind of Cession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City This Determination of Mr. Selden's being consonant to the History of the Bible and to natural Reason doth contradict the Doctrine of Grotius I cannot conceive why Mr. Selden should afterwards affirm that neither the Law of Nature nor the Divine Law do cammand or forbid either Communion of all things or private Dominion but permitteth both As for the general Community between Noah and his Sons which Mr. Selden will have to be granted to them Gen. 9. 2. the Text doth not warrant it for although the Sons are there mentioned with Noah in the Blessing yet it may best be understood with a Subordination or a Benediction in Succession the Blessing might truly be fulfilled if the Sons either under or after their Father enjoyed a Private Dominion it is not probable that the private Dominion which God gave to Adam and by his Donation Assignation or Cession to his Children was abrogated and a Community of all things instituted between Noah and his Sons at the time of the Flood Noah was left the sole heir of the World why should it be thought that God would dis-inherit him of his Birth-right and make him of all the men in the World the only Tenant in Common with his Children If the Blessing given to Adam Gen. 1. 28. be compared to that given to Noah and his Sons Gen. 9. 2. there will be found a considerable Difference between those two Texts In the Benediction of Adam we find expressed a subduing of the Earth and a Dominion over the Creatures neither of which are expressed in the Blessing of Noah nor the Earth there once named it is only said The Fear of you shall be upon the Creatures and into your hands are they delivered then immediately it follows Every moving thing shall be meat for you as the green Herb The first Blessing gave Adam Dominion over the Earth and all Creatures the latter allows Noah Liberty to use the living Creatures for Food here is no Alteration or diminishing of his Title to a Propriety of all things but an Enlargement onely of his Commons But whether with Grotius Community came in at the Creation or with Mr. Selden at the Flood they both agree it did not long continue Sed veri non est simile hujusmodi communionem diu obtinuisse is the confession of Mr. Selden It seems strange that Grotius should maintain that Community of all things should be by the Law of Nature of which God is the Author and yet such Community should not be able to continue Doth it not derogate from the Providence of God Almighty to ordain a Community which could not continue or doth it make the Act of our Fore-fathers in Abrogating the natural Law of Community by introducing that of Propriety to be a Sin of a high presumption The prime Duties of the Second Table are conversant about the Right of Propriety but if Propriety be brought in
of power to which the other parts are subsequent and subservient if Gubernative be subservient to Legislative how can Gubernative power be supream Now let us examime the Authors Limited Monarch by these his own rules he tells us that in a moderated limited stinted conditionate legal or allayed Monarchy for all these terms he hath for it the supream power must be restrained by some Law according to which this power was given and by direction of which this power must act when in a line before he said that the Monarchs power must not be limited by any power above his yet here he will have his supream power restrained not limited and yet restrained is not a restraint a limitation and if restrained how is it supream and if restrained by some Law is not the power of that Law and of them that made that Law above his supream power and if by the direction of such Law onely he must govern where is the Legislative power which is the chief of supream power When the Law must rule and govern the Monarch and not the Monarch the Law he hath at the most but a Gubernative or Executive power If his authority transcends its bounds if it command beyond the law and the Subject is not bound legally to subjection in such cases and if the utmost extent of the law of the land be the measure of the Limited Monarchs power and Subjects duty where shall we find the supream power that Culmen or apex potestatis that prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which our Author saith must be in every Monarch The word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies principality and power doth also signifie principium beginning which doth teach us that by the word Prince or principality the principium or beginning of Government is meant this if it be given to the Law it robs the Monarch and makes the Law the primum mobile and so that which is but the instrument or servant to the Monarch becomes the master Thus much of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The other word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solus one alone the Monarch must not only have the supream power unlimited but he must have it alone without any companions Our Author teacheth us He is no Monarch if the Supream power be not in one And again he saith if you put the apex potestatis or supream power in the whole body or a part of it you destroy the being of Monarchy Now let us see if his mixed Monarchy be framed according to these his own principles First he saith in a mixed Monarchy the soveraign power must be originally in all three Estates And again his words are The three Estates are all sharers in the supream power the primity of share in the supream power is in One. Here we find that he that told us the supream power must be in one will now allow his mixed Monarch but one share only of the supream power and gives other shares to the Estates thus he destroys the being of Monarchy by putting the supream power or culmen potestatis or a part of it in the whole body or a part thereof and yet formerly he confesseth that the power of Magistracy cannot well be divided for it is one simple thing or indivisable beam of divine perfection but he can make this indivisable beam to be divisable into three shares I have done with the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solus alone I have dwelt the longer upon this definition of Monarchy because the apprehending of it out of the Authors own grounds quite overthrows both his Monarch Limited by Law and his Monarch Mixed with the States For to Govern is to give a law to others and not to have a Law given to Govern and limit him that Governs And to govern alone is not to have sharers or companions mixed with the Governor Thus the two words of which Monarchy is compounded contradict the two sorts of Monarchy which he pleads for and by consequence his whole Treatise for these two sorts of limited and mixed Monarchy take up in a manner his whole Book I will now touch some few particular passages in the Treatise Our Author first confesseth it is Gods express ordinance there should be Government and he proves it by Gen. 3. 16. where God ordained Adam to rule over his Wife and her desires were to be subject to his and as hers so all theirs that should come of her Here we have the original grant of Government and the fountain of all power placed in the Father of all mankind accordingly we finde the law for obedience to government given in the terms of honour thy Father not only the constitution of power in general but the limitation of it to one kind that is to Monarchy or the government of one alone and the determination of it to the individual person and line of Adam are all three ordinances of God Neither Eve nor her Children could either limit Adams power or joyn others with him in the government and what was given unto Adam was given in his person to his posterity This paternal power continued monarchical to the Floud and after the Floud to the confusion of Babel when Kingdoms were first erected planted or scattered over the face of the world we finde Gen. 10. 11. it was done by Colonies of whole families over which the prime Fathers had supream power and were Kings who were all the sons or grand-children of Noah from whom they derived a fatherly and regal power over their families Now if this supream power was setled and founded by God himself in the fatherhood how is it possible for the people to have any right or title to alter and dispose of it otherwise what commission can they shew that gives them power either of limitation or mixture It was Gods ordinance that Supremacy should be unlimited in Adam and as large as all the acts of his will and as in him so in all others that have supream power as appears by the judgement and speech of the people to Ioshuah when he was supream Governour these are their words to him All that thou commandest us we will do whosoever he be that doth rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death we may not say that these were evil Councellours or flattering Courtiers of Ioshuah or that he himself was a Tyrant for having such arbitrary power Our Author and all those who affirm that power is conveyed to persons by publick consent are forced to confess that it is the fatherly power that first inables a people to make such conveyance so that admitting as they hold that our Ancestors did at first convey power yet the reason why we now living do submit to such power is for that our Fore-fathers every one for himself his family and posterity had a power of resigning up
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke