Right ceased before that of the Legatees could begin So that it seems to me at present that the power of bequeathing either the persons of men or goods was but a consequence of an absolute Propriety in things which arises from Compact in a Common-wealth as I shall hereafter prove Therefore out of this State a Will cannot bind the persons of the Children or Servants so bequeathed And for this cause we find Abraham Gen. 24. v. 2 3. binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt because they doubted whether they could oblige them to do it by their Testament But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature but proceeds purely from a continued Custom of the Kingdom or Civil Law thereof else why had not Henry VIII or Edward VI power to limit or bequeath the Crown to whom they pleased as well as William the Conquerour And to look into other Countries what now renders Women uncapable of succeeding to the Crown of France yet capable of inheriting that of England Spain and divers other Kingdoms of Europe but the Customs or particular Constitutions of the Estates of these Kingdoms which no Will or Testament can alter What else hinders the Grand Seignior that he cannot disinherit his eldest Son if he survive him Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. but the Custom of the Ottoman Empire And what is this Custom but as the Author himself acknowledges in the case of England the Commom Law of the Country Freeholders Inquest p. 62. which is said to be Common Custom Thus to protect the Customs which the Vulgar shall chuse is to protect the Common Laws of England So that it was the Will of the People and not the Prince alone that made this a Law for if this Law of the Succession of the Crown depended upon his Will then if he be an absolute Monarch that when sufficiently declared being the onely Law might alter it when he would 〈◊〉 and so he might bequeath the Crown to whom he pleased But every one that understands the present Laws of Descent of the Crown of France or the manner of Succession in the Ottoman Empire knows that i◠the King of France or Grand Seignior as absolute as they are should bequeath their Kingdoms to any other than the right Heir this Will would signifie nothing and no body would obey this Successor of their appointing And if any man think to evade this by saying That the Succession of the Crown is a Fundamental Law of the Government and that a Prince may be Absolute and yet not have a power to alter that as he may every thing else I would ask him who made this a Fundamental Law at first whether the King then in being or the King with the Consent of the People upon the first institution of the Government If the King made it alone since he is supposed to have made it at first for the good of the People of which he is the Judge and is supposed in Law never to die why then is not he as competent a Judge of what is good for the People now as a King that lived a thousand years agone was what was fit for the People then and consequently hath as much Right of altering the Succession for the Peoples benefit as he that established it at first since every Law may be altered by the same Power that made it But if he say it is a Fundamental Law because long custom hath made it so then it is apparent such a Law hath its force from the Consent of the People at first or since Custom being nothing else Or lastly if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution then it can neither be altered without their Consent and so consequently no Princes Testament is good as to that farther than the People or their Representatives give their assent thereunto And the same Law holds in the Father of a Family since this Author will have no difference between him and a King but onely secundum Magis Minus If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament let us return again to that of Descent and see if that will prove a better foundation to build this natural Right of Princes upon For my part I think that it is not onely impossible to know who was Adam's right Heir of his Fatherly Power now after five or six thousand years but might likewise be as uncertain as soon as ever the breath was out of his body For supposing Eve survived him why should not her natural Right of governing the Children which she her self brought forth and which out of Wedlock would have belonged to her revive and take place before any Right of her eldest Son to whom upon this ground she must have become subject if she would continue part of the Family or natural Commonwealth which she could not avoid there being none but her Children or Grandchildren in the world and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth So that for ought I see the Mother of the Family hath the best Right to the Government in the state of Nature after the Husbands death upon the Authors own grounds For if the Commandment of Honour thy Father and thy Mother signifie more than bare Reverence and Respect as appears by the Apostles Exposition of this Commandment Ephes 6. v. 1. Children obey your Parents in the Lord which he makes the same with Honour thy Father and thy Mother then this Obedience which was due to the Father belongs likewise to her when his power ceases But passing over this difficulty and allowing this Fatherly Authority to descend to Adam's next Heir it might have been a great Question who this next Heir was supposing Cain to have been disinherited for the murder of Abel and to have gone away and built a City and set up a Government by himself Yet let us suppose Abel left a Son behind him who survived Adam his Grandfather which he might very well do and yet the Scripture be silent in it since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews and therefore says little of his other Children but by the by I would ask the Author or any man else who was Adam's Heir after his death whether this Son of Abel or Seth whom we will suppose likewise to
Rump not onely in things lawful and necessary but indifferent ones too p. 74. in which consists all Obedience since all the Authority even of lawful Powers extends onely to indifferent things all other actions being sufficiently setled by the Law of God or Nature But the Author perceiving this difficulty endeavours to extricate himself by saying p. 75. That though granting in things indifferent an Vsurper may be obeyed as well as a lawful Prince yet that it does not therefore follow that there is as much Obedience due to an usurped Power as a lawful but that herein lieth a main difference between them that some things are indifferent for a lawful Superiour which are not indifferent but unlawful for an Vsurper to enjoyn Vsurpation is the resisting and taking away the Power from him who had such a former Right to govern the Vsurper as cannot lawfully be taken away So that it cannot be just for an Vsurper to take advantage of his own unlawful act or create himself a Title by continuation of his own Injustice And if it câ—… never be an act indifferent for the Vsurper to disobey his lawful Soveraign much less can it be indifferent for him to command another to do that to which he hath no Right himself It is onely then a matter indifferent for an Vsurper to command another when the actions enjoyned are such as the lawful Superiour is commanded by the Law of God to provide for the benefit of his Subjects by the same or the like restrictions of such indifferent things and it is to be presumed if he had not been hindered would have commanded the same or the like Laws Let us now see how far this distinction will serve his turn I should in the first place be glad to know what he means by these words lawful Soveraign or Superiour If he means such a Superiour who was particularly appointed by God God never since David and Solomon expresly appointed a King in any Nation Secondly If one who was elected by the People or whose possession is confirmed by their acknowledgement publickly declared and so passed into a Law this were to set up what he so much abhors an elective King who must claim by Law If by lawful he means such a one who upon a bare possession hath by his own power alone made a Law declaring himself to be the lawful Superiour this Law is unlawful for him to make or for the Subjects to obey And if it be such a one to whom possession gave a Right as he will have it being in possession by the permissive Will of God though at first an Usurper Why hath not this second Usurper as good a Title to take the Government from the former as he or his Ancestors had to take it from him that had it before But indeed Occupancy onely confers a Right in the state of Nature to such things as are meerly necessary for a mans subsistence but Government is an Office of Trust and Power and which the Usurper might very well have lived without And why should a bare possession of this though of three or four hundred years confer a better Right than that of a year or two for this last possession seems according to the Authors principles to be the better Title For he says a little before p. 69. That the first Usurper hath the best Title being now in by the permissive Will of God And if so may not the last Usurper use the like Argument since he tells us p. 67. That this last Vsurper hath a better Title than any other except him who 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 Now which is best a Right which once a man onely had by the permissive Will of God but is now ended God having otherwise declared himself or a present possession which he hath by the same permissive Will which when it will have an end no body knows But if he answers as he does p. 69. That this Vsurper is onely then to be obeyed and reputed by the Subjects for the true Heir where he hath continued so long that the knowledge of the right Heir is lost by all the Subjects for no man hath an infallible certainty but only a moral knowledge which is no other than a probable Perswasion grounded on a peaceable Possession which is a Warrant for Subjection to Parents and Governours I know not what the Author means here by true Heir and as little when he will have this knowledge to be lost If he means by right Heir the Son or descendant of the first Usurper I should be glad to know how he that had no Right himself could confer a Title upon another or by what Law his Son had a Right to succeed him If by the consent of the People this were to grant that which he before denies as at all necessary to any Princes Title If because he or his Descendants have an uninterrupted long possession the difficulty still remains how this long possession can confer a Right for the Reasons already given But if it be said that the Heir of this Usurper hath a better Right than any body else as having possession and that it were destructive to the Peace of the Commonwealth to put him out after so long an enjoyment of the Crown it 's true this were a good Argument not to make any alteration in the Government as it is setled but they must likewise consider that the same may be as well made use of by the last Usurper and his Party since he having now the possession in as full a manner as he that had it before cannot perhaps be put out of it without involving the Nation in a tedious bloudy War It is likewise as uncertain when the knowledge of this right Heir of the first Usurper shall be said to be lost by all the Subjects If he means personal knowledge when all the people that could remember the Prince that was turned out are dead and none left alive that certainly know who is his next Heir the Right of this true Heir will quickly be lost in one Generation but if he means a traditional moral knowledge as he seems to do then this can never be lost as long as there is any Authentick or Historical Tradition of the Descent of this Heir which Tradition may be continued for a thousand years together during all which time the Princes that succeed being Heirs of such Usurpers can never require a perfect Right to their Crowns the Author holding it an undoubted truth p. 60. That though Prescription may take away a common Right yet divine Right or that to a Crown never dies or can be taken away thereby And upon this ground the common Maxime is built Nullum tempus occurrit Regi So that as long as this kind of moral knowledge of this right Heir can be had from any Authentick History
Sons reign we find the Procurators of the Nobility and People of England declare in the Council of Lyons quod universitas Regni nunquam i.e. Patres nobilium vel ipsi never consented or would ever consent to the tribute unjustly extorted by the Court of Rome At which protestation his Holyness was so confounded that our Author tells us he never lift up his Eyes or had a word to reply And every Monarch hath as absolute a Propriety in his Kingdom as Noah had in the World as our Author supposes I know no reason why the King may not bequeath his Crown to which of his Sons he pleases no matter whether lawfully begot or not since Princes are above all Terms or positive Laws or he may divide it among them as Noah did the World to his three Sons So that upon these grounds the Testament of Henry VIII whereby he disinherited the Line of Scotland and that of Edward VI. whereby he excluded his Sisters from the Crown should have been valid but the Loyal Subjects of England beleived that neither of those Kings could disinherit the right Heir of the Crown by their Testaments alone but acknowledge them in the persons of Queen Mary and King James notwithstanding those pretended Wills I have been the larger upon this Subject that men that do not much consider nor are versed in these matters may see the absurd wicked consequences of this notion of an absolute Propriety and Dominion to be inseperable from Monarchy So that I doubt not but even those very men who love a smatch of arbitrary Government because it best suits with their tempers or interests cannot away with it unmixt when it comes to exert all its Prerogatives Thus some men think Musk and Ambergreece mixt whith other Ingredients makes an agreeable Perfume which if held to their noses in the Cod or whole Lump they are so far from thinking a good smell that they loath it I shall not affirm with Grotius That the Empire which is exercised by Kings doth not cease to be the Empire of the People For I suppose the People have passed over all their present interest in it to the Prince and his heirs and as long as that line lasts they have nothing to do with it and consequently cannot set up another Family over them and so on the other side the King hath no such absolute Property as that he can alter the succession otherwise than the fundamental laws of the Monarchy did first appoint which were made by consent of all the Estates and without which they cannot be altered nor is there any fear of a contradiction as the Author supposes That the Succession must either hinder the right of Alienation which is in the People or the alienation must destroy the right of succession which must attend upon elected Kings For we own no right of alienation in the People as long as there is a lawful Heir remaining and succeeding in his right to whom the Crown was first legally setled nor yet does therefore the succession diminish the right which the People had at first but that it may arise and take place again if the King should die without known heirs Having done with his observations upon Grotius Chap. VI. I am now come to his Anarchy of a limited or mixt Monarchy in which though I shall not undertake to maintain all which our Author if whom he writes against hath laid down in this treatise since many things in that it treats were written according to Irene's notions during the late Warrs yet I hope I may be able to shew that this Doctrine of a limited Monarchy is not but of Yesterâ—lay as our Author will have it But that all the learned men in the laws and constitutions of these Northern Kingdoms have held it to be no such damnable Doctrine but that the contrary would introduce â—ll Tyranny and Arbitrary Government among them which is at this day practiced in the Eastern parts of the world But it seems the Author allows 260. that there may be a mixt Government but not a mixt Monarchy because the word Monarchy is compounded of two Greek words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one alone and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Govern or Rule and therefore Monarchy being the Government of one man alone cannot admit of any limitation or mixture But what if one should say that all this is nothing but wrangling about words since why may not he be called a Monarch who hath the Supreme though not the only Power in a Common-wealth if the custom of that Country allow it him though his Power be limited or mixt as well as for the Romanes to call their Monarch but Imperator or General or for the Florentines or Russians to call their Monarch great Duke Since it is not the names but the exercise of the power that creates the difference Nor is it any more a Bull or contradiction than to call that which I now write out of an Inkhorn though perhaps it is made either of Glass or Mettal So the first Monarch being absolute the Title of Monarch may now be by eustom well enough applyed to those that are not absolutely so but to pass by such Grammar niceties I shall endeavour to vindicate the writer of this Treatise of Monarchy whom the Author calls Mr. Hunton from giveing an Idea of a Government which is nothing but meer Anarchy and Fiction and that there hath been and yet is such a kind of Government as a limited Kingship which if the Author is so dogged as he will not allow it the name of a Monarchy we cannot help it let his Friends give it a more proper name if they please As for what he will prove out of that Authors words that every Monarch even his limited Monarch must have the Supreme Power of the state in himself so that his Power must no way be limitted by any power above his For then he were no Monarch but a subordinate Magistrate is true yet I do not see that the Author contradicts himself as the observatour will have him when he tells us in the same Page That in a moderate or limited Monarchy the supreme power must be restrained by some law according to which this power was given and by direction of which this power must act So that he will have his Supreme Power not limited and yet restrained Is not a restraint a limitation and if restrained how is it Supreme and if restrained by some law is not the Power of that law and of them that made it above his Supreme Power and if by the direction of such law only he must Govern where is the Legislative Power which is the cheif of supreme Powers when the law must rule and govern the Monarch and not the Monarch the law he hath then at best but a gubernative or executive Power and so proceeds to quote this Authors own words at large if his Authority transcends his bounds and if it command
in the Assembly of Estates To which the answer is obvious that though it is true the Monarchs passing of Laws whether in the great Council or in his privy Council be but a matter of form if the Legislative power remain wholly in himself yet since even the forms and Circumstances in doing things are such essential things without which business cannot be done If therefore the people made it part of their original Contract with their Prince at first that he should make no laws but what should be of their proposing and drawing up and that he might refuse if he pleased the whole but should not alter any part of it This though in its self a matter of form yet being at first so agreed is indeed an original and fundamental constitution of the Government Therefore the Author is as much mistaken in his Divinity as his Law when Patriarcha P. 97. Resolves the question in the affirmative Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws That the Subject ought to break the laws if his King command him Where as as the Author hath put it nothing is more contrary to Law and Reason for so it would be no sin for Souldiers or others to give and take away mens Goods by force or turn them out of their houses if they could produce the Kings Commission for it and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal for though it was forged yet the forgery being known but to very few it was in respect of those who acted by vertue thereof all one as if it had been true and according to this Authors Divinity Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants since the King by his Commission commanding a man to serve him in the Wars he may not examine whether the War be just or unjust but must obey since he hath no authority to judge of the causes of War which if spoken of such Wars as a King hath a right to make is true but of all warin general nothing is more false as appears by the instance before given nor are the examples the Author there brings at all satisfactory as that not only in humane Laws but also in Divine a thing may be commanded contrary to law and yet obedience to such commands is necessary the sanctifying the Sabbath is a Divine law yet if a Master command his Servant not to go to Church upon a Sabbath day the best Divines teach us that the Servant must obey this Command though it may be sinful and unlawful in the Master because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding Where if the Author suppose as I do not that the Sunday which he improperly calls the Sabbath cannot be sanctified without going to Church or that going to Church on that day is an indispensible duty the Master commanding the contrary ought no more to be obeyed than if he should command his Servant to rob or steal for him but if going to Church be a thing indifferent or dispensible at some times then the Author puts a Fallacy upon his Readers arguing from the non-performance of a thing which is doubtful or only necessary secundum quid in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful Since it is sinful for any Subjects to obey the King 's private or personal Commands in things unlawful and contrary to known positive laws The laws only seting the bounds of Property in all Commonwealths so that though it be no sin in Turky or Muscovy for an Officer to go and setch any mans head by vertue of the Grand Seigniors Commission without any trial or accusation I suppose any man that valued his life would say it were murder for any person to do the same by the Kings bare Commission in England and yet there is nothing but the Laws and Customs of each Government that creates the difference Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law since there are some Laws which the King hath power to dispence with and others which he hath not and others which he may dispence with but yet only for the publick good in cases of extreme necessity But to affirm as the Author does without any qualification or restriction that it is a sin to disobey the Kings personal Commands in all cases however issued out favours of Mr. Hobs Divinity as well as Law nor does the Author himself when he hath thought better on 't Patriark P. 99. assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws and to defend the peoples rights as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right So it is true the King hath a power to pardon all Felonies and Manslaughters and perhaps Murders too yet supposing this power should be exerted but for one year towards all Malefactors whatsoever any man may easily imagin what such a Prerogative would produce So that the publick good of the Kingdom ought to be the rule of all such Commands and where that fails the right of commanding ceases Ib. 99. As for the instance of the Court of Chancery it is not a breach of the Kings Preogative but part of the Common Law of this Kingdom so no man that understands any thing of Law or Reason will affirm that it is a Court of that exorbitant power that it is limited by no rules or bounds either of Common or Statute Law or of the Laws of aequum and bonum or that every thing that a Chancellour who is keeper of the Kings Conscience decrees must be well and truly decreed since this were to set up an absolute Tyrany But I shall now proceed to examine the rest of the reasons the Author gives either in this Treatise or his Patriarcha against the possibility of a limited Monarchy He finds fault with Mr. H. P. 281. ' For asserting that a Monarch can have any limitation ab Externo and that the sole means of Soveraignty is consent and fundamental contract which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection upon which our Author inquires thus if the sole means of a limited Monarchy be the consent and fundamental contract of a Nation how is it that he saith a Monarch may be limited by after condescent is an after condescent all one with a fundamentnl contract or with an original and radical constitution why yet he tells us it is a secundary original constitution A secundary original that is a second first
is but like the advice and direction which the Kings Councel gives the King which no man says is a Law to the King Igrant this distinction provided the Author will likewise admit another that though the King is not obliged by Laws or to any Judges of them as to Superiors or as to the compulsory Power of them Yet in respect of God and his own Conscience he is still obliged to observe them and not to dispence with them in those cases which the Law does not give him a power so to do and since it is true that it is the rewards and punishments annext that give laws their Sanction therefore there are certain rewards which will naturally bless Princes that keep their Laws such as peace of Conscience Security the affections of their People c. and if I call the contrary effects to these natural punishments that are commonly the consequences of the breach of them I think I should not speak absurdly since the Author himself tells us P. 93. Albeit Kings who make the Laws are as King James there teacheth us above Laws yet will they rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King degenerates into a Tyrant so soon as he seems to rule it is there printed in the Copy according which is nonsence contrary to his Laws and certainly a Tyrant can never promise himself security either from his own Conscience or from Men but whereas he says the direction of the Law is only like the advice which the Kings Councel gives him which no man says is a Law to him is false for the Kings Councel should never advise him to do that which he cannot whith a safe Conscience perform but the Kings Conscience can never advise him to break those Laws that are the boundaries between his Prerogatives and the Peoples just Rights and therefore though it is true in some cases where the King sees the Law rigorous or doubtful he may mitigate or interpret the Execution thereof by his Judges to whom he hath made over that power in the intervalls of Parliament and though perhaps some particular Statutes may be his Authority be suspended for causes best known to himself and Council Yet this does not extend to Laws of publick concernment and for that I will appeal to the Conscience of any true Son of the Church of England whether he thinks for Example that the Proclamation for indulgence contrary to the Statute made against Conventicles were binding or no Neither is this that follows consistent with what the Author hath said before That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good will and for good Example or so far forth as the general Law of the safety of the Commonwealth doth naturally bind him For in such sort only positive Laws may may be said to bind the King not by being positive but as they are naturally the best and only means for the preservation of the Common-wealth So that if a King thinks any the firmest and most indispensible Laws that have been made suppose Magna Charta or the Statute de Tallagio non concedendo for example not to be for the safety of the Commonweal it is but his declaring that he will have them no longer observed and the work is done nor will this that follows help it though true that all Kings even Tyrants and Conquerors are bound to preserve the Lands Goods Liberties and lives of all their Subjects not by any Municipal Laws so much as the natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the publick Good of the Subjects All which is very well but if this Monarch thus succeeding in the place of the natural Father is the sole Judge of what things are necessary for the common good what if he have a mind to keep these Children for Children and subjects slaves are all one with this Authour as some unnatural Fathers do as cheap as they can or to make the most of them will let them enjoy no more but the scanty necessaries of life and will think fair water brown bread and wooden shooes sufficient for a Farmer and 300 l. or 400 l. per annum enough in Conscience for a Country Gentleman or desiring to be absolute and therefore to have a constant standing Army to raise mony with as some Monarchs do and being resolved that for the future all the just rights and priviledges of his Clergy Nobility and People shall signifie nothing will take all the over-plus of his Childrens Estates eaving them no more then a poor and miserable subsistence he may lawfully do what he will with his own and it is all his upon the first intimation of his pleasure by Edict or Proclamation But perhaps some honest Divine may start up and tell him he will be damned for thus abusing his power or breaking his Coronation Oath what What if this Father of his people shall laugh at him for a fool and think himself too cunning to believe any such thing or what if his Son or Successor be resolved not to run his head any more into the snare of a Coronation Oath but finding himself invested in all the absolute power of his Predecessour without any unjust act of his own since we know Princes seldome loose any thing they have once got will exercise it as he pleases for his own humour or glory and thinks himself not obliged in Conscience to restore any of those rights his Predecessor hath ursuped upon his People I know not what benefit this may be to the Prince but this I am sure of it would very little mend the Subjects condition to be told their former Monarch was damned or that this may follow him when they are now slaves nor is this a mere Chimera since a Neighbouring people over against us lost their liberties by much such a kind of proceeding And therefore this Authour hath found out a very fit interpretation of the Kings Coronation Oath Vide Iuramenta Regis quando coronatur old Stat. ed 1556. for whereas he used to Swear that he will cause equal and upright justice to be administred in all his judgments and to use discretion with mercy and truth according to his power and that the just Laws and customes quas vulgus elegerit I will not translate it shall chuse to be observed to the honour of God Yet our Author will have the King obliged to keep no laws but what he in his discretion Judges to be upright which is to make the Oath signifie just nothing as I have proved already wherein he abominably perverts the sense of this Oath for that which he puts first is really last And the words by which he Swears to observe the Laws and customes granted by King Edward and other his Predecessors are absolute and without
comitum omnium Sapientum Seniorum Populorum totius Regni And whoever will but examine the said Collection of Sr. Henry Spelman will find almost all the Ecclesiastical Constitutions confirmed if not made in the Wittena Gemote the Great Synode or Council So that what this Author says of the difference of the Laws and Customs of the several Kingdoms during the Heptarchy makes nothing against us as long as we can prove that in the main the Government of them all was alike in the three great Liberties of the Subjects viz. Trial by a Mans equals and absolute Propriety in Lands and Goods which the Kings could not justly take from them and a Right to joyne in the making of all Laws and raising Publick Taxes or Contributions for War So that without doubt these Wittena Gemotes or great Councils were Ordained for some Nobler and Higher purpose then either to give the King advice what Wars to make or what Laws to make or barely to Remonstrate their grievances as this and some other Modern Authors would have it for what King would call so great a Multitude those Antient Parliaments consisted of to be his Councellors Or would call together the whole Body of a Nation only to be made acquainted with their grievances which he might have known with greater ease to himself and less charge to the Subjects by having them found by the Grand Inquest in the County-Court And so to have been presented to him by the Earl or Alderman of each particular County whereas we find these great Councils imploy'd in businesses of a higher Nature such as the confirmation of the Kings Charters the Proposing of Laws the Election of Archbishops other great Officers So that the Higher any Man will look back the more large uncontroulable he will find the Power of this great Assembly Since before the Conquest and afterwards too we find them to have often Elected Kings when the Children of their last King were either Minors or supposed unfit to Govern So that whoever will take the pains to consult our Ancient Saxon and English Historians will find that there was never Anciently any Fundamental or unalterable Law of Succession nor was it fixed for any two Discents in a right Line from Father to Son without interruption until Henry the Third and then it lasted so but Four Generations reckoning him for the first And as for these particular Laws or Customs the Author mentions whether King Edgar or Alfred first Collected them as were also Corrected and Confirmed by both the Edwards to wit the Elder and the Confessor they still owed their Authority to the King Vi. Lambert de priscis Anglorum Legibus p. 1â—9 and his Barons and his People as Malmesbury before asserts As for the Danish Laws they never prevail'd but in those Countrys which the Danes intirely Conquered which consisted mostly of them as Norfolk Suffolk and Cambridge-shire but as for the rest of England it was governed by its own Laws and enjoyed its Ancient Customs in the Reign of King Knute and his Successors of the Danish Race See the Charter of K. Knute quoted by Mr. Peâ—yt in his said Treatise pag. 146. But to come to the Authors next Reason why there can be no Fundamental Laws in this Kingdom viz. Because the Common Law being unwritten doubtful and difficult cannot but be an uncertain Rule to govern by which is against the Nature of a Rule which always ought to be certain This is almost the same Argument as the Papists make use of against the Scriptures being a Rule of Faith only their Reason is that the Scriptures are obscure because they are Written and need an Expositor viz. The Church or Tradition but with Authors it is contrary the Law is doubtful because unwritten whereas all that understand any thing of the Nature of the Laws of England know very well that the Common Law whose Authority depends not on any set Form of Words but the Sence and Reason of the Law is much less doubtful and makes fewer Disputes then the Statute-Law but though it be granted that many things in the Common Law are doubtful and difficult yet in the Main and Fundamental parts of it but just now recited it is plain enough As the Scriptures though doubtful or obscure in some things yet are plain and certain in all Points necessary for Salvation and why it is harder for an ordinary Countrey Fellow in a Civil Government to know when he is Condemned to be Hang'd without trial or to have his Goods or Money taken from him by a Fellow in a Red-coat without any Law then for him to judg in the State of Nature when another Man lies with his Wife or goes about to Rob or Murther him I know not His last Reason against making Common Law only to be the Foundation when Magna Charta is excluded from being according to Mr. H. a Fundamental Law and also all ' other Statutes from being limitations to Monarchy since the Fundamental Laws only are to be judg and these are Statute Laws or Superstructures This is also meer Sophistry since no Man in Metaphors or Similitudes ever expects an absolute Truth but what if the great part of the Magna Charta were Fundamental Laws before either King Stephen or King John granted it and that they did but restore what some of their Predecessors had before by oppression taken from their Subjects since there is little or none of it but was part of King Edward's Laws and consequently the Ancient Saxon Law before the Conquest and the like may be said of all other Constitutions in limited Monarchies as suppose in Denmark the Crown which was before Elective is now by the Concession of the Estates become Successive I believe no Men of this Authors Opinion will deny that this is not now a Fundamental Law in that Kindom and can never be altered without the Consent of the King and the Estates and yet this is a Law that follows after the Government was Instituted nor can I see any Reason why this Rule may not hold as well on the Peoples side as the Kings Why Rules of Play may not be made as well after the Gamesters are in at Play as when they first began and may not be as well called Fundamental Laws of the Game since if they are not observed it may be lawful for any of the Gamesters to fling up his Cards and play no more though he be at play with the Authors Natural Monarch his own Father But our Author will not leave off so but must give us one stabing Paragraph more against Fundamental Laws which is thus ' Truely the Conscience of all Mankind is a pretty large Tribunal for these Fundamental Laws to pronounce Sentence in It is very much that Laws which in their own Nature are dumb and always need a Judg to pronounce Sentence should now be able to speak and pronounce Sentence themselves Such a Sentence surely must
pleases because I have obliged my self to it by compact and I am obliged to follow this Mans will because he can enjoyn me thus by his supreme Authority But supreme and absolute are not one and the same thing for that denotes the absense of a Superiour or an Equal in the same order or degree but this a faculty of exerciseing any right by a Man 's own Judgment and Will but what if there be added a Commissary clause that if he shall do otherwise he shall forfeit his Kingdom as the Arogonians of Old after the King had sworn to their Priviledges did promise him Obedience in this manner Vid Hotomani Frarcogallia C. 12. We who are of as great Power as thou do Create thee our King and Lord on this condition that thou observe our Laws and Priviledges if otherwise not Here it is certain that an absolute King cannot be He to whom the Kingdom is thus committed under a Commissary Clause or Condition but that this King may have for all this a regal Power though limited I see no reason to the contrary for although we grant a Temporary Authority cannot be acknowledged for Supreme because it depends upon a potestative condition and which can never be in the Princes power Yet a King of this sort above-mention'd is not therefore subject to the power of the People with whom the cognizance is whether he keep his Oath or not for besides that such a Commissary Clause is wont to comprehend only such plain things which are evident to any Mans sences and so are not liable to dispute So that this power of taking cognizance does not at all suppose any Jurisdiction by which the Actions of the King as a Subject may be judged but is nothing else than a bare Declaration whereby any Man takes notice that his manifest right is violated by another See Grotius Lib. 1. Cap. 3. § 16. And Baecler upon him who are both of the same Opinion Grotius indeed in the same place speaks more obscurely when he says That the Obligation arising from the promises of Kings does either fall upon the exercise of the act or also directly upon the very power of it if he act contrary to promises of the former sort the act may be called unjust and yet be valid if against those of the latter it is also void as if he should have said Sometimes a King promises not to use part of his Supreme Authority but after acertain manner and sometimes he plainly renounces some part thereof concerning which there are two things to be observed first that also some acts may be void which are performed contrary to an Obligation of the former sorts as for example if a King swear not to impose any Taxes without the consent of the Estates I suppose that such Taxes which the King shall Levy by his own will alone to bevoid Secondly That in the latter form the parts of the supreme power are divided But that the Nature of limited Kingdoms may more thoroughly be understood it is to be observed that the affairs which occur in Governning a Common-wealth are of two kinds for of some of them it may be agreed beforehand because whenever they happen they are still but of the same Nature but of others a certain Judgment cannot be made but at the time present whether they are beneficial to the Publick or not for that those circumstances which accompany them cannot be forseen Yet concerning both that People may provide that he to whom they have commited this limited Kingdom should not depart from the Common good in the former whilst it prescribes perpetual Laws or Conditions which the King should be obliged to observe in the latter whilst he is obliged to consult the assembly of his People or Nobility Thus the People being satisfied of the truth of their Religion and what sort of Ecclesiastical Government or Ceremonies do best suit their Genius so it is in Sweden may condition with the King upon his Inauguration that he shall not change any thing in Religious matters by his sole Authority So every Body being sensible how often Justice would be injured if Sentence should always be given by the sole Judgment of the Prince ex aequo hono without any written or known Laws and that Passion VI. Tacit An. L. 13. 4. 2. Interest or unskilfulness would have too great a sway for avoiding this inconvenience the people may oblige their King that either he shall compose a Body of just Laws or observe those that are already extant and also that Judgment be given according to those Laws in certain Courts or Colledges of Justice and that none but the most weighty Causes should come before the King by way of Appeal This is likewise the Law of Sweden So likewise since it is well known how easily Riches obtained by the Labour of others may be squandered away by Luxury or Ambition therefore the Subjects Goods should not lie at their Princes mercy to sustain their Lusts Some Nations have wisely assigned a certain Revenue to their Prince such as they supposed necessary for the constant Charges of the Common-wealth but if greater expences were necessary they would have those referred to the Assembly of Estates And since also some Kings are more desirous than they ought to be of Military Glory and running themselves into unnecessary Wars may put themselves and their Kingdoms in hazard therefore some of them have been so cautious that in the conferring the regal Dignity they have imposed this necessity upon their Kings that if they would make offensive Wars upon their Neighbours they should first advise with their great Council and so likewise it might be ordained concerning other matters which the People judged necessary for the Common-wealth lest that if an absolute power of ordering those things were left to the Prince the common good of the People would perhaps be less considered And since the people would not leave to this limited King an absolute power in those Acts which are thus excepted but that an Assembly either of the whole people or of those that represent them divided into their several Orders it is further to be observed that the power of this Council or Assembly is not alike every where For in some places the King himself though every where absolute may have appointed a Council or Senate without whose approbation he will not have his decrees to be valid Which Senate without doubt will only have the Authority of Councellors and though they may question the Kings Grants or Decrees and reject those which they judg inconvenient for the Common-wealth yet they do not this by any inherent Right but by a power granted them from the King himself Who would this way prevent his decreeing any thing through hast imprudence or the perswasion of Flatterers that might prove hurtful to his State to which may be referred what Plutarch mentions in his Apothegms ' That the Aegyptian Kings
HONI SOIT QVI MAL Y PENSE CAROLUS SECUNDUS Dei Gratia Angl Scotiae Franciae Et Hiberniae Rex Fide Defensor etc. F. H. Van Houe Sculp Patriarcha non Monarcha THE Patriarch Unmonarch'd BEING OBSERVATIONS ON A late Treatise and divers other Miscellanies Published under the Name of Sir Robert Filmer Baronet IN WHICH The falseness of those Opinions that would make Monarchy Jure Divino are laid open AND The true Principles of Government and Property especially in our Kingdom asserted By a Lover of Truth and of his Country LONDON Printed for Richard Janeway in Queens-head-Alley in Pater-Noster-Row 1681. THE PREFACE To the READER IT may not be unknown to those that have been conversant in Books and Pamphlets published during the late unhappy times that all the Treatises except the Patriarcha which are the subject of the ensuing Observations were published at first in single Tracts without Name though they have since come out under that of Sir Robert Filmer Baronet deceased All which though I hope they might be written with an honest designe and in defence of Kingly Government and of his then Majesties lawful and just Rights then trampled upon by a domineering Faction and may contain some things useful enough to confute divers levelling Notions then too much in fashion yet whilst this Gentleman as violent men commonly do ran into the other extream and must needs assert an Absolute Monarchy Jure Divino so that no other Government can be lawfully exercised nor the least Limitations set to it without Sacriledge and diminution of that Soveraignty which is derived from no less an Original than God himself and by denying that Princes can ever be obliged by any Fundamental or after-Contracts or Concessions or by any Coronation-Oaths to abstain from the Lives Liberties or Properties of their Subjects farther than as they themselves shall think it convenient so that there can be no such thing in nature as a Tyrant I leave it to the judgment of the impartial Reader whether what this Author might designe as Physick hath not served rather to inflame the Distemper and whether he hath not by such rash and ill-grounded Assertions given too much advantage to the Enemies of Kingship to retort That since all Government was ordained by God for the good of Mankind that could never be of divine institution which would render all things to be so much the Princes Right that the Subjects can claim a Property in nothing which he shall please to take from them and that however they use them yet they still exercise but their own Royal Rights and Prerogatives So that by thus taking away all distinctions between Kings and Tyrants and between Slaves and Subjects I fear that like Rehoboam's harsh Answer to his Peoples Complaints he hath not given many of his Readers a prejudice against that Government which temper'd by known Laws I take to be the best in the World For as Superstition can never serve to advance the true Worship of God but by creating false Notions of the divine nature in mens minds or render it not as it ought to be the Object of their Love and Reverence but servile Fear so I suppose this asserting of such an unlimited Power in all Monarchs and such an entire Subjection as this Author exacts from Subjects can produce nothing but a Slavish Dread without that Reverence Esteem and Affection for their Princes Person and Government which is so necessary for the quiet of Princes and which they will have whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression according to just and known Laws And that contrary Notions of this Supreme Power are so far from setling mens minds in a sober and rational Obedience to Government that they rather make them desperate and careless who is their Master since let what change will come they are sure to be no better than Slaves as may be seen in all the Absolute Monarchies from France to China You may also consider whether most of the Arguments this Author makes use of for absolute Obedience to Vsurpers as representing the lawful Prince and Father of the People might not serve for the establishing of Oliver and the Rump-Parliament as well as a lawful Soveraign since I am sure Milton makes use of the same places of Scripture for this purpose which this Author and Salmasius do for another So that most moderate men nay the Author 's own Friends may wish that either these Treatises had never been published or at least have been left in private Studies and Book-sellers shops amongst those heaps of Pamphlets condemned to dust and oblivion since no man can imagine to what end this Patriarcha and other Tracts should come out at such a Time as they did unless the Publishers thought that these Pieces which printed apart could onely serve to ensnare the Vnderstandings of some unthinking Country-Gentleman or Windblown-Theologue could do no less being twisted into one Volume than bind the Consciences and enslave the Reasons of all his unwary Readers Since therefore short Treatises of this kind written in a gentile stile and a formal appearance of Law and Reason do more mischief among young men and those that have not leisure to look much into the grounds of this Controversie than tedious Volumes And that this Notion of the Divine and Patriarchal Right of absolute Monarchy hath obtain'd so much among some modern Church-men who cry it up as their Diana and consequently hath so much infected our Vniversities that are the Seminaries where the Youth of this Nation do commonly receive Principles both in Religion and Politicks which if they have not a mind large enough to overcome the prejudices of Education will mis-lead them as long as they live and so make them desire at least to alter that Government and give up those Priviledges which their Ancestors were so careful to preserve and deliver down to Posterity I thought my self obliged having perhaps more leisure though less parts and learning than a great many others to do God my King and Country this service as to lay open the weakness of the Reasons and the dangerous consequences of this Author's Principles And though men of greater abilities may either dispise such weak Arguments as this Author makes use of or else think it below them to spend so much time from their more useful and beneficial Employments and that indeed his Reasons are not so knotty or intricate that they require any more than honest sence and plain English to lay them open to the unprejudiced Reader yet since the Poyson hath spread so far among the men of Letters and in the Country among divers of the Gentry and Clergie I thought it not amiss to do my weak endeavour to undeceive them And in so doing I desire to be thought no other than what I really am a zealous assertor and defender of the Government establisht by Law
onely was named in the Grant P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis That it may seem absurd that Kings now are Fathers of their People since Experience shews the contrary It is true says he all Kings are not the natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People and so in their right succeed to the exercise of Supream Jurisdiction and such Heirs are not onely Lords of their own Children but of their Brethren and all others that were Subjects to their Fathers And therefore we finde that God told Cain of his brother Abel His desires shall be toward thee and thou shalt rule over him Accordingly when Jacob bought his brothers Birthright Isaac blessed him thus Be Lord over thy brethren and let the sons of thy mother bow before thee P. 20. As long as the first Fathers of Families lived the name of Patriarch did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and onely the right of the Father descended upon the true Heir then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy By this means it comes to pass that many a Child by succeeding a King hath a right of a Father over many a gray-headed Multitude and hath the Title of Pater Patriae It may be demanded What becomes of the Right of Fatherhood in case the Crown does escheat for want of an Heir whether doth it not then devolve to the People The Answer is It is but the negligence or ignorance of the People to lose the knowledge of the true Heir for an Heir there is always If Adam himself were still living and now ready to die it is certain that there is one man and but one in the world who is next Heir although the knowledge who should be that one man be quite lost P. 21. This ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supream Power is devolved to the Multitude or that they have power to rule and chuse what Rulers they please No the Kingly power in such cases escheats to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the uniting of great Families or petty Kingdoms we finde the greater Monarchies were at first erected and into such again as into their first matter many times they return again And because the dependancy of ancient Families is oft an obsure and worn-out knowledge there the wisdom of many Princes have thought fit to adopt those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enabled them or made them fit and capable of such Royal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please And he that is so elected claims not his power as a Donative from the People but as being substituted by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People P. 22. In all Kingdoms or Commonwealths in the world whether the Prince be the Supreame Father of the People or but the true Heir of such a Father p. 23. or whether he come to the Crown by usurpation of the Nobles or of the People or by any other way whatsoever or whether some few or a multitude govern the Commonwealth yet still the Authority that is in any one or in many or in all these is the onely Right and natural Authority of a Supream Father There is and always shall be continued to the end of the world a natural Right of a Supream Father over a multitude although by the secret Will of God many do at first most unjustly obtain the Exercise of it To confirm this natural Right of Regal Power we finde in the Decalogue that the Law which enjoyns Obedience to Kings is delivered in the Terms of Honour thy Father and thy Mother as if all Power were originally in the Father If Obedience to Parents be due immediately by a natural Law and Subjection to Princes but by the mediation of an humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate P. 24. If we compare Rights of a Father with those of a King we finde them all one without any difference at all but onely in the latitude or extent of them As the Father over one Family so the King as Father over many Families extends his care to preserve feed clothe instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Soveraignty tend onely to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Priviledges so that all the Duties of a King are summed up in an Vniversal Fatherly Care of his People I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words and so be the better able to judge whether I understand and answer him or not as because it contains the substance and strength of all that the Author had to say in defence of it So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it His first Argument against the natural Freedom of Mankinde is drawn from Scripture and from Bellarmine's own Concession That Adam was and consequently every other Father ought to be a Prince over his Posterity And as Adam was Lord over his Children so his Children under him had a power over their own Children suberdinately to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People So that neither the Children of Adam or any else can be free from subjection to their Parents and this subjection to Parents being the foundation of all Legal Authority by the Ordination of God himself therefore no man can be born in a state of Freedom or Equality In answer to which I shall not concern my self what Bellarmine or any other have granted but would be glad to know where and how God hath given this Absolute power to Fathers over their Children and by what Law Children are tyed to an Absolute Subjection or Servitude to
in the Fatherhood Vid. Mezeray Abregé Chron. An. 1318. and that the first Kings were Fathers of Families which if granted yet will not prove that this proceeded from that natural perpetual subjection which Children owe their Parents or that because they are Parents they are therefore Lords and Kings over them So that this being the Groundwork of whatever he says in this Discourse p. 67. if this be faulty as I hope I have proved it to be all that he builds upon this foundation signifies nothing Secondly he assumes that this Paternal power cannot be lost it may be transferr'd or usurped but never lost or ceaseth But as the power of the Father may be lawfully transferred or aliened so it may be unjustly usurped and in Vsurpation the Title of the Vsurper is before and better than the Title of any other than him that had a former Right for he hath a possession by the permissive Will of God which permission how long it will last 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 Vsurper as may tend not onely to the preservation of his King and Father but sometimes even of the Vsurper himself when probably he may he thereby preserved to the correction or mercy of his true Superiour And though by humane Law a long Prescription may take away a Right yet divine Right never dies nor can be lost or taken away The same he says p. 70. That 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 Prescription against them Vpon this ground is built that Maxime That Nullum tempus occurrit Regi no time bars a King Which second assumption is likewise false for I have already proved that all Fatherly power ceases with the life of the Father as Motherly power with the life of the Mother or else in the state of Nature a man must be left like other Cattle to be pickt up and markt by whoever can first seize him And secondly that it is false that this power and authority of a Father can be transferred to or usurped by another or that the Son owes the person to whom his Father transfers or sells him any other duty than as his Assignee performs the Office of a Father towards him Much less that an Usurper acquires any Right over the person of the Son in the state of Nature for otherwise if a Thief should procure strength enough to drive a Master of a separate Family out of doors and so this Rogue could subdue the whole House and set up for Lord and Master of it that then the Wife and Children and Servants were immediately bound to obey him because he hath a possession and is in by the permissive Will of God and so hath a better Right than any body else but the Master himself It is true indeed in this case every Member of this Family is bound to preserve his own life and may yield a passive Obedience to this Rogue for fear of his power and as far as he thinks it will conduce to his preservation but I do not see any obligation he hath from Conscience or Reason to obey this Robber farther than as he cannot help it but may take the first opportunity to drive him out of the House and call in his true Father or Master unless he hath made him any promise to be quiet and not assault him for then he is in the same state with a Prisoner upon parol for all Writers on this subject hold that nothing but a lawful War can give any man a Right over the person of another unless he become his Servant by some voluntary act of his own or otherwise the Slaves taken by the Argter-Pyrates were in a sad case for they were bound in Conscience never to escape without the consent of their Masters Nor upon the Authors principles is there any difference between a Father of a Family in the state of Nature and a Prince since he tells us more than once that a Kingdom is but a large Family And consequently no difference between an Usurper of the Fatherly power and that of a Monarch onely the Rogue that usurped the one could call himself but Master of the Family but the other would stile himself King Emperour o◠Protector Nor will the place of St. Paul Rom. 13. v. 1. oblige any man in this case for though it is said that St. Paul wrote this Epistle Nero an Usurper being Emperour of Rome I deny that Nero was an Usurper for though it is true that Claudius left a Son yet since by the Roman Law a man might make whom he pleased his Son by Adoption which Son so adopted was in all respects looked upon as the true Heir of the adopting Father and Nero was so adopted by Claudius and so being elder than his own Son Germanicus would succeed before him Tacit Annal. 12. c. 25 26. And besides the Adoption being confirmed and passed into a Law by the Senate Nero was as truly Claudius's Son by the Roman Law as Britannicus himself So that an Usurper hath at first no better Right than another For Gods permitting a wicked act to be done as a Banditi or Pyrate to take a man Prisoner does not therefore confer on this Thief or Pyrate any Right over a mans person So that the instance the Author gives p. 73. will not hold That Vsurpers have such a qualified Right to govern as is in Thieves who have stolen Goods and during the time they are possessed of them have a Title in Law against all others but the true Owners and so such Vsurpers to divers intents and purposes may be obeyed For first this is no Law of Nature or Reason but onely a positive Law of England where for the avoiding of perpetual violence and strife and for the better securing of Property they have made possession even in Thieves to confer a Temporary Right against all but the true Proprietor Whereas in the state of Nature a Thief by invading another mans Goods unjustly and taking them away by violence becomes an Enemy to all Mankind and so may lawfully be killed or have what he hath so possessed taken from him by any other Secondly Neither does the parallel between the possession of Goods and that of a Kingdom hold for Goods may be possessed by the first Occupant but Government which is an Authority over the person of a man can never be seized since a man without his own act or consent can never lawfully fall into the power or possession of another as I have already proved So that I know not to what purpose this Treatise of the Authors could serve but to make all men obliged in Conscience to yield not onely a passive but an active Obedience to all the Commands of Cromwel and the
or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
may be mark him with the sharp Tooth of a Beast they call an Agoutye which is the disgracefullest punishment any man can suffer so that one of the main ends of a supreme power among us viz. to decide Controversies about Property and punish Thieves are there of no use And as for other Injuries such as Maims Adultery and the like they have no certain Judges for any of these things every man that is injured in any of these cases being his own Judge and Executioner observing that Law of an Eye for an Eye and a Tooth for a Tooth onely in Adultery the man hath power to kill both his Wife and the Adulterer if taken in the act and in Murder and great Hurts or Maims where the party injured is not able to revenge himself his neer Relations will not fail to do it and if they should omit they would be looked upon as Cowards or infamous so that being naturally loving to each other and having no words of disgrace to quarrel about and other Quarrels happening but seldom and no man maintaining or taking the part of the wrong-doer or revenging the death of a Murderer or Adulterer they have lived many Ages without any common Power to keep them at peace among themselves and yet they have much fewer Crimes committed amongst them than us It is true they have Captains or Cacicks among them but they have no power but in time of War and when the Expedition is ended though they pay them reverence and respect and make them preside in all their Councils and Assemblies yet they have no Authority in time of Peace to punish or question any man So that if they lived in Islands which were either far distant from others or else were inaccessible and would make no forein Expeditions they would not need so much as this Cacick and so could live together without any other Government than that of the Fathers of Families over their Wives and Children But perhaps it will be said these are Man-eaters and barbarous People and so are not to be quoted as Examples for the rest of mankind It is true the Brasilians eat their Enemies taken in War but the Caribbes do not But as for the Observation of the other Laws of Nature I will leave it to any man to judge which part of mankind observe them best those that can live peaceably together without either Judge or Gallows or we that can scarce be at quiet though we have them But I have done this onely to shew an intelligent Reader what are the true reasons of the necessity of a Civil Power amongst us that have a full propriety in all Lands and Goods by the particular Laws of our Countries Having now I hope dispatcht the first part of my intended Task which was to prove that the Author's Hypothesis concerning the Monarchical Despotick Power of Adam over his Wife Children or Descendants is altogether vain and without just grounds either from Scripture or Reason and consequently that neither any Fathers of Families nor the Princes as representing them can from divine Grant deduce any such absolute Power or Right over their Children or Subjects I shall not trouble my self with the answering of the rest of this Treatise having gone a good way in the second Chapter and answered his most material Objections about the Peoples conferring Soveraignty so that the rest is of small consequence I shall not need to examine whether the Jews chose the King or God since that Government being purely Theocratical it concerns other Nations not at all much less shall I vindicate the Form of the Roman Commonwealth or dispute whether they were more happy under Kings or Emperours or whether Democracies or Tyrannies are best or affirm that the People can correct their King or that there e're have been any Tyrants in England since the Conquest since they are all either foreign to this purpose or else signifie nothing when his foundations are pulled up As for what he says concerning a limited or mixt Monarchy I shall reserve all that is needful to be observed upon that subject until I come to consider the Author's Treatise called The Anarchy of a limited Monarchy where all or the greatest part of what he hath here written is there repeated As for â—his third Chapter since Divinity is not my Profession and that the Texts of S. S. he there quotes have been debated by so many Expositors both in English and Latine I count needless to repeat out of others what sense they may bear though I do not approve of the Author's interpretation who would have them applied alike to all Princes whether good or bad lawful or unlawful since upon those Principles there can be no difference between a just Prince and a Tyrant or between a lawful Monarch and an Usurper Nor shall I meddle with what he says concerning the Kings Power and Prerogative though I think there are divers things which he there says that are false and of very ill consequence yet since I confine my self purely to the Laws of Nature and Reason I shall leave it to other more able Pens and better skill'd in the Laws and Customs of this Kingdom to give him such an answer as they deserve Neither would I be thought to encourage Princes to stretch their Power to the utmost limits nor yet to stir up Subjects to take Arms as soon as ever they think themselves injured since the Populace is but too apt where they are left to be their own Judges to pronounce Sentence in ther own favour Therefore quitting all these as unnecessary Disputes I shall now proceed to take a short view of the rest of those Errors and Mistakes which remain yet to be observed in his other Miscellany-Treatises first published CHAP. III. I Desire the Reader in the first place to take notice that I wholly pass by the first Treatise called The Freeholders Grand Inquest since I confess my self no Lawyer verst enough in the learning of Records to answer him in his own way I shall therefore leave him to those that have made it their business And as for great part of it concerning the Antiquity and Power of the Commons in Parliament distinct from that of the Peers or Inheritable Nobility I shall refer the Reader to Mr. Petyts learned Treatise of the Rights of the Commons of England See likewise a late Treatise intituled Jani Anglorum facies nova written by a young Gentleman of great Learning and Ingenuity where all Objections against it are in my opinion fully answered Therefore I shall begin with his Observations upon Aristotle's Politicks which I shall not dwell long upon since I look upon that as one of the confusedest Pieces he hath written Nor is it my business as that great Author said once in the case of Plato to defend Aristotle but Truth I shall likewise pass by the Preface since it contains nothing considerable but his Hypothesis of Adam's Monarchy of which there needs
place more which the Author does not quote fairly Anarchy of a limited Monarchy p. 294. where Aristotle reckoning up the several sorts of Monarchies The last says he is the Heroick which flourished in Heroical times to whom the People did * The Greek word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of their own accord willingly obey and they were paternal and †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which confutes the Author's fancy that a King according to Law makes no kind of Government legal And then reckoning up the occasions reasons of their Obedience he concludes thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And these were chosen Kings by the consent of those that were willing Lambinus renders it à voluntariis and left the Kingdom so obtained to their Children Which whole sentence is omitted by the Author because it makes against his Hypothesis and proves that the most ancient Kingdoms began by Election of the People So true is that excellent Simile of the elder Dr. Don's That Sentences of good Authors whilst they remain in their proper place like the hairs of an Horses tail concenter in one root of strength and ornament but pulled out one by one serve only to make Snares And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence where it makes for them they allow it and make use of it but where it is against them it is false or signifies nothing I shall now cursorily look over the rest of this Discourse where p. 23. though it be true what Aristotle says That the People must act as a Monarch and become as one Person before it can govern So after they are so united into one Senate or Council it is no good Argument to say That the whole Multitude does not govern where the major part onely 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 often contrary to their wills those people to contract it being the major part in one Vote that are perhaps of another opinion in another and so every change of business begets a new major part For though it is true every individual person does not actually agree to every Vote yet implicitly he does since at the first institution of the Government the first Compact was That the agreement of the major part should conclude the whole Assembly and whoever either then would not or now refuses to be so concluded is still in the state of Nature in respect of all the rest and is not to be lookt upon as a Member of that Commonwealth but as an Enemy and a Covenant-breaker I shall not quarrel with the Author if he hold that Monarchy does most conduce to the main ends of Government Religion towards God and Peace towards men since I agree with him that absolute Monarchy if a man could be sure the Monarch would still continue prudent and just were the best sort of Government for mankind Onely I cannot but smile to finde the Author p. 27. so much admire the high respect the great Turk pays the Mufti or chief Bishop as he calls him where by the by I never heard the Turkish Church-Government was Episcopal before yet every printed Relation can tell us that this wonderful Reverence is but a meer piece of Pageantry the Idol being of his own making and whom he again unmakes at his pleasure a sort of Ordination I suppose the Author would not allow to those of an indelible Character It is true indeed what the Author affirms p. 29. That Rome being in any desperate condition was still forced to flie to Monarchy chusing a Dictator with absolute Power Yet this was onely as a General in time of War or some great civil Commotion being very near it where it must be confest that the absolute power of one is best at such times which needed a speedy Remedy And argues no more the Romans good opinion of Monarchy than it does any mans approbation of Martial Law which though perhaps the best that can be used in War it will not therefore follow that it were to be chosen in times of Peace no more than because Brandy may do a man good when he is sick in his stomach therefore he ought to drink it constantly So that as one benefit of the Dictatorship was the help it gave them upon an Extremity so the next happiness they wisht for after that was over was that the Dictator would lay down his Office again And the People of Rome were never more tyrannized over and opprest than when these Dictators held their Power by force contrary to their Institution and longer than there was need of them as may be seen in the Examples of Sylla and Caesar But the Consuls though they had in many things especially in calling the Senate and in commanding the Army a Kingly power yet it was not absolute but was liable to be questioned by the Senate and People as any man that reads the Roman History may observe See the Oration of Valerius in Dionysius Halicarnassaeus lib. 7. upon the difference between the Senate and People I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin but besides his personal faults he was never their lawful King having ascended the Throne by the murder of his father-in-Father-in-Law Servius Tullius and kept it by the power of a standing Army without the due Election of the Senate and People which was contrary to the Institution of that Kingdom which was Elective The Author p. 32. makes a great difficulty to grant the Roman Commonwealth to be Popular It is true it was not so absolutely but was mixt with an Aristocracy in the Government of the Senate and with Regal power in the Authority of the Consuls yet it is plain the supreme Power remained in the Body of the People And though by the unequal division of the Centuries it is true the greater part of the common People were seldom admitted to vote being concluded by the major part of the first 97 Centuries who consisted of the better and richer men yet this inequality begot the Tributa Comitia which with the Author 's good leave was more absolute than the former Coâ—itia Centuriata For Dion Halicarnas lib. 9. relating â—he original of these Tributa Comitia and how they â—iffered from the other says That the latter were transâ—cted in one day without any Auspicia and could make 〈◊〉 Law at once without any precedent Senatus Consulâ—um which the Curiata Comitia could not And â—hough it is true that the power of making War and Peace and creating of Magistrates remained in the Comitia Curiata yet the judging of great and capital Crimes and of altering and making Laws remained â—n the Tributa Comitia as may be observed in the â—anishment of Coriolanus and other punishments by â—hem inflicted and all Appeals were to this Assembly Yet
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 Monarch's Power and Subjects duty where shall we find the Supreme that Culmen or apex potestatis that prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Author saies must be in every Monarch the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies Principality and Power doth also signifie beginning which doth teach us that by the word Prince or Principality or 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 In vindication therefore of Mr. Hunton on whom he makes these remarks I shall in the first place grant that he hath perhaps spoke not so properly in saying that the supreme Power must be restrained by some law whereas indeed he should rather have sayd limited by some law since the word restrained is of a harsh signification and denotes something of a certain force the exercise of which this Author is altogether against in his whole treatise of Monarchy so that putting it thus that the supreme Power in a limited Monarchy must be limited by some Law does not therefore place any coercive power above his who can call him to an account for his actions But a Power that may remonstrate to him where he hath acted contrary to that Law and may by that law punish not the Monarch but his Ministers that have dared to transgress those such known laws For as for the Monarch himself it is still supposed that he in his own person can do no injury So that he may still be Supreme and yet be limited not by any power Superior to his own but by his laws or declared Will which he himself hath made in the Assembly of his Estates and which he can not alter but by the same form by which they were constituted and this sort of limitation may very well consist with a perfect Monarchy Thus the King of the Medapersians was an absolute Monarch and alone made laws and yet we find in Dan. XII that Darius was forced against his will to cast Daniel into the Lyons Den for transgressing his own Decree because the Laws of the Medo-Persians did not alter that it could not be dispensed with by the King when they were once made Thus it is no derogation to God himself to be bound by his own Oath which from the immutability and perfection of his nature he cannot afterwards alter See Heb. VI. from v. 16. to 17 18. That by two immutable things in which it was impossible for God to lie c. the two immutable things are first his own nature and then the Oath he sware by himself so that we see this restriction of Gods power by his Oath which is a law to him is no derogation from his absolute Monarchy or Omnipotency but is consistent with it therefore it does not follow that in all laws where the law governs the Monarch he hath therefore but a Gubernative power Or that if the Soveraign Authority is limited by Law it ceases to be Supreme as I shall by and by shew more at large in the mean time I shall not defend Mr. H.'s opinion when he saith that in a mixed Monarchy the Soveraign Power must be originally in all the three Estates or that the three Estates are all sharers of the Supream Power only the primity of share in the Supream power is in one For the Observator observes very well that this contradicts what he before confessed That the Power of Magistracy cannot well be divided for it is one simple thing or indivisible beam of Divine perfection yet he will for all this allow his mixed Monarch but one share of the Supream power and gives other shares to the Estates and so destroys the very being of Monarchy by puting the Supream power or a part of it in the whole body or a part thereof Therefore I am so far of their opinion that held the Supream Power cannot well be divided into several shares since there is so great a conjunction between all the parts of Soveraign power that one part cannot be separated from the other but it will spoil the regular form of the Government and set up an irregular Commonwealth which will scarce be able to hold well together And that this will be so in all Governments see what Mr. Pufendorf hath said in that excellent work de Jure nature et Gentium discoursed upon this Subject Lib. IV. Cap. 7. §. 9. 10. 11. 12. 13. neither am I not here of Grotiu's mind Lib. 1. Cap. 3. § 9. 17. Who supposes the Supream power to be divided if a People yet free should command its future King per modum manentis praecepti after the manner of a lasting or standing Precept or Command where it does not appear how there can be a lasting Command at that time when no Person hath any longer a power of Commanding For every Command supposes a coactive force to be exercised when ever that Precept is violated therefore the People constituting a King must either retain this power against the King or may not retain it if the former there will remain only the empty name of a King but the real Soveraignty will still remain in the People but if the latter be true and they do not retain it this Precept or Command signifies nothing So likewise in that same place If in the conferring of the royal power any thing be added by which it may be understood that the King may be compelled or punished For here it is true the Soveraignty is not divided but the people hath it indeed altogether For if the People have a right of punishing the King upon any pretence whatever there is nothing conferred upon him but the office of the first Magistrate in the Commonwealth under the name of King but the Royal Power will still remain in the People because as I have already laid down all punishment quatenus as such must proceed from a Superior But all compulsion is performed two ways either morally or Physically that is by way of Soveraign Authority or by force of Arms or War for there is no Authority can be morally supposed against an Equal considered as such therefore when Grotius inferrs that the People may be at least equal to the King because in some cases it may compel him he is likewise necessitated to grant that neither of them hath any Authority over the other because it contradicts the nature of a Commonwealth Though compulsion by force of Armes as between Equals or those who have no Authority over each other must be granted in the state of nature in which we will make use of Grotius's own Example that a Creditor hath naturally a right of compelling the Debtor
to pay his debts although the Creditor hath no right to exact this of him by way of any authority thereby vested in himself otherways it were necessary that every one who owed another any thing must presently come under his power therefore the Debtor must be compelled by the Creditor to pay his debt either by the assistance of some Judge which cannot be supposed between the King and People or if they live in a natural liberty by force But if we should allow this way of compulsion to the People it will follow that both the King and the People do still live in a natural liberty or meer state of nature that is that the Commonwealth is dissolved Yet we will grant Grotius this that in all civil constitutions there is nothing absolutely free from some inconveniencies therefore because of the inconveniencies that arise from this divided Soveraignty it does not presently follow that there can be no such Government or that it must presently fall to an absolute Anarchy for right is not to be measured from what pleases either this or that Author but from his or their will from whom this right at first began So likewise on the other side it must be granted that if such division of the Supreme Authority hath been instituted by any People that people have not constituted a Regular government but a politick body subject to perpetual distempers Therefore supposing the most that can be required that the King in a limited Monarchy is he who alone gives the Essence and Authority to the Laws though he can make no other than what are offered him in the Assembly of his Estates yet if all Magistrates that put these Laws in execution are subordinate to him and depend upon him this takes away that inconvenience this Author objects against limited Monarchs For he is truely Supreme since he makes the laws and is the Fountain of all power in his Dominions neither does this derogate from the Supremacy of his Power that he is obliged either by original contract or by after promise or condescent not to make any laws or to levy any mony or taxes from his Subjects but what they shall offer him in the Assembly of his Estates For since all laws that are made in a Monarchy are but the declaration of the Monarchs will and that he being but one man cannot declare his will Physically to the sences of all his Subjects but requires some politick form or manner of signifying this will to all that are to obey it which is various according to the several Customs and constitutions of divers Kingdoms therefore as in Monarchies where there are no use of Letters Laws can be no otherwise made or promulgated but by signifying the Monarchs will to the subordinate Magistrates by word of mouth by such Officers as must be supposed to bring some sufficient token that they come immediately from them and are sufficiently instructed in the matter he will have observed as a law which form can depend upon nothing but Custom or the common consent of the People to admit that for Law which shall be so promulgated since they have no infallible certainty but that the Messenger may be sent by some body else that hath a mind to make alterations in the State without the Princes knowledge or else that the Messenger may mistake the Princes meaning and report the law wrong So likewise in Kingdoms where laws are put into writing there must be some form or rule agreed upon both of making and promulgating Laws So likewise in those we call limited Monarchies the Custom or form is not to admit any thing for a Law or the authentick will of the Prince but what his Subjects have offered to him drawn up into form and which he hath passed into a Law by some token of consent before instituted in the presence of the general Assembly of the Estates of his Kingdom which course is absolutely the best both for the Prince and People For since the end of all laws as of Government it self are the good of the people so it is not likely that the Subjects having the drawing up of the Laws will offer any to the Prince that they are not absolutely perswaded are for the benefit of the Commonwealth nor can that be any prejudice to the Prince's power since no law can be made unless he give it the stamp of his Royal Authority Therefore though Forms are not essential to the declareing of the will of a private man in the state of nature yet they must be in respect of that of such a Prince since the power of the former is natural and can influence only those that hear him but that of a Prince is artificial or political as proceeding from compact and is to command even those that never saw him or are like to come into his presence it is requisite that the ways of declaring his will be made so certain that the Subjects may have no reason to doubt of it therefore there can no way be found out which can more certainly assure all the Subjects both of the benefit and Authority of the Laws than when a Prince voluntarily in a general Assembly of all the Estates of his Kingdom either by pronouncing of words or by touching the Bills offered him with his royal Scepter or any such like Ceremony declares he will have those Bills or Writings promulgated and observed as his Laws or declared Will which being once done in such a solemn and publick manner takes away all suspition that the Prince was not well advised when he made them or wrought upon by the flateries or insinuations of Women or Favourites Circumstances which being wanting in absolute Monarchies where the Prince's Edicts are perhaps either given out in hast or at second hand to those who never see him by Eunuchs or Officers who taking the Monarch at some advantage and makes him pass Commands which perhaps he does not remember or repents of the next day whereas in such a limited Monarchy a Prince does not only appear with greater Splendor and Authority when in the face of his Subjects he exercises the highest Act of Soveraignty in making laws but likewise assures them that he acts with an absolute freedom when having a liberty to deny he yet grants the desires of his Subjects yet so establishes them for Laws that they cannot be altered without their consents and by the same means by which they were first made which being supposed may serve to answer an Objection that some may make that if this way of passing of Laws or the Princes declaring his will after this manner be but a matter of form or Circumstance why may not this Monarch alter it at his pleasure and declare for the future for example that all laws shall be by him passed in his privy Council and then being openly proclamed and Copies recorded in all Courts of Justice shall be of the same Authority as if they had been passed
and if that condescent be an act of Grace doth not this condesent to a limitation come from the free determination of the Monarchs will if he either formally or virtually as the Author supposeth desert his absolute or Arbitrary power which he hath by conquest or other right Which last words of Mr. H. though I confess they are ill exprest yet I see no down right contradiction in the sence Mr. H. meant them if any man please to consult him he there says That a Monarch may either be limited by original constitution or an after condescent therefore these words the sole means of Soveraignty is the consent and fundamental contract is not meant of a limited Monarchy any more than of another but of any Soveraignty whatever So likewife though these words a secundary original constitution may seem to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to destroy each other yet as the Author explains himself you will find they do not in sense for he only supposes that a Prince who hath an absolute Arbitrary power either by succession or election finding it not so safe and easie as he conceives it would be for him if he came to new terms with his people would desert some of that despotick power and govern by let rules or Laws which he obliges himself and his Successors by Oath or some other conditions never to make or alter without the consent of his Subjects I see not why this may not in one sense be called a second original constitution for he was at first an absolute King by which was the original constitution and his coming to new Terms with them may be termed in respect of this a secundary original constitution or agreement of the government though founded upon the former old right which the Monarch had to govern as for a King by Conquest it cannot indeed in respect of him be properly called a secundary constitution since the Conquerour had no right to clame an absolute subjection from the Subjects until they submitted to him so as that they might not drive him out again if they were able until he came to some Terms with them Thus I think no sober man but will maintain that the people of England might lawfully have driven out William I. called the Conquerour supposing he had claimed by no other title but Conquest alone which when he had sworn to observe and maintain all the Laws and liberties of the people of England and had been thereupon Crown'd and received as King and had quitted his pretensions by Conquest or force and had taken the Oaths and homage of the Clergy Nobility and People they could not then without Rebellion endeavour to do And certainly had he not thought his title by Conquest not so good as the other of King Edward's Testament he would never have quitted the former and sworn to observe the Laws of his Predecessor so likewise Henry I. Mat. Paris from whom all the Kings and Queens of England have since claim'd upon his Election and Coronation for other title he had none granted a Charter whereby he renounced divers illegal practices which Flatterers may call Prerogatives which his Father and brother had exercised contrary to King Edward's Laws and their own Coronation Oaths so that here is an Example of one of the Authors absolute Monarchs who by a right of Conquest might pretend to the exercise of an arbitrary power yet renounced it and only retained so much as might serve for the well governing of his Subjects and his own security It is not therefore true which this Author affirms that this accepted of so much power as the people pleased to give him since they neither desired nor did he grant them any more but those just rights they had long before enjoyed under their former Kings before his Father's coming into England However I conceive this wise Prince was of the opinion of Theopompus King of Lacedemon Plut. in Lycurgo who when his wife upbraided him that he would leave the royal dignity to his Sons less than he found it no rather replyed he greater as more durable and therefore Plutarch in the same place ascribes the long continuance of the Lacedemonian Kingdom to the limited power of their Kings in these words ' and indeed when Envy is removed from Kings together with excess of power it followed that they had no cause to fear that which happened to the Kings of the Massenians and Argives from their Subjects But because this Author tells Mr. H. that if we should ask what proofs or examples he hath to justify his Doctrine of a limited Monarchy in the Constitution he would be as mute as a fish we will shew two or three examples of the antiquity of such limited Monarchies though they were not of the same model with those that are at this day found among the Germanes and other northern Nations descended from thence In Macedon the Kings descended of Caranus as Callisthenes says in Arrian did obtain an Empire over the Macedonians not by force but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by Law So Curtius Lib. IV. The Macedonians were used to Kingly Government but in a greater appearance of liberty than other Nations For it is certain the lives of their Subjects were not at their disposal as appears from the same Author Lib. VI. The Army by an antient custom of the Macedonians did judg of Capital causes i. e. in time of War but in peace it belonged to the People the power of their Kings signified litle unless his Authority was before of some force And this was by original constitution for we do not find that ever the Kings of Macedon altered any thing in their original constitution yet they had the Soveraignty in most things and their persons were sacred So likewise among the antient Romans where Romulus from a Captain of Volunteers became a King Dyonisius Halicar Lib. II. Tells us that after Romulus had made a speech to his Souldiers and followers to this effect that he left it to them to consider what Government they would chuse for whatsoever they pitcht upon he should submit to it and though he did think himself unworthy the Principality yet he should not refuse to obey their Commands concluding that he thought it an Honour for him to have been declared the Leader of so great a Colony and to have a City called by his name Whereupon the people after some deliberation among themselves chose him their King or limited Monarch since both the Senate and people had from the very beginning their particular shares in the Government the Senates making this great Counsel which yet were for the greater part of them chosen out of the Patricians by the Tribes Dyon Hal. Lib. 11. and Curiae with these he consulted and referred all business of lesser moment which he did not care to dispatch himself for be reserved to himself the last Appeal in causes and to be Pontifex Maximus or Cheif Priest and Preserver
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
history and Laws of his Country but very well knows and that this opinion of Englands being a limited Monarchy is no new one but owned to be so by our Kings themselves We may appeal to the last words of Magna Charta it self Concessimus etiam eisdem pro nobis et haeredibus nostris quod nec nos nec haeredes nostri aliquid perquiremus per quod libertates in hac Charta contentae infringantur vel infirmentur Et si ab aliquo contra hoc aliquid perquisitum fuerit nihil valeat et pro nullo habeatur And this his late Majesty of blessed memory who best knew the extent of his own power says in his Declaration from New-market Martij 9. 1641. That the Law to be the measure of his power and if the Laws are the measure of it then his power is limited for what is a Measure but the bounds or limits of the thing measured So likewise in his Answer to both Houses concerning the Militia speaking of the men named by him If more power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by Law first vested in him with power to transfer it to those persons In which passage his Majesty plainly grants that the power of the Crown is limited by Law and that the King hath no other Prerogatives then are vested in him thereby Nor was this any new Doctrine or indicted by persons disaffected to Monarchy and which had but newly come off from the Parliament side by the apparent Justice of his late Majesties Cause as Mr. Hobs in his little Dialogue of the civil wars of England doth insinuate but was the opinion of the ancient Lawyers many hundred years ago Bracton who lived in the time of H. 2. writes thus Li. I. Cap. 8. Ipse autem Rex non debet esse sub homine sed sub Deo et Lege quia Lex facit Regem Attribuit igitur Rex Legi quod Lex attribuit Ei viz. dominationem et potentiam Non est enim Rex ubi dominatur voluntas et non Lex And Li. III Cap. 9. Rex est ubi bene Regit Tyrannus dum populum sibi creditum violenta opprimit dominatione quod hoc sanxit lex humana quod leges ligent suum Laterem if this be law we have a Tyrant as well described as by any difinition in Aristotle Also that the King alone cannot make a Law Li. I. Cap. 1. So likewise the Lord Chancellour Fortescue in his excellent treatise de laudibus Legum Angliae dedicated to Prince Edward only Son to Henry the VI. and certainly writing to him whom it most concerned to know those Prerogatives he might one day enjoy he would not make them less than really they were Cap. 9. He instructs the Prince thus non potest Rex Angliae ad libitum suum mutare Leges Regni sui Principatu namque nedum regali sed et politico ipse suo Populo dominatur Populus enim iis Legibus gubernatur quas ipse fert cum Legis vigorem habeat quicquid de consilio et de consensu Magnatum et Reipublicae communi sponsione authoritate Regis sive Principis praecedente juste fuerit difinitum et approbatum And the Parliament Rol. 18. E. 1. num 41. quoted in Lord Cook 's Inst 4. pt acknowledges the same Homines de Cheshire qui onerati sunt de servientibns Pacis sustentandis petunt exonerari de oneribus Statuti Winton ' c. The Kings Answer was Rex non habet consilium mutandi consuetudines nec statuta revocandi So likewise Cap. 18. speaking of the Laws of England non enim emanant illa à Principis solùm voluntate ut Leges in Regnis quae tantum regaliter gubernantur ubi quandoque statuta ita constituentis procurant commoditatem singularem quod in ejus subditorâ—m ipsum redundant dispendium et jaciuram sed concito reformari possunt dum non sine Communitatis et Procerum regni illius assensu primitus emanarunt so Cap. 13. Et ut non potest caput corperis Physici nervos suos commutare neque membris suis proprias vires et propria sanguinis alimenta denegare nec Rex qui caput est corporis Politici mutare potest Leges corporis illius nec ejusdem Populi substantias proprias substrabere reclamantibus iis an invitis And concludes thus habes jam Princeps institutionis politici Regni formam quam Rex ejus in Leges ipsius aut subditos valeat exercere ad rutelam namque legis subditorum ac eorum corporum et bonorum Rex hujusmodi erectus est et ad hanc potestatem a Populo effluxam ipse habet quo ei non liceat potestate alia suo Populo dominari I had not been so large on a Subject which is so known and evident and which no sober man will deny were it not for two reasons the first is to satisfy Divines and men of other professions who have not leasure to read old Law Books and perhaps may lye under some doubts what the true form of Government of this Kingdom hath ever been and in the next place to confute the Author's Cavil and other mens of his way to the contrary Authority being the best Judge in this Case as Diogenes confuted Zenos's Arguments against motion not by disputeing but walking So now whether the Treatise this Author writes against be but a Platonick Monarchy or a better piece of Poetry than Policy I will not dispute but this much I think I may safely affirm that the Government he describes is not a Creature to be found God be thanked on English ground and for those that so much admire it let them go find it by the banks of Nilus or Ganges where the Sun that late Emblem of universal Monarchy is so indulgent to the Creatures he produces that those which he cannot make grow here beyond an Eut or Adder are there made Crocodiles and Serpents that devour a man at a bit So that if you should stile them the representatives of the Monarchs of those Climates Travellers will say you do not wrong them I shall now proceed to answer the most material Objection of this Authors and not imitate him who in this Treatise passes by all the Arguments which Mr. H. brings to prove that this is no absolute despotick but at least a limited Monarchy as silently as Commentators do hard places that puzle them Let us therefore look back to his Patriarcha where he gives us a distinction of the School-men ' whereby they subject Kings to the directive but not to the coactive power of Laws and is a confession that Kings are not bound by the positive Laws of any Nation Since the compulsory power of Laws of that which properly makes Laws to be Laws by binding men by rewards and punishments to obedience whereas the direction of the Law
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
although it look fine yet examined to the bottom signifies little for it is not true that every the least transgression of the bounds of Law is a subversion of the Government it self since if done perhaps only to one or a few persons it does not follow that therefore it must be a leading case and so bring on a prescription against publick Liberty in all cases Neither does the Subjects bearing with it not contribute otherwise then accidentally to this breach of Liberty Since he is obliged to bear it not because it is just but because he either may hope to have redress by the ordinary course of Law or else by petitioning the Assembly of Estates when they meet who are partly ordained on purpose to remonstrate the Grievances of Subjects to their Prince and thereupon to have them redressed Nor is this limited Monarch as the Author would infer less obliged to govern according to Law in smaller or private matters then in great and publick ones Only in many smaller matters Princes or their Officers may through ignorance or inadvertency sometimes transgress the true bounds of Law which they would not do perhaps if they were better informed And so likewise if the Subject bear it it is not from the Legality of the Act but from this great Maxime in Law and Reason that a mischief to some private men is better than an inconvenience in giving every private person power that thinks himself injured by the Prince or his Officers to be his own Judg and right himself by force since that were contrary to the great duty of every good Subject of endeavouring to preserve the common peace and happiness of his Country which ought to be preferred before any private mans Interest So on the other side if the oppression or breach of Laws be general and extend to all the People alike if the reason of the case alter why may not the practicedo so too ' But Mr. H. gives us another remedy in this case that if the Monarchs Act of Exorbitancy or Transgression be mortal and such as suffered dissolves the Frame of the Government and publick Liberty then the illegality is to be laid open and redressment sought by Petition Which is true for an Appeal to the Law from the violence of subordinate Ministers is really a Petition for Justice to the King himself who is by the Law supposed present in the persons of his Judges that represent him and this the Author himself in a better humour does confess in his Patriarcha P. 93. The people have the Law as a familiar interpreter of the Kings pleasure which being published throughout the Kingdom doth represent the presence and Majesty of the King also the Judges and Magistrates are restrained by the common Rules of Law from using their own Liberty to the injury of others since they are to judg according to the Laws and not to follow their own Opinions And because it might so happen that the King may be sometimes surprised or importuned to write Orders or Letters to the Judges to direct them to act contrary to the Law The King himself in Parliament hath declared See the Oath of the Justices 18. E. 3. what Oath these Justices shall take when they are admitted into their Office where among other things they swear thus And that ye deny no man common right by the Kings Letters nor none other mans nor for none other cause and in case such Letters do come to you contrary to the Law that ye do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding the same Letters and concludes thus And in case ye be from henceforth found in default in any of the points aforesaid ye shall be at the Kings will of Body Lands or Goods thereof to be done as shall please him as God help you c. And the Lord Chief-Justice Anderson and his Fellow-Justices in the Common-Pleas who upon so great a point as Cavendishes Case was 35 El. having consulted with all the Judges of England delivered their Opinions solemnly in writing that the Queen was obliged by her Coronation-Oath to keep the Laws and if they should not likewise observe them they were forsworne Anderson p. 154 155. Which Will of the Kings is supposed to be as well declared by the House of Peers his supreme Court of Justice as by any other way See the Judgment upon Tresillian and the rest of his Brethren 21 Rich. 2. and the Impeachment of the House of Commons against the Judges that gave their Opinions contrary to Law in the case of Ship-money Vide the subsequent Act of Parliament 17 Car. 1. Chap. 14. declaring that upon the Tax called Shipmoney and the Judgment Entr. 1. H. 7. 4. b. the judicial opinions of the said Justices and Barons were and are contrary to the Laws and Statutes of this Realm and the Liberty of the Subjects c. which if it be truely observed there can never be any fear of a Civil War or popular Commotion since our Law supposes the King can do no wrong that is in his own person And therefore Sir John Markham when Chief Justice told King Edward the 4th That the King cannot arrest any Man himself for suspition of Treason or Fellony as other of his Lieges may for if it be a wrong to the party grieved he has no remedy Therefore if any Act or thing be done to the Subject contrary to the Law the Judges and Ministers of Justice are to be questioned and punished if the Laws are violated and no reflection made upon the King who is still supposed to do his Subjects Right Si factam fuerit injustum says Bracton per inde non fuerit factum Regis And thus much will serve for a further Answer to the Authors Query before mentioned Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws since all the Subjects both great and small are supposed to know what the Rights and Priviledges of the Subject are as well as what are the Prerogatives of the Crown nor are these reserved Cases so many or so difficult as the Anthor would make us believe but that they may be easily understood without Appealing to any other Judg then the Conscience of every honest man And though the King may for our common defence in time of War make Bulwarks upon another mans Land or command a House to be pull'd down if the next be on Fire or the Suburbs of a City to be demolished in time of War to make it serviceable though men may justify their obedience in such Cases yet it were folly and madness from thence to argue that the King were as much to be obeyed if he commanded us to pull down a whole Town for his Diversion or to take away all mens Lands or Goods at his Pleasure Since if he should be so weak as to command it it were his unhappiness
certain Revenue appointed for this end of which burthen if you are afterwards a weary you shall not be able to Depose him again since he obtain'd the Kingdom by your choice and consent and so cannot be taken from him So that it is plain that this place does not at all serve to Patronize evil Princes so neither that there is here any limited Power conferred by God after the manner of a constant and unalterable Precept and of which no constitutions can diminish any part since here only the necessary Charges and Burthens as well of an absolute as of a limited Royalty are described therefore it is wholly in the will of a free People whether they will have an absolute Power or will deliver it with certain Laws so that those Laws contain nothing that is wicked or which may destroy the ends of Government for although Men at the beginning did freely enter into a civil Society yet since they were before obliged to the observation of the Law of Nature they ought to Constitute such Rules of Power and civil Obedience which might be agreeable to that Law and to the lawful ends of all Common-wealths But as it may rightly be understood by what sort of Promise a Kingly Government may cease to be absolute for every promise hath not that force it is to be understood that a King upon his taking the Kingdom may oblige himself either by a General or special Promise which for the most part is confirmed by the Religion of an Oath A General Promise may be made either tacitely or expresly A tacite Promise of Governing well is understood in the very acceptance of the Kingdom although there were nothing expresly Promised yet most commonly this promise ought to be made expresly not without an Oath the solemnity of certain rights neither is it unusual that in this promise the Office of a King should be described by a Periphrasis or enumeration of the principal Parts as suppose it be that he will take care of the Publick safety that he will defend the good and punish the bad that he will Administer indifferent Justice that he will oppress no Body or the like Such Promisses do not all detract from absoluteness of his Power since the King is indeed obliged by those general Promises to govern well but what Method or what means he shall make use of for this end is left to his will and discretion but a special promise and in which both the Method and means to be used in the Administring the Government are particularly expressed seem to have a twofold Power for one only obliges the Conscience of the King but the other makes the Obedience of the Subjects depend upon its performance as upon an express condition A Promise of the first sort is thus If the King should swear for example that he will not bestow any Offices of trust on such a sort of Men that he will not grant any Priviledges to any which shall redound to the prejudice of others that he will make no new Laws or impose new Taxes or Customs or will not use Foreign Souldiers or the like Yet if there be no certain Council or Assembly Coustituted which the King should be obliged to consult whether the occasions of the Common-wealth require he should depart from those Engagements for there is still in all of them that tacite exception still understood unless the Safety of the Common-wealth the Supreme Law in all such Engagements require otherwise and which Council by its own right and not precariously can take cognizance of those affairs and without whose consent the Subjects cannot be obliged to observe the Kings commands in such matters here the Administration of the supreme Authority being restrained to certain Laws if the King shall act otherwise unless in cases of great necessity he is without doubt guilty of the breach of his Oath yet there does not therefore belong any power to the Subject to deny Obedience to the Kings commands or of making those actions void For if the King do say That the safety of the People or some remarkable advantage to the Commonwealth requires him to break his Promise as that presumption always ought to go along with the Kings actions the Subjects in this case have not any thing to reply because they have no faculty of taking Cognizance of those actions whether the necessity of the Common-wealth required them or not from which this is apparent that they do not take a sufficient caution if they will allow their King but a limited Power and yet hath not Constituted some great Council without whose consent those actions excepted cannot be exercised or unless there lie upon the King a necessity of calling the Estates whenever he deliberates upon the exercise of those Legislative Powers for that is better than if it should be necessary for the King to consult some Council consisting only of some few of his Subjects since it may easily happen that the private advantages of those few may differ from the publick good and likewise they for their own private Interest may not agree in those things which are truly beneficial for their Prince But the Authority of a King is more closly restrained if it be expresly agreed between the King and People upon the conferring the supreme power upon Him or his Ancestors that he should Administer it according to certain Fundamental Laws and concerning those matters which he hath not absolute Power to dispose of that he leave them to a great Council of the People or Nobility neither may decree any thing in those matters without their consent and if they should be done otherwise that the Subjects would not be obliged to observe his commands in such things neither yet is the Supreme Power rendred defective by such Fundamental Constitutions For all the acts of Supreme Power may be exercised in such a Kingdom as well as in an absolute one unless that in the one the King uses his own Judgment alone as decisive but in the other there is as it were a concomitant Cognizance remaining in the great Council upon which power of the Supreme Authority it does not radically but as it were conditionally depend sine qua non neither are there in such a Common-wealth two distinct wills forall things which the Common-wealth wills it wills them by the Kings will alone although it might happen form that limitation that certain conditions not being observed the King cannot legally will some things and so wills them in vain but neither does the King cease to have the supreme Power in such a Kingdom or that this Council is therefore above the King For these are no true consequences that because this Person cannot do all things according to his own humour therefore he hath not supreme Power I am not obliged to obey this Man in all things therefore I am his Superior or Equal and these are likewise very different I am bound to perform what this Man
observe a Law Note the Antiquity of of this excellent Law whereby they oblige their Judges by Oath that if the King require an unjust Sentence from them they should refuse him And in the same place it is noted that Antigonus 3. writ to his Cities that if by his Letter he should command anything contrary to his Laws they should not obey it but should think he failed thorough ignorance or misinformation and oftentimes importunate Requests are cluded this way whilst the Prince seems for quietness sake content to grant what he knows will be made void by this Senate or Court of Parliament As it hath been often in France yet when the King is resolved that his Will shall hold good and looks upon the contrary Reasons of this Parliament as not weighty enough to convince him it cannot then any longer contradict the Kings Will for it is not presumed that the King by constituting such a Court would irrevocably abdicate his Right of absolute power So that this Senate or Parliament hath indeed but a Derivative power from the King to be limited as he himself shall please although perhaps he will not exert this power but upon weighty considerations nor does this Court make the power of the King less than absolute since it only gives him occasion to review his own Acts and as it were Appeals from himself when surprised with Passions Prejudices or misinformation to himself in a more indifferent and considerate Temper The like may be said of the Assembly of Estates if they meet only for this purpose that they should be the Kings greatest Council by which the Requests and complaints of his People which often times are concealed in his private Council may come to the Kings ears who is then left free to Enact what he thinks expedient Vid. Gro. Li. 1. c. 3. § 10. But a Kingdom is truely limited when the Subjects at first conferred it on the King on this condition that he should assemble the Estates concerning some Acts without whose consent this Decree should not be valid yet it ought to be in the Kings power to call and dissolve this Assembly and to propose the business to be dispatcht therein unless we should go about to set up an irregular Common-wealth and leave the King no more than an empty Title but if these States being so convocated do of their own accord Propose those things which they conceive conducing to the good and safety of the Kingdom yet the Decrees or Acts constituted concerning them take their force from the Kings passing them Yet such an assembly of Estates do differ from Counsellors properly taken in this that although both of them can only move the King by reason only yet the King may very well reject the Reasons of these latter but not of the former neither ought the King to think himself contemned if these Estates do not consent to some things of his proposing For as he promised at first to have always before his Eyes the good of the Common-wealth of which a great many choice men are supposed to Judg more certainly than one A King may most commonly blame his own imprudence Passions or ill Fortune if the States happen to differ from him from whence it likewise appears that their fear is vain who think that by this means it is at the disposal of the Estates whether the Common-wealth shall be safe or not For it can scarcely be supposed that the King should be so negligent as to omit laying open to his Estates the necessities of the Kingdom or that the Estates being fully satisfied of them will ever go about to betray their own safety But this is certain since those who have conferred the limited power cannot be presumed either to intend to destroy or dissolve the Common-wealth or by their confederacy to order things so that the end of all Common-wealths cannot be obtained in it therefore there ought to be that favourable interpretation made of those Conventions that they really desire the common safety and would by no means do any thing contrary thereunto so likewise in making this compact that whatsoever they have so agreed to they are still to be supposed to have that intention that nothing should be done by reason of those conditions or parts which should prejudice the common safety and publick utility or whereby the Convulsion or Dissolution of the Common-wealth might follow But if such a chance should happen it would be most convenient that if the affair will allow of delay it should be proposed in the Assembly of Estates but where this cannot be done it may be the Kings Duty dexterously to correct those complaints that may break out to the destruction of the Common-wealth which also is of the the same force in respect of publick Laws Pint. in the Life of Agesilaus which the safety of the people and the supream Law commands sometimes to be silent As Agesilaus commanded the Laws of Licurgus to sleep for one day that those might return without ignominy that had fled at the Battel of Levetra However Mr. Hobs will allow no distinction between limited power and absolute but will have all supreme power to be absolute when it is to be observed that in all those assertions which are too rudely laid down by him there is a restriction to be added from the and of all Common-wealths as in what he lays down in his de Cive cap. 5. § 6. that he to whom in a Common-wealth there belongs the right of punishing can by right compel all to all things he pleases or as he expresses this limitation in the same place which are necessary for the common peace and safety and Cap. 6. § 13. when by the right of the supreme Governour he says there is connected so great an obedience of all the Subjects as is requisite for the Government of the Common-wealth so when in the place aforegoing he saith who ever hath so subjected his own will 'to that of the Prince that he may do whatever he pleases without punishment as also make Laws Judg differences punish whom he pleases use the strength power of all men according to his own will perform all these things by the highest right he hath then granted him the greatest power which can be granted But it is now to be considered by what intention or on what grounds men were moved to institute Common-wealths from whence it is clear that no body is understood to have conferred more power by his Will upon the Monarch then a reasonable man can judg necessary to that end and that although the ordering what may conduce to this end in this or that occasion does not remain in those that have transferred their power but in him on whom that power is transferred therefore the supream Ruler can compel the Subjects to all those things which are really condusing to the good of the Common-wealth but he ought not to go about to compel them to
those things that are contrary to the safety of the Common-wealth or against the Laws of Nature And if he endeavours any such thing without doubt he transgresses the bounds of his power Let us also consider the Arguments by which the same Author in his De Cive Cap. 6 § 17. endeavours to prove that all limitation of Soveraign power is absolutely vain he says that assembly which prescribed the Laws to the future King must have had absolute power either habitually or vertually If the Assembly remains constantly or adjourns their Meeting from Time to Time to a certain day and place their power will be perpetual and so the King will not have the Supream power but will be only a bare Magistrate Which we grant to be true if that Assembly can meet by its own Right and Decree of any Affairs of the Common-wealth and that the King be liable to give them an Account of his Actions But if it absolutely dissolve it self unless the Commonwealth be likewise dissolved there must in like manner a power be left somewhere of punishing those that transgress the Laws which without absolute power cannot be performed Which is false as also the Argument by which he would prove it for he who hath granted him by Right so much power that he can compel any of the Subjects by punishments hath so great power that greater cannot be conferred by them But for all this whoever will but consider the end of all Common-wealths and that those Subjects by the submission of their Wills and powers did not immediately become senceless Machines so that since they could grant the use of their united Forces to another upon condition and are able to judg whether this condition be performâ—d or not so they can likewise withdraw their Forces again upon the breach of the condition as likewise this is apparently false that there is no better provision against the abuse of Authority when it is granted limited then when it is left absolute for it is not who that he who hath power enough to defend all Men. which all that are not Fools will easily grant their Prince as also power enough to destroy them The Commands of a General which are sufficient to make the Souldiers stout to venture their Lives against an Enemy yet would be found of no force if he should command them to draw their Swords against each other So that prudent and worthy Princes though absolute will comply with the Genins of their Subjects and â—…t-times will be sparing to urge them too far though for their own advantage when they cannot be compelled to their Duty without some hazard to the Common-wealth But those Subjects are not less discreet who when they are satisfied what is not expedient for their Common-wealth have provided by Fundamental Laws that they should not be compelled to it by their Princes power So far speaks the judicious Mr. Pusendorf upon this Subject which though somewhat prolix I have thought fit to translate verbation because I would not be thought by going about to contract it to put my own sence upon his words and besides I know no man that hath writ more clearly of this Subject in avoiding on one side an absolute despotick Monarchy without falling into that Solacism in Politicks the division of the supreme power which he supposes truly inconsistant with Monarchy So that if the Reader is not satisfied with what I have here writ upon this Subject I am sorry his understanding and mine are not framed alike nor shall be angry with him if he like an absolute Monarchy better then that we live under Provided he will never Act any thing to produce publick disturbances or to introduce it either by force or fraud in this Kingdom Yet shall wish him no greater Prerogative then that of enjoying his own opinion without imposing it upon others who are not yet weary of their Estates and Liberties which since the People of this Nation are not yet weary of The World is wide enough and there are Countries where this which they admire as the primitive Government of the World and that which they perhaps Reverence as the Primitive Religion is practised in its full splendor and indeed are most suitable to each other All the hurt I wish those Gentlemen that they were all setled in any of them even which they like best Whilst all plain hearted English-men notwithstanding such subtile discourses as thofe of our Author are resolved to return the same Answer to them as the Temporal Lords did to the Bishops long since upon another occasion Nolumus Leges Angliae mutari of which I hope there is as little fear as there is or ever will be just occasion for it And so I shall quit my hands of this ungrateful task without troubling my self with his Discourse of Witches Since his other writings sufficiently assure us that whatever he was in other Learning he was no Witch in Politicks though he had Read Aristotle might perhaps be better read in the Fathers and Schoolmen or Civil-Law than in the Laws of Nature or those of his own Countrey FINIS ERRATA PReface Page 2. l. 14. dele not l. 18. hy r. by p. 5. r. despise observe p. 8. l. 32. compore r. compare the p. 15. l. 30. of Fathers r. of a Father l. 31. more true r. more certain l. 36. to r. thereto l. 37. dele without the help and assistance of others p. 24. l. 24. should make r. should have l. 26. in r. or in p. 29. l. 16. dele fourth p. 32. l. 33. d. not p. 37. l. 33. for excellent Pufendorf r. Mr. Pufendorf a late judicious Writer p. 40. l. 17 d. often p. 42. l 20. d. of p. 43. l. 17. ought quit r. ought to puit p. 44. l. 10. for a priviledg r. a liberty l. 21. and if r. for if l. ead have such r. have only such l. 31. fatherly r. or fatherly p. 37. 57. l. 28. puzzle r. distract p. 67. l. 14. require r. acquire l. 32. as I r. and p. 70. l. 13. d. perhaps p. 72. l. 25. d. goods p. 74. l. 5. or at their own dispose include within a Parenthesis p. 77. l. 8. upon r. upon them p. 83. l. 8. on r. than l. 31. r. without any stop after legat l. 32. owe his r. owe its p. 86. l. 32. the r. those l. 35. change r. charge p. 87. l. 29. it is r. they are p. 88. l. 20. his r. this p. 89. l. 6. consting r. consisting p. 90. l. 26. r. representative and d. body p. 92. l. 34. many r. so many p. 93. l. 7. but of r. but part of l. 13. d. from p. 95. l. 16. for an r. but an l. 24. d. hatred p. 99. l. 7. both of d. both p. 102. l. 3. at mans r. a mans p. 107. l. 20. Laws d. s ead l. 1. d. Custome p. 112. l. 32. r. misuse him p. 113. l. 25. most r. many p. 117. l. 30. all
their Parents Vid. Preface to his Observations on Aristotle 's Politicks since the Author in another place affirms that at first a Childe a Slave and a Servant were all one without any difference I see no divine Charter in Scripture of any such absolute despotick power granted to Adam or any other Father The Author in his Observations on Grotius de Jure belli c. founds this dominion of Adam over the Earth and all Creatures therein on Gen. 1.28 and quotes Mr. Selden in his Mare Clausum where he says That Adam by donation from God was made the general Lord of all things not without such a private dominion to himself as did exclude his Children c. From which words I do not conceive that Adam's absolute power over his own Off-spring can be made out for the words are spoken as well to the Female as Male of Mankind Be fruitful and multiply and replenish the Earth and have dominion over the fish of the Sea c. and over every living thing that moveth in the Original creepeth upon the face of the Earth By which words Adam hath no power conferred upon him over his own Children when he should have them These words implying no more than a conferring of a power by God on Mankind under these words of Male and Female and was not at all personal to Adam or Eve alone whereby they might subdue or tame the Brute Creatures for their use not comprehending those of the same kind with themselves since the general words extend no farther than to every living thing that creepeth upon the Earth nor does Gods grant of the Creatures to Noah comprehend more than this Onely God there gives man a priviledge to kill the Creatures for Food which Adam had not Which shews that Adam was so far from having any such power of Life and Death over his own Children that he had it not so much as over Brute Creatures Since if he had this power as a Monarch it is highly probable that being the Father of all Men in the world and having by the murder of Abel not onely lost a Son but a Subject it had been his Right alone to have punished Cain the Murderer Whereas we finde Cain Gen. 4. v. 14. upon his conviction of the Murder telling God that every one that findeth him should slay him and therefore v. 15. God set a mark upon Cain lest any finding him should slay him From whence we may infer 1. That it was a Law of Nature then that Murder was to be punished 2. That this Right of punishing did not belong to Adam as a Father alone so as to have power of Life and Death over his Children since the Text does not mention that he was afraid his Father should put him to death but every one that met him Neither does God set a mark upon him to secure him from Adam but from any body else that should light on him From whence it follows that if Adam had no more right by Gods concession to take away his Sons life for the murder of his Brother which is one of the greatest offences he could commit than any other of his Brethren or Kinsmen there is no reason why he should have it in any other case And as for what the Author says That this Lordship which Adam had over the whole World the Patriarchs by a Right descending from him did enjoy which was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation I cannot understand how this Right derives it self from Adam For he tells us but a little before p. 12. That Civil Power not onely in general is by divine Institution but even the Assignment of it specifically to the eldest Parents Therefore granting that all the Patriarchs from Abraham to Jacob's twelve Sons inclusively assumed a power of Life and Death over their own Families 1. I desire to know how this Right can be derived from Adam for the Right of supream Monarch of the world descending upon the eldest Son of Adam whom we will suppose to have been Seth since Cain might forfeit his Birthright this power of Life and Death could onely be truly vested in the eldest Grandchild or descendant from Seth which I suppose the Author means by eldest Parents or else he talks nonsence And that Abraham was this eldest Grand-son of Seth will be hard to prove since it is not apparent from Scripture whether Shem or Japhet were the eldest Son of Noah or Abram or Nahor the eldest Son of Terah And the Fathers and ancient Commentators on this place are divided in their opinions concerning this point And it is plain from divers places in Scripture that the eldest Son is not always first named But supposing that Shem was the eldest Son of Noah it does not appear that Arphaxad from whom Abram descended was his eldest Son since the Scripture does not undertake to give us the names of all the Sons of Shem but onely of Arphaxad as his name was necessary for the deriving of the Genealogy of Abraham the Ancestor of the Jewish Nation But if any man will answer as the Author does p. 21. that this right Heir of Adam coming by length of time to be lost this supream Kingly power became devolved to all independent Heads of Families then this Right of Adam as Lord and King of the whole World as the first man must certainly be extinct since none but the true Heir could have a Right to that according to the Author's principles So that this power of Life and Death which the Author will have the Patriarchs to have exercised over those of their Family must belong to them either as Fathers or else as Masters or Heads of their particular Families and not as Heirs to Adam But since the Author seems to found this Power of Adam upon Mr. Hunton's concession See Anarchy of a limited Monarchy p. 264. That it is God's Ordinance that there should be Civil Government because Gen. 3.16 God ordained Adam â—o rule over his Wife and her desire was to be subject â—o his and that as hers so all theirs that should come â—ut of her First all Expositors look upon these words â—s respecting only a Conjugal and not Filial Subâ—ction Neither were they spoke in the state of Naâ—ure or Innocence but after the Fall Neither for all â—hat did Adam or any other Husband by these words â—cquire an absolute Authority over the Life of his â—ife in the state of Nature so that she hath no â—ght left her to defend herself from the unjust violence 〈◊〉 rage of her Husband Therefore since this Power 〈◊〉 Adam over Eve and her Children cannot be preâ—nded to belong to him as a Father but as a Master 〈◊〉 a Slave and those that shall be descended from her 〈◊〉 were worth while to enquire what Power a Father 〈◊〉 Master of a Family can claim separate from any â—ommonwealth as we will suppose
these Patriarchs â—ere For this will serve toward the solving those â—xamples he puts of Abram's power of Peace and â—ar and of Judah's power of Life and Death over 〈◊〉 daughter-in-Daughter-in-law Thamar We will first then conâ—er the power of a Father by the Law of Nature â—er his Children and then that of a Master of a Faâ—ly over his Wife Servants or Slaves To begin â—…th that of a Father as the most worthy I shall deavour to search into the Original of the Father's â—wer over the persons of his Children and how far extends It is evident that this Power of Fathers over their â—ildren can only take place in the state of Wedlock 〈◊〉 as to Children got out of Marriage it is uncertain â—o is their Father who can only be known by the declaration of the Mother and she sometimes cannot certainly tell her self So that no man is obliged to take care of or breed up a Bastard because the Mother if she had her liberty of keeping what company she pleased can never morally assure him that the Child is his therefore unless he take upon him the care and education of this Child it belongs to the Mother and not to him to provide for it So that the Right of the Father over his Child commences by vertue 〈◊〉 the Marriage which is a mutual Compact between a Man and a Woman for their Cohabitation the generation of Children and their joint care and provision for them So that though by the Law of Nature which is confirm'd by the Law of God the Woman as the weaker vessel is to be subject to the Man as the stronger stouter and commonly the wiser creature 〈◊〉 whose care and courage she must owe the greatest parâ— of her provision and protection yet she is not without an Interest in the Children since she is under 〈◊〉 obligation to perform her part and that the most 〈◊〉 borious and troublesome in their Education thougâ— her Power and Right in them be still subordinate 〈◊〉 that of the Man to whom by force of the Marriage shâ— hath already subjected herself Some Writers therâ— fore think they have done sufficiently when they 〈◊〉 us that the Father hath an absolute Dominion ovâ— his Child because he got it and is the cause of it being By this Argument the Mother hath greatâ— Right over the person of the Child since all Natâ— ralists hold the Child partakes more of her than of 〈◊〉 Father and she is besides at greater pain and troubâ— both in the bearing bringing it forth nursing anâ— breeding it up But if it be answered that the Maâ— being Master of his Wife is by the Contract so likâ— wise of her Issue Then it follows that this power 〈◊〉 the Father does not commence barely from Geneâ—… tion but is acquired from the Contract of Marriage which till I meet with some reason to the contrary I see not why it might not be so agreed by the Contracts that the Father should not dispose of the Children without the Mothers consent Since we see it often so agreed in the Marriages of Soveraign Princes Vid. Articles of Marriage between King Philip and Queen Mary in Godwin's Annals An. 1554. Thuanus Lib. IX So likewise where a Subject marries his Queen as the Lord Darnley's Marriage with Mary Qu. of Scotland the Soveraignty and consequently the Power over the Children to be born remained entirely in Her who are always supposed to be in the state of Nature in respect to each other Yet though I will not deny but some Gratitude and Acknwledgment is due from Children to Parents even for this that they did enter into the state of Marriage for their generation and were the occasion of their Being Yet I do not see how by this alone a Father acquires an absolute power and dominion over the person of the Child to dispose of it as he thinks fit Since Parents acting here only as Natural and not Moral Agents they are not the voluntary Causes of its generation Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children upon so slight a foundation We must therefore trace this Right of Fathers over his Children to a more true original than any of these Since then all the Laws of Nature or Reason are intended for one end or effect viz. the common good and preservation of Mankinde and that Marriage is no otherwise a Duty than as by the propagation of our Species it conduces to without the help and assistance of others and that the Parents entred into this state of Marriage for the procreation of Children both the Instinct of Nature and Law of Reason dictate that they are obliged to take care of and provide for that Child which they as subordinate Causes have produced as being those on whom God hath imposed this Duty which is much greater than that of Generation for now the world is sufficiently peopled it may be doubted whether any person is obliged to Marry further than it may consist with their conveniency or course of Life But Parents when they are Married are tyed by the Laws of Nature to take care of the Children Therefore I suppose the highest Right of Parents in their Children doth arise merely from their discharge of this great Duty of Education as may appear from this Instance Suppose the Parents not being willing to undertake the trouble of breeding up the Child do either expose it or pass over their Right in it to another assoon as it is born I desire to know if the person that finds this Child or he to whom it is assigned breed it up until it come to have the use of Reason what Duty this Child can owe his Parents if they are made known to him Certainly all the obligation he can have to them must be upon the score of their begetting him which how small that is you may observe from what hath been said before nor can the Parents claim any further Right in this Child since by their exposing and granting it away they renounced all the Interest they could have in it so that the Duty and Gratitude he should have owed them had they taken upon them the care and trouble of breeding him up is now due to his Foster-Father or Mother who took care of him until he was able to shift for himself From whence it is evident that the highest Right which Parents can have in their Children is not meerly natural from generation but acquir'd by their performance of that nobler part of their Duty And so the highest Obedience which Children owe their Patents proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents for the trouble and care they put them to in their Education Having now I hope found out the Original of Parents Right and Interest in their Children and the chief ground of their Gratitude and Duty to their Parents we will now proceed to
the Second Point proposed and consider what kinde of Right this is and how far it extends Since therefore the Father's greatest interest in his Child proceeds from his having bred it up and taken care of it and that this Duty is founded on that great Law of Nature that every Man ought to endeavour the common good of Mankinde which he performs as far as lies in his power in breeding up and taking care of his Child it follows that this right in the Child or power over it extends no farther than as it conduces to this end that is the good and preservation thereof and when this Rule is transgressed the Right ceases For God hath not delivered one man into the power of another merely to be tyrannized over at his pleasure but that the person who hath this Authority may use it for the good of those he governs And herein lies the difference between the Interest which a Father hath in his Children and that property which he hath in his Horses or Slaves since his right to the former extends only to those things that conduce to their Good and Benefit but in the other he hath no other consideration but the profit he may reap from their labour and service being under no other obligation but that of Humanity and of using them as becomes a good-natur'd and merciful man yet still considering and intending his own advantage as the principal end of his keeping of them Whereas in his Children he is chiefly to design their good and advantage as far as lies in his power without ruining himself and though he justly may make use of their labour and service while they continue as part of his Family yet it is not for the same end alone that he uses his Horses or Slaves but that his Children being bred up in a constant course of Industry may be the better able either to get their own living or else to spend their time as they ought to do without falling into the Vices of Idleness or Debauchery So that it is evident the Father has no more right over the Life of his Child than another man being as much answerable to God if he abuse this Right of a Father in killing his innocent Son as if another had done it Neither hath he from the same Principles any right to maim or castrate his Child as this Author allows him to do in his Directions for Obedience much less sell him for a Slave Therefore it is no part of the Law of Nature unless he cannot otherwise provide for it but of the Roman or civil-Civil-Law that a Father should have power to sell his Son three times For the Father is appointed by God to meliorate the condition of his Child but not to make it worse since it is not himself but God that properly gave him his being So that I hope I have sufficiently proved there is a great difference between a Child and a Slave or a Servant for Life though this Authour will have them in the state of Nature to be all one But for the better clearing of this point how far the power of Parents over their Children extends I think we may very well divide as Grotius does the life of the Child into three periods or ages De J.B. l. 2. c. 5. § 2. The first is the time of imperfect judgment or before the Child comes to be able to exercise his Reason The second is the period of perfect Judgment yet whilst the Child still continues part of his Fathers Family The third is after he hath left his Father's and either enters into another Family or sets up a Family himself In the first Period all the actions of Children are under the absolute dominion of their Parents for since they have not the use of Reason nor are able to judge what is good or bad for themselves they could not grow up nor be preserved unless their Parents judged for them what means conduced to this end yet this power is still to be directed for the principal end the good and preservation of the Child In the second Period when they are of mature Judgment yet continue part of their Fathers Family they are still under their Fathers command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns and in both these Ages the Father hath a power to set his Children to work as well to enable them to get their own Living as to recompence himself for the pains and care he hath taken and the charge he may have bin at in their Education For though he were obliged by the Law of Nature to breed up his Children yet there is no reason but he may make use of their labour as a natural recompence for his trouble And in this Period the Father hath power to correct his Son if he prove negligent or disobedient since this Correction is for his advantage to make him more careful and diligent another time and to subdue the stubbornness of his Will But in other actions the Children have a power of acting freely yet still with respect of gratifying and pleasing their Parents to whom they are obliged for their Being and Education since without their care they could not have attained to that age But since this Duty is not by force of any absolute Subjection but only of Piety Gratitude and Observance it does not make void any act though done contrary to those Duties as Marriage and the like for the gift of a thing is not therefore void though made contrary to the Rule of Prudence and Frugality In the third Period they are in all actions free and at their own dispose yet still under those obligations of Gratitude Piety and Observance toward their Parents as their greatest Benefactors since if that they have well discharged their Duty toward their Children they can never in their whole lives sufficiently recompence so great benefits as they have received from them But it seems the Authour is not satisfied with these distinctions Observations on Grotius de J. B. p. 62. but saies He cannot conceive how in any case Children can ever naturally have any power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please them 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 humane Laws only which are made by the Supreme Fatherly Power of Princes who regulate limit or assume the Authority of Inferiour Fathers for the publick benefit of the Commonwealth So that naturally the Power of Parents over their Children never ceaseth by any separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents For my part I see no
reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary For he only tells us He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please without their Fathers leave and that naturally the Power of Parents never ceaseth by any separation c. but gives us no other reason than that they are always bound to study to please them As if this obligation of Gratitude and Complacency did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children and an absolute power over them in all cases whatsoever so that Children shall have no Right left to consult their own good or preservation in any case whatsoever Vid. Bodin de Rep. l. 1. c. 4. farther than the Father pleases As for Bodin and divers others that have writ on this subject they do no more than follow others who have asserted this Absolute Power upon no other grounds than the Jewish or Roman Municipal Laws but have never troubled themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Nature or Reason And most Treatises of this subject being commonly written by Fathers they have been very full in setting forth their own Power and Authority over their Children but have said little or nothing of the Rights of Children in the state of Nature towards their Parents Loc. sup laudat Therefore Bodin thinks he hath done enough in supposing that if a Father is wise and not mad he will never kill his Son without cause since he will never correct him without he deserve it and that therefore the Civil Law supposes that the Will of the Parents in managing the concerns of their Children is void of all Fraud and that they will rather violate all Divine and Humane Laws than not endeavour to make their Children both rich and honourable And from those instances out of the Roman Law supposes that Parents cannot so much as will any thing to their Childrens prejudice or so much as abuse this Fatherly Power of Life and Death And therefore thinks he hath sufficiently answered the Objection he makes that there have been some Parents who have abused this power so far as to put their Children to Death without cause He says They give us no Examples to the contrary And supposing this to have sometimes fallen out must therefore Legislators alter a wholsome Law because some persons may abuse it But if we consider what Bodin hath here said we shall finde every one of his Suppositions false For 1. he supposes it to be the Right of all Fathers by the Law of Nature to have an absolute power over the lives and persons of their Children 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point 3. That Fathers do seldom or never abuse this power 4. That if they do abuse it yet it is better to leave it in their hands than to abrogate it or retrench it The falseness of all which Assertions I either have already or else shall hereafter make manifest Only I shall remark thus much at present That upon Bodin's principle women that murder their Bastards would have a good time on 't because having no Husbands they have full power over the Life of their Children and there is no reason that it should be retrencht by any positive Laws because some offend against it But however this Argument of Bodin's would do our Author's cause no good for if Parents are to be trusted with this absolute power over their Children because of the natural affection they are always supposed to bear them then Princes ought not to be trusted with it since none but Parents themselves can have this natural affection towards their Children Princes as the Author grants having this power onely as representing these Parents Whereas Parentage is a natural Relation and neither can be created nor assigned farther than the Civil Laws of the Country have appointed and therefore there can be no adopted Son by the Law of Nature since Adoption arises chiefly from the promise and consent of the person adopted and partly from the Authority of the Civil Law or Municipal Law of the Commonwealth So that in relation to Princes upon this Reason of Bodin's cessante causa cessat effectus But indeed Bodin never dreamt of this fine Notion of our Author's that all Monarchs were not onely Heads but Fathers of their people or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino But I shall trouble my self no farther with him at present but shall proceed to consider this point of absolute Obedience a little farther I suppose the Author as any sober man else would grant that Children are not obliged so much as to attempt to perform the commands of their Parents in case they evidently appear impossible or extravagant such as a Father may give when he is in a fit of drunkenness madness or sudden rage which is all one with madness and of this who can judge but the Children who are to perform these Commands And in this case no man will deny but it is lawful for the Children to hold nay binde their mad or drunken Parents in case they cannot otherwise hinder them from doing mischief or killing either themselves their Mothers or Brethren So that though they may do this from that natural love charity which all men in the state of nature ought to shew toward each other yet they may likewise justifie the doing of it as Children who ought to have a greater concern for the good and preservation of their Parents than meer strangers and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations this being for the Fathers good and preservation and that for which he hath cause to thank them when he comes to himself And if it be said that the Son may then refuse his Fathers Commands or resist them pretending he is mad drunk or in a rage when he really is not and thereby take occasion to obey his Father no farther than he pleases to this I answer That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned or else onely pretends that he thinks so when really he does not If in the first case he erre in his judgment and the ignorance did not proceed from his own fault either of passion prejudice or too slight an esteem of his Fathers understanding he is not culpable though he make such a false judgment of his Fathers actions for God considering onely the sincerity of the heart does not require of any man more than he is able to perform But if on the other side the Son play the Hypocrite and refuse
Sons of Esau and Ishmael are reckon'd as so many independant Princes or Dukes and Lords of distinct Territories without any Superiority in the eldest Son who ought by the Authours Principle to have been absolute Lord over the rest And if these could divide themselves into as many distinct Governments as there were Sons Why might not they do so in infinitum And then there could never be any common Prince or Monarch set over them all but by Force or Conquest or else by Election either of which destroys the notion of the Natural Right of Eldership And as for the places he brings to prove it 1. Gods words to Gain concerning Abel will not do it His desires shall be subject unto thee and thou shalt rule over him For first this might be spoken only personally to Cain and not to give a Right to all Eldest Sons Secondly the words do not signifie an absolute Despotick Power but a ruling or governing by perswasion or fair means as when a man is ruled that is advised by another in his concerns Then as for the blessing upon Jacob by his Father Isaac Be Lord over thy Brethren and let the Sons of thy Mother bow before thee 't was never litterally fulfilled For Jacob was never Lord over Esau who was a Prince of Mount Seir in Jacob's life-time whilst Jacob was at best but Lord of his own family And as for bowing and other Rights of Superiority we read Gen. 33.3 that Jacob at his Interview with his Brother Esau called him Lord and bowed seven times to the ground before he came to him So that this Text is no more than a Prophecy to shew why the Jews or descendents of Jacob should have Right in After-times to rule over the Edomites or Posterity of Esau Lastly this Example makes against the Authour for it seems it is not the Eldest Son but whom the Father pleases to appoint is Heir after his death Since here Esau looses his Birth right by his own act but chiefly by his Fathers Will. Yet if after all some will urge from the Principles I have laid down that it seems more to conduce to the happiness and peace of Families and in that to the great end I have before laid down the common good of Mankinde rather to allow this absolute Power of Life and Death to Parents over their Children and an absolute Subjection to them as long as they live since Parents do usually take that care to breed up their Children and to have that tender Affection towards them that they will seldom take away their Lives or sell them for Slaves or keep them so themselves unless there be very great cause of which the Father only ought to be Judge since it being the nature of most Children to be apt to contradict and disobey their Fathers commands or perhaps resist them pretending they would kill them when they only go about to give them due correction And since most young people hate restraint and love to be gadding abroad they having a Right by these Principles to judge when they are able to shift for themselves would take any slight pretence to run away from their Father assoon as they were grown pretty big and so perhaps leave their Parents in their old Age when they had no body to take care of them whereby nothing but confusion and quarrels would happen in Families great mischief to the Parents and often ruine to the Children who being often opiniatred and self-will'd would think better of their own abilities than they really deserved And therefore divers Nations seeing these great Inconveniencies did by their Laws leave Parents the Power of Life and Death over their Children Such were those the Author instances in the Persians See Patriarcha p. 38. chap. 2. Gauls and many Nations in the West-Indies And the Romans even in their Popular State had this Law in force Which Power of Parents was ratified and amplified by the Laws of the XII Tables enabling of Parents to sell their Children three times And the Law of Moses gives full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to inquire and examine the justness of the cause but it was so ordained lest the Father should in his Anger suddenly or secretly kill his Son To all which I answer that since this Argument quits the natural Power of a Father by Generation and only sticks to the acquired one of education and appeals to the common good of Mankinde I do acknowledge it is a better than any of the rest Yet I think it is not true that Parents in the state of Nature would more seldome abuse their power than Children would this Natural Liberty I here allow them of defending and providing for themselves in cases of extreme Danger and Necessity For this Temptation to do ill is greater on the Fathers side than that of the Children For they looking on themselves as having an absolute and unquestionable power over them and that they may deal with them as they please are apt to think themselves slighted and disobeyed by their Children perhaps on very light occasions and their Passion often rises to that height as not considering the Follies and Inconsiderateness of Youth that they may if Cholerick or Ill-natur'd strike them with that which may either kill them or else cripple or maim them and perhaps out of an immoderate Anger or being weary of them murder them on purpose And Fathers being more apt as having oftner occasion to be angry with their Children than their Children with them it is evident to me that in the state of Nature where there is no Magistrate to keep the Father in awe Fathers will be as apt to kill or maim their Children as Children their Parents And if the Fathers as I said before are intended for the good and preservation of their Child and that where their Right ceases the Childrens Right to preserve themselves takes place It seems to conduce more to the general good of Mankinde that the Children should make use of this last refuge of defending themselves when they cannot otherwise preserve their Lives and Members than that Fathers should have such an absolute Right to deal with them as they pleased without any power in the Children to resist or defend themselves So likewise Fathers being so much older understand their own advantage better than their Children and being somtimes more ill-natur'd and often by reason of their Age more covetous than they may be tempted to sell their Children for Slaves whereby they may fall into a condition worse than Death itself and may not the Son then endeavour to run away or use all lawful means possible to escape so great a misery Or if the Father will keep his Son as a Slave all the days of his life without any hopes of ever being free For when the Father dies the Son according to this
Authour is to be Servant to his Eldest Brother or to whomever else his Father pleased to bequeath him Is not the case the same And as for the quiet of the Family which is supposed to be preserved by the Sons absolute submission rather than his resistance in any circumstance I think it would rather increase Dissentions by encouraging of Fathers to use their Power over their Children not as Reason but Drunkenness or Passion may impel them Whereas this Right of Children in defending their Lives and not being obliged to give them up at their Fathers pleasure will rather make Parents act moderately and discreetly towards their Children when they know they are not obliged to stay or bear with them upon other conditions than that they may enjoy their Lives in safety and the ordinary means thereof with some comfort Not that I give Children any Right as I said before to disobey their Parents or resist them upon every slight occasion but rather to bear with their Infirmities as far as it is possible And to suffer divers Hardships and Inconveniencies from them rather than to resist or leave them considering the great obligation they owe them So that I do not allow this Remedy but in case of extreme Necessity yet of which the Sufferer only in the state of Nature can be Judge since in that state where there is no Umpire without both their consents but God only every man is Judge when his Life is in danger And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission without any respect to this Right then it would be his duty to give himself up to be robb'd or kill'd by any one who had the wickedness to attempt it because himself being innocent may go to Heaven and the other being guilty of an intent to rob or murder may be damned if he be killed And besides it would more conduce to the preservation of Mankinde that but one man should be lost whereas by resistance they may both perish Yet I suppose no man is so sottish as to hold he ought quit his own preservation in these cases or if he do hold it for discourse sake I am sure he would not be so mad as to observe it For this were such an Argument as to hold Because some men may abuse that Law of Self-preservation to another mans destruction Therefore it were unlawful to defend a mans self at all As for the Examples of those Nations and Common-wealths who have permitted Fathers to exercise a Despotick Power over their Children The Law of Nature or right Reason is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth which are often different and contrary to each other Therefore as to the Jewish Law though I will not say it was contrary to the Law of Nature yet it was extremely rigorous and severe in all its dispensations and does not now oblige Christian Common-wealths in this particular as in divers others much less in the state of Nature And as for the Romans they saw the inconveniencies of this Absolute Power and retrenched it by degrees until it came to be no more than now with us and in most Countreys of Europe So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children depending upon the Roman and Jewish Law may be easily answered from these grounds Having as I hope clear'd this main point of Paternal Authority and of Natural Obedience without giving an extravagant power to Parents on the one hand to abuse their power or a priviledge to Children on the other side to be stubborn or disobedient to their Parents If then this Paternal Authority extend farther than I have seated it I shall own my self beholding to any Friend of the Authour 's or his Opinions to shew me my errour But if they cannot I desire they would consider whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution can extend farther than the natural Authority of Fathers from whom they are supposed to derive it and on which it is founded And if it appears that Princes have such Power as our Fathers then all that the Authour hath writ on this subject signifies just nothing Therefore I shall now proceed to examine the rest of his Principles and shall I hope prove that supposing this Fatherly Power as absolute as the Authour fancies yet that his Divine Absolute Monarchy cannot however be derived from thence The Authour seems to think it a Question very easie to be answered If any one asks what comes of this Right of Fatherhood in case the Crown Fatherly power escheat for want of an Heir whether it fall to the People Patriarch P. 20. or what else becomes of it To which his Answer is That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir for an Heir there is always If Adam were still living and now were ready to die it is certain that there is but one Man and but one in the world who is next Heir although the knowledge who should be that one Man be quite lost So that this fine Notion signifies nothing now for Adam being dead and his right Heir not to be known it is all one as if he had none since for ought I know to the contrary the Authors Footman may be the Man But to help this the Author hath found out a couple of Expedients such as they be The first is Directions for Obedience p. 69. That an Vsurper of this Power where the knowledge of the right Heir is lost being in by possession is to be taken and reputed for the true Heir and is to be obeyed by them as their Father And if this will not do he gives us another and tells us Patriarch p. 21. The Government in this case is not devolved upon the multitude but the Kingly power escheats in such cases to the Fathers and independent Heads of Families For every Kingdom is resolved into those parts of which it was first made Each of which we will examine in their turn To begin with the former let us see if it be so easie a thing as the Authour makes it to know who was Adam's or any Monarch's right Heir setting the Municipal Laws of the Country aside so that the People cannot be excused of wilful Ignorance or Negligence if they loose this knowledg Where by the way I observe that as easie a thing as it was to know who was Adam's right Heir and upon whom by the Laws of God and Nature the Crown is to descend upon the Death of the Monarch yet he no where positively answers this important Question For sometimes he is to claim by descent as in this instance of the Heir of Adam sometimes by his Father's last Will as in the case of Noah's Sons according as the Examples out of
have survived his Father If he say that Adam might leave it to Seth by Will this is gratis dictum and it lies upon him to prove that Adam made a Will or if he did how it could bind his true Heir If he say that Seth ought to succeed and govern his Brethren as being nearer in bloud to Adam what reason was there that the eldest Son's son should be punished and lose his Birthright for that which was not his fault but misfortune viz. that his Father was murdered before his Grandfather died Nor could Seth claim being elder and consequently wiser than his Nephew for his Nephew must be older since Seth was not born until after Abel was killed But if it be affirmed that the eldest Son of Abel ought to succeed and represent his Father I ask by what Law If it be replied that it is to be supposed that Adam if he had made a Will would rather have had his Grandson succeed him than his younger Son this is gratis dictum and were to affirm that the Right of governing is bequeathable which I have already confuted But if it be said that this Son of Abels should succeed because he represents his Father I would ask them by what Law this Right of Representation should take place before propinquity of Bloud or how could the Fathers expectation onely confer a Right to his Son in that which the Father was never possessed of So that there being equal Reasons on both sides and neither Law nor Precedent in the case there remained no way to decide this Controversie but either Combate or the Judgment or Arbitration of the rest of Adam's Descendants I suppose the Author will not allow the former sufficient to confer a good Title since the best Title might have the worst success in that Appeal to the Sword If he allows the latter then this hereditary Monarchy of Adam became Elective and depended upon the Will of all the Heads of the Families which descended from Adam For it is not likely in so doubtful and material a point as who should govern any of them would lose the priviledge of giving his Vote And if so this Right of Succession depended upon their Wills which might give it to which of the two Competitors they liked best and this being once done might for quietness pass into a Custom or Law for the future And that this Right of Representation where the Son dies before his Father cannot be decided by the Law of Nature or Reason alone is evident in that divers Nations or distinct Tribes of People have had different Customs about it and have established this Right of Succession divers ways For though the Roman or Civil Law allow of this Right of Representation yet the Germans and all Nations descended from them did not admit it until very lately See Grotius de J. B. Li. cap. 7. which shews there is nothing but Custom in the case And upon this pretence the League in France admitted the Cardinal of Bourbon King by the name of Charles the X before his Nephew the King of Navar his elder Brothers Son who died before him And that this difficulty who shall succeed the Uncle or the Nephew hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom which is but the continued Will of the People may appear by those different Judgments that have been in all Ages made on this matter for when there arose a Controversie between Areus Son of Acrotatus eldest Son to Cleomenes King of Lacedaemon and Cleomenes the second Son of the said Cleomenes the Senate adjudged the Royalty for Areus against Clomenes But in Spain Mariani l. 13. c. 3. after the death of Alphonso the V King of Castile the States of Spain acknowledged his younger Son Sancho to be King and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son though he had the Crown left him by his Grandfathers Will. And when Charles the II King of Sicily died Vicerius in Vita Henry 7. and left a Grandson behind him by his eldest Son surnamed Martel and a younger Son called Robert the matter being referred to Pope Clement V he gave judgment for Robert the younger Son of Charles who was thereupon proclaimed King of Sicily And it seems Glanvil who was Lord Chief Justice under Henry II makes it a great Question who should be preferred to the Crown the Uncle or the Nephew So that it was no strange thing for King John to make himself King before his Nephew Arthur since it was a moot point among the Lawyers of that Age who ought to succeed And where no Power could intervene it was decided by War and sometimes single Combats which Historians mention to have been waged between Uncles and Nephews contending for the Principality and not onely in this case but in all others where the Succession of the Empire is not settled by such Laws or Customs it lies continually liable to be disputed between the Sons or Grandsons of the last Prince nor can ever be decided but by the Sword Of which there is an Example in one of the greatest and most absolute Monarchies in the world viz. the Empire of the Mogul where for want of settling the Succession at first by a positive Law See Bernier's Travels 1 part and Tavernier Lib. Sir Tho. Row's Embassie Purchas part Terrey's Relation of Indostan and making the Raias Omrahs or great Lords give their consent to it and swear to observe it and so have made and ascertained it as an inviolable Custom as it is in the Ottoman Empire now upon the death of an Emperour though he declare by his Will who shall be his Successor yet the Grandees who are so many petty Princes and lead the People under their Command after them as they please do not think themselves at all obliged to observe it much less to set the Crown upon the eldest Sons head but every man is for that Son of the last Mogul whom they like best that is him they conceive will suit best with their interests and designes Nor do the Brothers think themselves at all obliged to yield to their eldest Brother whom they are assured will put them to death or make them perpetual Prisoners So that every one provides for himself and makes his Party as strong as he can by Gifts and Promises among the Grandees against his Fathers death Nay lately this prize hath been played among the Sons even in their Fathers life-time as in the case of the late Sha-Jehan who lived to see all his Sons killed and his person made a prisoner by his youngest Son Aureng Zebe who is for ought I know Mogul at this day And if any man thinks this onely an Evil peculiar to this Empire and not to others let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
Commonwealth do onely owe a passive obedience to its Laws But to let you see more plainly that upon such a devolution of the Government as the Author grants not onely the Masters of Families as Fathers ought to have Votes but all others that are at their own dispose I will ask any of his opinion what he thinks of a single man living in a house alone or with a Wife without either Children or Servants or perhaps boarding in another mans house for their money why they should not have Votes as well as those that are his independant Fathers and Masters I can see no reason nor I believe they neither So though the Author by the words Supream and Independant Heads of Families seems to exclude all Sons from having Votes whilst their Fathers are alive although they are married and have separated into distinct Families yet since I have proved that neither Paternal Authority nor Filial Subjection is absolute or perpetual in the state of Nature into which the Commonwealth is by the death of the Prince now supposed to be resolved and if it were otherwise yet unless they will void all those Laws and Constitutions that have been before settled both for descent of Inheritances and the distinguishing of Property So that if these Laws stand in force during this interregnum unless they will fall to absolute confusion these Sons so making divers Families and having Estates distinct from their Fathers ought likewise to have Votes in the Government upon the Authours own principles since the Laws of the Country have set them free from all Paternal subjection more than what the Rules of Piety and Gratitude oblige them to And as for such Sons as though of mature age yet remain as Servants in their Fathers Families and so are under a greater subjection than those that are separated from it I see no reason why they may not appoint their Father as him they could best trust to vote for them and represent them in the choice of a Governour and then they are as much obliged as any man can be by the act of a person whom he hath impowered to act for him or as these Fathers of Families would be by Representatives of their own chusing it being morally impossible if this devolution of the Government should happen in a populous Country for all the Authors independent Heads or Fathers of Families ever to meet in Person to chuse a King these being vastly numerous and divided from each other at great distances Anarchy of a mixt Monarch p. 269 So that all the Author's Objections against a mixt Popular Election will prove as strong against this of Fathers alone For how except by some secret miraculous instinct should they all meet at one time and place What one Head of a Family or Company less than the whole Body of these Fathers of the People can have power to appoint either time or place of Election where they are all free and independant by Nature and without a lawful Summons it is most unjust to binde those that are absent So neither can the whole Body of the Fathers of Families summon it self One man is sick another is lame a third is aged and a fourth though a Father of a Family may be under years of discretion or not in his right senses and many more may have business of their own which they cannot leave to run two or three hundred miles up to the chief City to chuse a King So that either the People may elect or else his Fathers of Families cannot for the same reasons And if the major part of these Fathers should agree to chuse Representatives how can this Agreement of the major part bind the minor that did not consent Patriarcha pag. 44. Where the Arguments against Elections by a major part are proposed at large since according to the Authors principles in Assemblies that take their original from the Law of Nature no one man or multitude can give away the Right of another So that though the Author seems to have been so good-natured as to have given these independent Fathers of Families a Power in this case of Escheat to chuse a Governour yet all this signifies nothing since they can never all meet or agree to chuse Representatives They are still like to be his Slaves who can make a Party strong enough to seize the Government and usurp an Authority over them Whom yet they must obey since he either is or represents the right Heir of Adam and so no body hath a better Right than himself who is in by the permissive Will of God which how long it will last no body can tell And God does but adopt Subjects into the obedience of another Fatherly Power or else they must fall into a down-right Anarchy and every Father of a Family may set up for an absolute Prince But to return whither we have digressed for I have said this onely to shew that this Authors principles as well as those of others contradict themselves in this subject and either these Fathers of Families are the People and consequently cannot according to this Authour ever meet or agree to chuse a Prince or else the whole People may as well But since it may be objected that it does not serve to find out truth or settle the Question in hand barely to recriminate and shew the same flaws in his Principles as he finds in those of others Patriarcha p. 41. let us see if his Objections against Bellarmine and Suarez and all those who place Supream Power in the People be such terrible things that the poor Jesuits are absolutely run down in this Dispute He therefore first asks If their meaning be that there is but one and the same Power in all the People of the World so that no Power can be granted except all the men upon the Earth meet and agree to chuse a Governour To which Suarez answers That it is scarce possible nor yet expedient that all the men in the world should be gathered together into one Community It is likelier that either never or for a very short time this Power was in this manner in the whole Multitude of men collected together but a little after the Creation men began to be divided into several Commonwealths and this distinct Power was in each of them To which our Author replies That this Answer of scarce possible nor yet expedient c. begets a new doubt how this distinct Power comes to each particular Community when God gave it to the whole Multitude onely and not to any particular Assembly Can they shew or prove that ever the whole Multitude met and divided this Power which God gave them in gross by breaking it into parcels and by appointing a distinct Power to each Commonwealth Without such a Compact I cannot see according to their own Principles how there can be an Election of a Magistrate in any Common-wealth but a meer Vsurpation upon the Priviledge of
in their Council in time oâ— Peace and shall not have any power more than that unless in time of War he then is the Mouth of the Senate in time of Peace and their General in War And of this kind was the Lacedemonian King And in modern times the ancient Dukes of Venice when they went out to War And so are those Caciques that the Indians in the Caribbeé Islands and Brasile chuse to be their Leaders in War but in Peace have little or no power So likewise these Masters of Families or Freemen agreeing with him that they would chuse for their Prince what Power he should exercise or they would confer upon him as suppose that he should not condemn any of them to death unless many of the same condition with himself find him guilty or that he should not make any Laws or levie Taxes for the publick Charges of the Commonwealth but what â—hey propose to him and that he swear for himself â—nd his Posterity to observe these Conditions There will then be produced a Limited Kingdom consisting â—f a Prince as the Head of all Civil Power and of an Aristocratical or Democratical Council according as that Assembly consists either of the whole or but of the People And that such a Government is no Soloecism in Politicks I shall prove farther when I come to make some Observations upon this Authors Treatise of the Anarchy of a mixt Monarchy Nor can any man imagine from the Priviledges of the Nobility and People that â—re found to have been almost the same in all these Northern Kingdoms of Europe as ancient as the Government could ever have owed their Original to any other Cause than the Original Constitution of the Government And if these Fathers of Families may â—imit the power they confer upon their new Prince upon this Escheat of the Soveraign Power and retain some of it to themselves they might do the same upon the first institution of the Government either as when so many Masters of Families who had before lived apart and without any dependance upon each other did agree in the state of Nature to erect a Civil Government among them or else when a Colony or Army of men was led out by some particular Captains or Leaders for the conquest of a foreign Country which when conquered and settled every free Souldier in the Army would certainly have as good a Vote in the crcating of their General to be their King as their Captain or Colonel since they all were at first but Volunteers and followed these Captains not from any Civil Authority they had over them but by their own consent But since the Author will by all means have it that these Fathers of Families must needs transfer their power upon one man absolutely who must be endued with all this power without any reservation I shall now give you his best Arguments for this absolute Monarchy and try whether they are unanswerable or not Patriarch p. 49. His first reason for it is built upon Bellarmine's Concession That God when he made all mankind of one man did seem openly to signifie that he rather approved the government of one man than of many This had been somewhat of an Argument if Adam's power had been purely Monarchical over Eve and all his Children and Descendants as it was not but if it had Gods bare Approbation lays no Obligation for all mankind to practise it now any more than it is a good Argument to say that it is now not onely lawful but necessary for men to marry their Sisters because God approved of that way of propagation of mankind at first Secondly God declared his Will when he endues not onely Men but all Creatures with a natural Propensity to Monarchy neither can it be doubted but a natural Propensity is to be referred to God who is the Author of Nature What he means by a Propensity in all Creatures to Monarchy I understand not neither know I any Monarchy among Brutes besides that of the stronger over the weaker and in that Authors sence the master-Buck in a Herd of Deer the master-Bull in that of Cows and the Bell-weather of the Flock are all of them so many Monarchs endued with Fatherly Authority over the Herd or else which is as good are Usurpers of that Authority and so the Herd are all bound in Conscience to submit to them As for the Monarchical Government of Bees whether under a King or Queen I doubt it would pose even those Vertuosi who have glass-Hives to prove their Government an absolute Monarchy both in War and Peace and that none of the Princes of the Bloud or other Bee-grandees have any share in it or that never a Bee in the Hive dare place any Honey in the Combs or eat a drop of what â—e hath gathered her self without the Queens orders â—ut if the Government of Bees be Monarchical and that â—ere a good Argument for Monarchy then that of â—mmets might be so for a Democracy since most Naâ—uralists not being able to distinguish any Kings or â—rinces in the Ant-hill do suppose them to be a Comâ—onwealth But Raillery apart I would be glad to â—e fully satisfied whether Mankind naturally incline to â—e governed by an absolute Monarchy It is true the â—reatest part of the Eastern Governments in the world â—e absolute Monarchs but the Author cannot bring his as an Argument of any Propensity according to his â—rinciples For if all of them were founded upon the â—ight of Fatherhood or else the Vsurpation of that Right his proves rather a natural Obligation to this kind of â—overnment than a Propensity for an Obligation â—nnot be drawn from a bare Propensity Since then 〈◊〉 man would have an Obligation to drink Wine beâ—use as soon as he tasts it he hath a Propensity to it â—nd perhaps may take so much of it until he be drunk â—nd then sick and so this Propensity may turn to a â—urfeit So some Nations as Rome for example â—aving taken a Cup too much of Monarchy this Surâ—it produced an absolute aversion hatred and a proâ—ensity to the contrary extream But as the Eastern â—ations have inclined to an Absolute so have the Weâ—ern either to Commonwealths or limited Kingdoms â—itness the Grecians of old and the modern Kingdoms â—f the Gothick Model as also those petty Governments â—f several Nations in America His third Reason is â—hat God confirmed Monarchy to be the best Government 〈◊〉 that Commonweal which he instituted among the Heâ—rews which was not Aristocratical as Calvin saith â—ut plainly Monarchical If the Author here means beâ—re they desired a King it is true that God himself was their King and govern'd them upon extraordinary occasions by men divinely assisted or inspired 〈◊〉 and such were the Judges whom God raised up to deliver them from the slavery and oppression of their Neighbours and being looked upon as having a great portion of the Spirit of God did likewise judge the People that is decide
difficult Cases by way of Appeal in time of peace But that the Government was purely Aristocratical this Author himself confesses even when he denies it He tells us p. 50. at the time when Scripture saith There was no King in Israel but that every man did that which was right in his own eyes even then the Israelites were under the Kingly Government of the Fathers of particular Families for i◠the consultation for providing Wives for the Benjamites we find the Elders of the Congregation bare the onely sway Judg. 21.16 Now what is an Aristocracy if this be not viz. an Assembly of the Elders or chief of the Fathers that is the best men meeting consulting and resolving of publick business What power these Fathers of Families had at home is not declared whether it was independant or else did submit to the government of its own Tribe But that it was Aristocratical is apparent if Josephus understood any thing o◠the History or Antiquities of his own Country which he undertook expresly to write of For Antiq. lib. 4. cap. he brings in Samuel speaking to this effect to the People desiring a King An Aristocracy is the best Government neither should you require any other sort of Government But as for the Kings which God gave them afterwards there is nothing to be drawn from thence for this Authors advantage for he himself tells us there is no use to be made of it Vid. His Observations upon Milton p. 20. For speaking against Milton's sence of the words in Deut. 17.14 he says Can the foretelling or the forewarning the Israelites of a wanton wicked desire of theirs i. e. of a King which God himself condemned be an Argument that God gave or granted them a Right to do such a wicked thing Or can the narration and reproving of a future Fact be a donation and approving of a present Right or the permission of a sin be made a commission for the doing of it So that it seems sometimes when it makes against the Author's sence God is so far from approving Kingly Government that it is a sin for the People so much as to desire it But it is likewise as great a Question whether after Kingly Government was established it was likewise absolute so that the King might put any body to death right or wrong For we find 1 Sam. 14.45 the People rescued Jonathan out of the hands of his Father Saul and would not permit him to be put to death for his breach of the rash Vow which Saul had made nor is it imputed to the People that is the Army for a sin Neither could Ahab take away Naboth's Vineyard and his Life together but by colour of Law and a legal Tryal Neither could King Zedekiah save Jeremy the Prophet from the power of the Princes who cast him into the Dungeon for Jer. 38. v. 5. Zedekiah said Behold he is in your hand for the King is not he that can do any thing against you His fourth reason is that God in Scripture mentions not nor takes notice of any other Government than Monarchical This is but a Negative Argument at best the Scriptures not being written to teach us Politicks but to declare God's Will and to shew us his merciful and gracious dealing with the Jews notwithstanding all their backslidings and rebellions against his Commandments His fifth reason is that Aristotle saith in his Ethicks chap. 11. That Monarchy is the best form of Government and a Popular Estate the worst The words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which though true does not enforce any Obligation to the one more than the other for though a man be obliged to his own preservation yet he himself is the onely Judge of the means and if he erre and use the worst means for the best they are not in fault if they acted as well as they could and to the best of their knowledge for that end Neither does it follow that there are no more sorts of Government than these two to be chosen Nor is it any better Argument that the world for a long time knew no other sort of Government but onely Monarchy and that the Platforms of Commonwealths were hatched amongst a few Cities in Greece and that they were first governed by Kings until the wantonness ambition or faction of the People made them attempt news kinds of Regiment But let any one read the Greek Histories and he will find the cruelty and tyranny of Kings did more frequently give occasion to the People to run into Commonwealths than either the ambition or faction of the People And as for the antiquity of Monarchy the alteration of it rather makes against him since the whole Body of a People seldom alter a Government unless they find themselves hurt by it and that it proved inconvenient for them I shall not dispute which is the better Government Monarchy or Commonwealth since in my own judgment I incline to the former where the Monarch is good And though I will not affirm as the Author does Directions for Obedience p. 71. That even the Power which God himself exerciseth over mankinde is by the Right of Fatherhood as he is both King and Father of us all Since besides his absolute power and his being the sole cause of our production he is also endued with that infinite Wisdom and Goodness that he still orders all things for the good of his Subjects and so hath besides his Power the highest Right to govern as the best and most perfect being So likewise Monarchs as far as they imitate the divine Wisdom and Beneficence have the like Right to be called Gods Lieutenants Nor shall I trouble my self as the Author does p. 67. and so on to 73. to compare the Mischiess and Inconveniencies that have been found in absolute Monarchical and Popular Government there being various Examples both of Cruelty and Injustice in both and I think they are both the aptest of any sorts of Governments to run into Extreams and I know not whether there have not been found out a Regal Government mixt with somewhat of an Aristocracy or Democracy which if truely observed were freest from the inconveniencies of either But this Author is so full of the mischiefs of Commonwealths that he sometimes mistakes in History and makes those Disorders to arise from the faults and licentiousness of the People which proceeded indeed from the Usurpation of their Power Thus he makes it the height of the Roman Liberty that its Subjects might be killed by those that would and sets forth the Tyranny of Sylla as an effect of the Roman Freedom when indeed it was rather an effect of the absolute Monarchy usurped by Sylla during his Dictatorship So that Dionysius Halicarnasseus gives us his judgment of those actions of Sylla in these words Lib. V. circa finem I would onely shew that for these wickednesses the name of Dictator became hateful for all things seem good and profitable onely
ought to be subject to the Husband in all things tending to the good and preservation of her Children and Family or else the Family would have two Heads as I said before But it does not therefore follow that he hath such a despotick power over her that she may in no case judge when he abuses his Fatherly or Husbandly power For suppose the Father of a Family in the state of Nature should in a mad or drunken fit go about to kill or maim herself or one of his innocent Children can any body think this were Rebellion against the Monarch of the Family for the Wife to rescue her innocent Child or self out of his hands by force if she could not otherwise make him be at quiet Or suppose the Husband in such a fit should command his Wife to deliver him a sum of money which she had in her keeping when she was morally sure that he would presently play it or otherwise squander it away will any rational man affirm that a Wife may not deny to deliver her Husband his own money in such circumstances So that it is evident she never so absolutely submitted her will to his as not to reserve to her self the faculty of a rational woman as not to judge when her Husband would evidently destroy her self or Children or absolutely ruine the Family when he was not in a capacity â—o govern himself So likewise if the Husband command her to do any thing against her Conscience or â—he Laws of Nature she is not obliged to obey him For though the Wife in all matters peculiar to the Marriage-bed and in all other things that relate to the â—ell-ordering the Family is obliged to submit her will â—o that of her Husband yet it does not therefore folâ—ow that she is an absolute Slave to be commanded or â—ompelled in all actions not tending to this end And 〈◊〉 it be objected that as Commonwealths cannot be â—overned without some coactive Empire so Marriage â—annot well subsist by a bare Compact or the power â—f Friendship alone to oblige the Wife to her duty in â—ase she prove disobedient As I do not deny but persaps it may be lawful for the Husband as Head of the â—amily in some cases if the Wife prove palpably obâ—inate and disobedient to his reasonable commands â—nd will not hearken to Reason to compel her by corâ—ection and the rather since Christ hath taken away â—he liberty of Divorce whereby a man might be rid of 〈◊〉 cross Wife as of an ill Servant if she did not â—nend her manners and therefore he hath no way else â—… mend her if she will not do her duty by perswasion â—nd fair means Yet this Power is very rarely to be â—sed since it is onely some women that either need or â—ill endure to be so handled and all discreet and raâ—onal Wives as well as Servants will do their duty â—ithout it Yet this Example of the absolute Obediâ—ce of Subjects in a Commonwealth does not agree with that of a Wife to her Husband as Head of the â—amily since Families especially those who consist â—f a good number of Children and Servants may â—ave a twofold end the one peculiar to it self the oâ—her common with that of Civil Governmments The â—ommon end is considered in that defence and security resulting from the conjunction of many into one Body in which although an absolute Empire be necessary yet since the Wife being but one weak woman can contribute but very little to this end it may very well suffice to the peace and unity of the Family if she be tyed to her Husband onely by a simple Compact by way of Friendship without any despotick power over her But the peculiar ends of Matrimony which are the procreation and breeding up of Children and providing things necessary for the Family may well enough be obtained although the Husband be not invested with this despotick power which supposes that of life and death or other grievous punishments and though the Wife be tyed by her Compact only and the Bonds of Amity of which Compact the Husband being the Principal does imitate that of an unequal League between Civil States in which the Husband being the Head the Wife owes him all due respect and observance and he on the other side owes her maintenance and protection Therefore I am not of the opinion of some who will have the Husband in the state of Nature to be endued with an absolute power of life and death over his Wife and that in this consists the very quintessence of Marital power because forsooth that all Empire when it is in its proper subject and neither is exercised precariously by any man nor circumscribed by any superiour Power does always import jus vitae necis over the Subject But this is not so for a man in the state of Nature may become part of anothers Family and yet make iâ— in his Bargain that the Master of this Family shall not put him to death or misuse unless it be for Crimes that deserve death by the Law of God or Nature or become a publick Enemy And the Supposition is false which first supposes such an absolute Empire to be in the Husband as in the proper Subject neither is there any absolute power of life and death necessary to the ends of Marriage for if the woman commit small faults and will not be amended the Husband may correct her if greater as suppose Adultery he may put her away and likewise chuse whether he will provide for the Children which he hath reason to believe he did not get himself If she murder her Children or commit any other abominable sin against Nature she may justly be cut off from the Family and punisht as a common Enemy to Mankind and so she might be if she had not been his Wife but Servant or other Member of the Family Yet I do not affirm that this despotick Empire or power of life and death is against the Laws of Nature or inconsistent with the state of Matrimony any more than the absolute power of a good Prince should destroy the love of his Subjects towards him or the reverential fear we ought to have of God destroy our love of him Therefore as I have allowed that the woman may confer such a power on her Husband over her self in the state of Nature so I grant this absolute power may likewise be conferred on Husbands by the Civil Laws of particular Common-wealths Thus it is murder for a man in England to kill his Wife taken in the very act of Adultery but it is not so in Spain Italy and most other Countries if he kill his Wife if he find her alone in another mans company though it cannot be proved they have done any thing clse to deserve it Having now gone over the whole power of the Head of a separate Family as a Father Husband and Master and proved that no man is a Slave by Nature or without his
own Consent as a Slave by Compact or without his fault as a Slave taken in a just War and that no Master of a Family hath such Right in the person of one of these but that he may do him injury if he take away his life or punish him without cause and that such even such a Slave may lawfully set himself free if the Master do not perform his part of the Bargain And having in the last place shewn what power a Husband hath over his Wife in the state of Nature and from whence it takes its Original it is now time to answer those Arguments and Objections made by this Author and others That the Prince or Governour so elected by the Fathers of Families or Frcemen at their own dispose which I hold to be equivalent to the whole People hath not onely his Nomination from them but that it is from God alone that he derives his Soveraign Power and Authority with which he is endued upon his first acceptance of the Supreme Power and if he should accept it with any limitation it were to restrain that Power which God hath conferred upon him by his being made the Supreme Magistrate and would hinder him from performing that great Duty as he ought In answer to which I have already proved that no such unlimited Power was conferred by God to any private man in the state of Nature as a Father Husband or Master and therefore could not be given to any Civil Soveraign who is supposed to have no more power than the Father of the Family had before A second Objection is That no particular man hath in the state of Nature any power over his own life and therefore cannot have any over the life of another man and if one man hath not this power neither have the People which is but a universal consisting of singulars any such power and consequently cannot confer it on any other man therefore every Prince must have this Soveraign Power of life and death not from the People but from God In answer to which I shall first of all deny the consequence that because God hath not given a man a power over his own life therefore he can have none over the person of another For God gave man a Right to preserve but not to destroy himself and so cannot dispose of his own life whenever he is weary of it Therefore since the first Law of Nature is Self-preservation it is lawful for a man to use all means conducing to this end that do not prejudice another mans Right in his particular life or happiness so that if any man assault me in the state of Nature I may defend my self and consequently kill the Assailant if I cannot otherwise escape But perhaps it will be replyed that the intention here is not principally to kill the man if it may be otherwise avoided and that this Right is given men onely to preserve their lives from being taken away at another mans pleasure but that no private man hath power to revenge an injury done to another or ones self in the state of Nature with death but God or him to whom God hath committed this power according to St. Paul Rom. 12.19 Dearly beloved avenge not your selves c. I shall prove that this place does not destroy that which I maintain for I grant that all Revenge taken as the satisfaction some men take in the very doing evil or prejudice to another is unlawful even by the light of Nature Secondly Likewise where Magistracy is instituted who is to bear the Sword for the punishment of evil doers I grant all return of like for like to be unlawful since he is appointed as a publick Judge to right those that are injured and maintain the common Peace But no Text forbids men to punish injuries done either to themselves or those they have a concern for in the state of Nature for this is not Revenge but a natural Punishment to deter men from committing violent and unjust actions that disturb the peace of humane Society since the wrong doer declares himself thereby a publick Enemy to all Mankind And on this account Cain feared that not his Father onely hut every one that met him would slay him that is punish him for the death of their Brother or Kinsman And if this were unlawful then all War must be so in the state of Nature and Princes being always in that state in respect of each other could never make any War for the gaining of Rights usurped or to punish for Injuries received So that this power which a man in some cases hath over the life of another is onely given him by God for the common good and preservation of Mankind of which every particular person is a part and so this power conferred upon the supreme Magistrate is no more nor extends higher than that though there are more things requisite to the publick peace and safety of a Civil Government than are to humane Society in the state of Nature And from hence do supreme Powers derive their Right of making positive Laws and ordaining higher Punishments for Offences than the Laws of God or Nature do expresly appoint as for Thest Coining and the like Nor is the Antecedent true that no man in the state of Nature hath a power to dispose of his own life For though it may be true that no man hath a Right to make away himself whenever he dislikes his being here yet it does not therefore follow but that for a greater good to the publick any man nay a Prince himself may lay down his life for his Peoples good And therefore I doubt not but the Example of Codrus the Athenian King was not onely lawful but highly commendable in facrificing his life for the good and safety of his People supposing that all their Estates and Liberties depended upon that one Battel much more for a private man to lay down his life to save some publick person highly useful to humane Society And this much does the Apostle Paul himself seem to admit Rom. 5.7 when he says For scarcely for a righteous man will one die yet peradventure for a good man some would even dare to die Where by a righteous man Expositors understand one who had sufficiently done his duty in an ordinary private capacity yet contributed little to the publick good whereas by a good man is understood some person highly useful and beneficial to others and for such a one a man may not onely dare to die but actually lay down his life if occasion be A second Objection is That if the supreme Magistrates Authority be derived from the People then this Authority must be either inferiour or superiour to it If inferiour how can the People be commanded or governed by that which is inferiour to its self If superiour how can the Effect be more noble than the Gause since neither any particular Person nor the whole Multitude had Soveraign Authority and therefore
could not confer it upon others To this I answer That this Soveraignty being but the submission of the Wills of the Persons that institute it to the Will of him on whom they confer it that he should thereby make use of all their Powers for the common good of them all and being therefore not any physical but moral Quality may be produced in another by their Compact who had it not formally in themselves before As from the Voices of divers men singing together there may arise a Harmony which was not in their particular Voices alone though each of these Voices must be musical to produce it So every particular person having before in the state of Nature a Right to preserve himself and to govern his own actions when many men joyn together to confer this care upon one or more there arises a Political Power indeed more noble yet of the same kind with the other for if the singulars had it not before in some measure the universal could not have it all So that it is absurd to alleadge that Soveraignty is not derived from men because it cannot be found among a mans natural powers or faculties in the same manner as it is in the supreme Magistrate as if there were no other than Physical Qualities in nature yet even in Physicks admitting Epicurus Hypotheses of Atomes to be true there will arise from their conjunction that quality in bodies which we call divisibility and yet each particular Atome considered apart being indivisible had it not alone But to answer a distinction they use in this matter between the immediate efficient and the immediate constituent modus of Soveraignty they confess indeed That by this Election and Transferring of the Power of the Fathers of Families the Civil Soveraign is declared but that it is from God alone that he receives his Soveraign Authority If they mean by this transferring of Fatherly Power any absolute Power which God hath by any Law divine or natural conferred upon the Fathers over their Children and Families I have already proved that this Fatherly power is neither absolute nor assigneable to another If they mean any other Soveraignty distinct from this then they must needs conceive this as an abstracted Ens or Physical quality which is immediately produced by God and conferred upon the person of the Soveraign at his Election or Declaration but I see no reason of constituting here more Causes than needs as one efficient and the other secundary or why God should do that by an extraordinary unintelligible way of acting which he may perform by a plain and easie one since it is contrary to his other methods of acting in the course of Nature For frustra fit per plura quod potest fieri per pauciora and supposing as I have already proved and as divers who are sufficiently for Kingly Power do admit that the People or Heads of Families have a freedom of setting up what kind of Government they please either Monarchical or other and if there were none other but Aristocracies or Democracies in the world I would fain know what then would become of this notional Majesty or Soveraignty Now if any man should ask them where this abstracted Soveraignty exists before it finds a King to settle upon and whether it be a Substance or an Accident if the latter how it can subsist without its Subject or if the former when it was created whether it was at the beginning of the world or like the Souls of men creando infunditur infundendo creatur or whether there be one single Soul of Soveraignty diffused all over the world which being distributed does as it were animate so many Kings Also whether this Majesty dies with the Monarch or else survives him as the Soul does the Body and by a new Metempsychosis immediately transfuses it self into his Successour If the Gentlemen of this Author's Principles please but to consider these difficulties I 'll undertake they will finde them as hard to be resolved as any the Author hath proposed about all the Peoples agreeing or being the cause of this Soveraignty But I will not deny that God is properly the original and efficient Cause of Soveraignty as of all good things and particularly of that power whereby every individual Freeman in the state of Nature hath a power to dispose of his actions for his own preservation and the common good of mankind And the particular powers of many men being put together constitute that which we call a Politick or Civil Power And therefore his last Objection is easily answered That if the People be any Cause of Soveraignty or Civil Power they must have received this power from God by which they can confer it on any other But it can no way be proved that they received it from God for God having as I said imprinted upon mans Soul such a tender care of his own good and preservation and hath likewise enjoyned him to preserve Peace and Order amongst men in order to the common good and preservation of mankind and hath likewise given him reason to find out all means necessary for this end amongst which the constitution of Civil Government must be reckon'd as the principal who can doubt but the faculty of constituting of Civil Government likewise proceeds from God the Author of Truth and giver of all good things Thus the invention of Cloaths Fire and Houses proceed from God though they were found out by man as his Instrument for a help to his necessities and natural weakness See Garcilasso de Vega 's History of Peru. And as in some Countries there is little or no need of Cloaths or Houses where the weather is always warm and serene so likewise God hath not imposed upon any People an absolute Obligation of constituting any Civil Government at all if they can live without it or at least of its exercising farther than they have need of Thus among the West-Indians in several parts of America See Lerius Hist Brafile cap. 18. History of the Caribbe Islands lib. 11. c. 19. where they have no distinct propriety in Land more than in their little Gardens and Cabins which in Countries so slenderly inhabited as those where Land is worth nothing every man enjoys by a tacite consent a living upon Venison Fish or other Animals and Fruits which the Woods produce they need no Chattels nor Dishes but a few Earthen-pots or Cups of Calebasses besides their Bows and Arrows and Fishing-tackle which every man knows how to make for himself So likewise having no need of Clothes and living but from hand to mouth and taking care onely to provide meer necessaries of life as they never have any superfluities so they have no Disputes about them and most of their things being easie to be provided they are seldom known to steal them one from each other and if a man catch another stealing any thing from him he will be sure to beat the Thief soundly or
no more to be said And as for the places out of St. Paul and Peter it not being my designe to write Divinity-Lectures I shall refer the Reader to the learned Commentators onely I shall take notice that his Assertion That these Apostles wrote their Epistles when the name of the Authority and People of Rome was still in being though the Emperours had usurped a Military Power and yet though the Government was for a long time in most things in the Senate and People of Rome yet for all this neither of the two Apostles take notice of any such Popular Government and our Saviour himself divides all between God and Caesar and â—llows nothing to the People All which though but a Negative Argument against Popular Government and â—o not conclusive yet the foundation of it is not true For though in Rome there remained a shadow of the Power in the Senate yet it was onely in such cases as â—he then Emperours committed to their judgment as â—he Kings of France do now make use of the Parliament of Paris onely to ease themselves of divers troublesome Causes or to take off the odium from themselves as in the condemnation of Sejanus and divers other Conspirators against them and yet they reserved the last Appeal to themselves in Cases both Civil and Capital as may be observed in St. Paul's appeal to Caesar and it is certain that the Roman Emperours in those times put men to death as often as they had a mind to it by their own power made what Edicts they pleased and appointed Proconsuls and Governours of Provinces as often as they saw it convenient and had all Money coined with their Image or Superscription and received and disposed of all Tributes publick Taxes And yet this Author doubts whether Tiberius Claudius or Nero were absolute Monarchs when they had all the Prerogatives that a Monarch could have I come now to the Author's Observations on Aristotle's Politicks It will be easie to prove that he makes use of him in all places that make for his Hypothesis but takes no notice of those that make against it a usual course among Writers especially in Politicks or Divinity Nor does he onely do this but likewise oftentimes perverts Aristotle's sence to make it subservient to his own of which I shall produce these instances In his first Quotation p. 3. he renders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the eldest in every house is King Whereas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not here signifie to be an absolute Monarch but to govern as a Master of a Family or chief Ruler a power faâ— short of that of an absolute Monarch And so Lambinus hath rendered it in his Version So likewise he hath misplaced these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and makes them to come in as a reason of what he says before concerning a perfect Monarchy whereas this sentence precedes the former and there are three or four sentences between them and therefore it cannot serve for a Consequent where it is really an Antecedent Nor is this sentence truely rendered by the Author For a King according to Law makes no kind of Government whereas he should have said No distinct species of Government for so are these last words to be rendered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or else he would make Aristotle contradict himself if after he had spoke so much in other * Vid. 3 Pol. c. 14. Speaking of the ancient Heroical Kingdoms places of a King according to Law he should make it no kind of Government at all So likewise p. 4. he misrenders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That of all Governments Monarchy is the best and a Popular State the worst Whereas any one but meanly skill'd in Greek knows that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not signifie Monarchy but Kingship and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is not a Popular Estate but an Aristocratical Commonwealth and in the same Chapter put in opposition to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I shall not trouble my self to inquire whether Aristotle distinguishes well between an Aristocracy and an Oligarchy or between an Oligarchy and a Democracy or whether he do well to exclude Artificers from any Vote in the Government These I shall leave to be defended by those that are greater admirers of him than my self onely I will see that if I can he have fair play and not that sence put upon him that he never meant And therefore I shall turn over to p. 12. where he quotes another place out of Aristotle's fourth Book cap. 13. That the first Commonwealth among the Grecians after Kingdoms was made of those that waged War From whence he would infer That the Grecians after they left off to be governed by Kings fell to be governed by an Army So that any Nation or Kingdom that is not charged with the keeping of a King must perpetually be at the charge of paying and keeping of an Army Which though it happened true during the corrupt Oligarchy of the Rump which was â—ut an armed Faction contrary to the sense of this Nation yet is not a necessary Consequent of all Commonwealths Neither is it the Author's sence in this place as may appear by what he says before and what â—ollows these words That he meant no such thing a standing Army in constant Pay being a thing unknown among the Greek Commonwealths where every Freeman served in person as a Horseman or on foot according to his ability as any that reads those Histories may easily observe and a Guard of Strangers or a constant standing Army was ever held the Body of Tyranny as it still continues in all absolute Monarâ—hies from France to China But to return to Aristle in the place before cited by the Author where speaking just before of the Government of the Maleans and other Greek Commonwealths he says That their Government consisted not onely of those Footmen that bore Arms but of those that had served in the Army And then follows these words quoted by the Author 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are not well rendered by those that waged War since they should rather be rendered by those that went to the Wars this Force not being to defend them from their own Citizens but Neighbours with whom they were still at Wars for it appears that not onely those had a share in the Government who were actually in Arms but those also that had served in the Army for Aristotle says immediately after That their Strength consisted chiefly at first of Horsemen and that as the Common-wealths increased in the strength and number of them that were of ability or substance to bear Arms the Administration of the Commonwealth was communicated to more From whence it appears that as also at first among the Romans they onely had a Voice in their Councils or Assemblies who were able to maintain themselves in the Wars at their own charge As amongst us none have a
Vote to chuse Parliament-men but Freeholders or as in old times none but those who served in the Wars in person had Votes in the Withena Gemote or Great Council And yet this was no standing Army no more than those in Greece So likewise neither are these words fairly rendered in the same page 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that in a Popular State The Soveraign Power is in the Sword and those that are possessed of the Arms but are thus to be rendered In this kind of Government i. e. Popular those govern and have greatest Power who bear Arms and fight for the rest which is but reasonable I shall not trouble my self with the rest of those Contradictions and Faults he find◠with Aristotle since I look upon this Treatise of Politicks as the most confused he hath writ onely it seems this Author did but skim over Aristotle when he so confidently asserts That the natural Right of the People to found or elect their own kind of Government is not once disputed by him which whether he asserts or no let these words judge lib. 5. Pol. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which may be thus Englished But of Kingdoms by discent this may be supposed the cause of their dissolution besides those al◠ready mentioned viz. when it happens to many of them who not being endued with the power of a Tyrant but onely with a Kingly Authority become contemned whilst they will unjustly abuse their Subjects for then there is an easie dissolution of the Government for he is not a true King over those that like not his Government but a Tyrant P. 20 21. He finds fault with Aristotle for making the main distinction between right Forms of Government and those that are imperfect or corrupt to consist solely in this That where the profit of the governed is respected there is a right Government but where the profit of the Governours is onely regarded there is a corruption or transgression of Government By this it is supposed by Aristotle that there may be a Government which he calls a Tyranny onely for the benefit of the Governour That this Supposition is false may be proved from Aristotle himself to instance in the point of Tyranny And therefore the Author endeavours to make him contradict himself thus Tyranny saith Aristotle lib. 3. cap. 7. is a Despotical or Masterly Monarchy Now he confesseth l. 3. c. 6. That in truth the Masterly Government is profitable both to the Servant by nature and the Master by nature And he yields a solid reason for it viz. It is not possible if the Servant be destroyed the Mastership 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 onely And thus his main definition of Tyranny fails as being grounded on an impossible Supposition By his own confession no Example can be shewn of any such Government that ever was in the world as Aristotle describes Tyranny to be for under the worst of Kings though many particular men have unjustly suffered yet the Multitude or People in general have found benefit and profit by the Government If Aristotle were alive I doubt he would say this Author plaid the Sophister with him and did not onely misquote his words but pervert his meaning For first Aristotle does not say in that place he quotes or in any other that I know of That Tyranny is a Despotical or Masterly Monarchy And therefore all he builds upon this Concession is false It is true indeed Aristotle says That the Government of the Master is profitable both to the Servant by nature and the Master by nature that is upon his supposition that they are either so by nature But the Author omits what immediately follows because it would vindicate Aristotle's true meaning for his next words are Nevertheless it i. e. the Masterly power regards chiefly the profit of the Master and of the Servant but by accident but Oecumenical Government or that of a Master over the Wife Children and Servants is for their sakes whom he governs and for the common good of them all Hence it appears plainly that Aristotle when he says that a Tyranny is for the benefit of the Governour alone he does not mean that the Subjects can have no benefit at all by it since it is the Tyrants interest they should live and get Children or else he would quickly want Subjects Thus the Children of Israel under the Tyranny of Pharaoh had Meat Drink and Cloaths and were not so low kept but they got Children apace and yet we find God thought them opprest and heard their cry But Aristotle clears the point when he distinguishes an absolute Masterly power over a Slave from that of a Father of a Family the Master in the former considering onely his own profit and the preservation of the Slave but by accident and so an ill-natured brutish Master takes care of the life of his Slave that works in the Mines or Sugar-works in the Indies not out of any love to the person of the Slave but because he cannot subsist without him So a Grasier or Butcher takes care of his Cattel that they thrive and do well as they call it yet every body knows that they take this care onely for their Carcasses which yield them so much ready money at the Market So that indeed a Tyrant onely considers his own good in the welfare of his Subjects and looks upon them as no better than brute Beasts in which he hath an absolute property to shear or kill as he thinks it most conduces to his own profit without considering to what end he is set over them As the Grand Seignior makes use of the bodies of his poor Christian-slaves for Subjects I cannot call them to fill up Ditches and to blunt the edge of his Enemies Swords But that all Kings are bound to preserve the Lands Goods and Lives of their Subjects the Author himself confesses Patriarcha p. 94. Though not by any municipal Law so much as the natural Law of a Father which binds them to ratifie the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects So then I hope there is some difference between the Government of a Father over his Children and that of an absolute Lord over his Slaves notwithstanding our Author's Quotation out of Aristotle whereby he would make them all one viz. That a Kingdom will be a Fatherly Government Which is true if you take it in the best sence for that affection that Kings like Fathers should have for their Subjects And so it is plain Aristotle intended it by the words immediately foregoing thus For the Society of a Father with his Sons has an appearance of a Kingdom not that it is so indeed But to make an end with Aristotle I will give you one
rate his power now encreases but that he may be so he threaten to cut their Banks and let in the Sea to drown them and their Country if they will not yeild it up to him may they not if they find they cannot resist him submit themselves to him and make the best terms they can for themselves and are they not then obliged by the Authors own Principles to continue his Subjects and yet here is no actual War or inundation but threats only to force them to this submission So that the Authors Supposition is false that no case can happen but an actual War only which can reduce a People to such terms of extremity as to compell them to an absolute abnunciation of all Soveraignity and so likewise is this consequence also which he assumes from thence then war which causeth that necessity is the prime means of extorting such Soveraignity and not the free gift of the People who cannot otherwise chuse but give away that Power which they cannot keep for they might either leave their Country or bury themselves in it But it seems the Author had forgot his Logick or else he would have remembred to distinguish between Causa sine qua non and Causa efficiens a cause which does not properly give being to a thing and yet without which it could not have been produced Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner yet the true Cause of his becoming a lawful Servant to his taker does not proceed from his conquering him but from his coming to Terms with him that he shall be dismist of his Fetters or Imprisonment upon Condition he will serve faithfully and not run away and all Moralists consider those actions they call mixt as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones though they commenced from some kind of force since in this case the Merchant might if he pleased keep his goods if he would venture his life So in many cases may a Conquered People if they have never neither by themselves or their representatives owned the Conquerer But as much as the Author quarrells at the word usufructuary Right in Grotius as too base to express the Right of Kings and as derogatory to the dignity of Supreme Majesty yet the the French are not so scruplous but in the absolutest Monarchy of Europe plainly declare that their King hath but an usufructuary right to his Kingdom and the Territories belonging thereunto or that he can any way charge them with his debts or alienate or dispose of them without the consent of the States of France See Mezeray in the reign of this King 1527. and was so solâ—mnly declared by that great Assemby des notables called by K. Francis the First to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid their sense was that Burgundy which by those Articles was to be delivered up was an inseparable Member of the Crown of which he was but the usufructuary and so could not dispose of the one any more than of the other nor was this any new opinion but as old as St. Lewis who being desired by the Emperour Frederic III. to restore the King of England his just Rights To which the said King replyed whose words I will faithfully translate as they are in Matthew Paris p. 765. Anno Dom. 1249. By the holy Cross with which I am signed I would willingly do it if my Counsel i. e. the Estates would permit it because I love the King of England as my Cosen but it were hard at this very instant of my Pilgrimage viz. for the holy land to disturb the whole body of my Kingdom by contradicting the Counsels of my Mother and all my Nobles although the Intercessors are very dear to me neither is this to make a Kingdom all one with a Ferm as the Author words it since in the civil Law it signifies not only one that barely receives the rents or profits but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner though he have not power to sell or give it away Nor I suppose will any French or English Subject unless such bigotted ones as the Author acknowledge any Forraign Prince or other Person can obtain an absolute Dominion over them by Conquest I am sure they were not of that opinion between two hundred and three hundred years agoe when the King of England brought a plausible Title into France and had it backt by almost an entire Conquest of the whole Kingdom and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris and yet after all this the French had so little Conscience as to proclame Charles the Dauphin King of France and to drive the English out of the Country and renounce their allegiance which they had sworn to our Kings Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary P. 69. to bestow Supreme power in succession But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown let us see the consequences of this Doctrine For the Crown must be of England in the nature of an absolute Fee Simple and is consequently chargeable by any act or alienable by the Testament of the King in being So that then King John had Power to make this Kingdom feudatary and tributory to the Pope and so the Pope hath still a good Title to it And since Religion with these Gentlemen diminishes nothing from the right and absoluteness of Monarchy the same King might have made over his Kingdom to the Emperor of Moroco as the Historians of those times relate he would and so the Sarracen Prince might have entred upon the non-performance of the Conditions and have turned out his Vassal and been King here himself which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms let any man consult Matthew Paris and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate Anno 1216. P. 280. that no King could give away his Kingdom without the consent of his Barons who are obliged to defend it and all the Nobility there present began to cry out at once that they would assert this Priviledge till death That no King or Brince could by his sole Will give away his Kingdom or make it tributary by which the Nobles of the Kingdom might become Slaves Nor did the English Nobility think otherwise since this was one of the causes of their taking Arms against King John Matt. Paris 1245. p. 659. 666. and afterwards in his
likewise in Denmark the Author himself cannot deny but that Kingdom is limited for he could not before the late war with Sweden either make War or Peace raise mony or make laws without the consent of his Senate who were a constant representative of all the Nobility But for the Election of a new King or for the making of new Laws the whole body of the Nobility and Clergy were to be present and consent As for Scotland the Government of it hath alwayes so much resembled England that it being now the same Prince I shall not say more of it but that it hath alwayes been a limited if not a mixt Government In Sweden the Kings power is much the same only the Commons have representatives in the assembly of Estates which they had not in Poland and Denmark But in Denmark and Sweden the Kings until of Late that they became Hereditary were never received or owned as Lawful until they were Crown'd and had Sworn to observe and maintaine the Laws of the Kingdom and priviledges of the Nobility and People But the Authour thinks he hath gotten a great advantage because he finds that in Poland and Denmark the Commons have no representatives in the Assembly of Estates and that therefore in some limited Monarchies the whole Community in its underived Majesty do not ever convene to Justice Which signifie little for these that are now the Nobility may be Heirs to those that once had the whole propriety of the Country in their hands when these Kingdoms were erected and so tho the body of the People encreased yet the ancient Nobility never admitted them into a share of the Government As in Venice without doubt all the Ancient Planters of those Islands had Votes in the Government and it was then popular though it is now restrained to the ancient Families or those new ones they now admit and is much such an other cavil as that in England Before the reduceing the Nobiles Minores to two Knights of the Shire the Commons had no Votes in the great Council or Parliament which opinion see confuted in Mr. Petyt's Treatise of the ancient Rights of the Commons of England and in the learned Treatise call'd Jani Anglorum facies nova And this appears more plainly in Denmark where every Lord of a Mannor or Territory is a Nobleman and hath a Vote in the Diet or Assembly of the Estates or else it might have begun as in Poland which is but an Association of so many petty Princes for mutual defence under an Elective Head who when they entred into this Confederac reserved to themselves the power they had before over their Subjects and Vassals which how absolute that was any man may find that understands the Sclavonians Genius in so much that from the absolute Subjection of that People to their Lords we have the Word SLAVE to this day But the Author himself confesses the Kingdom of Poland to be limited but it is only by the Nobility who are for all this forced to please the King and to second his will to avoid discord which is very true and is requisite in all limited Governments that the King Nobility and People should agree and as it is their duty to comply with his desires as much as may be without giving up their liberties lives and fortunes absolutely to his disposal So it is his to answer his Peoples desires in all things which are for their benefit Not that I praise the Form of Government in Poland since of all those that own the name of King I am so far of the Authors mind as to think it most liable to Civil Dissentions But before I dismiss this Subject I must take notice of a mistake in the last Page of this Authors present Treatise which is that the People or Community in all these three Realms are as absolute Vassals as any in the world which is not true unless it be affirmed of the Vilains Or Vassals of the Nobility which is granted are more absolute Vilains than ours were in England but as for the free born See Pontanus Hist Dan. soterus de Stat. Suecia or ordinary Free-holders in Denmark and Sweden and for the Merchants and Artificers dwelling in Townes and Cities they have all their distinct priviledges and are free both their Persons and Fortunes and cannot be oppressed by the Nobility nor taxed but by the Dyet or Assembly of Estates but perhaps the Authors Friends may now cavil and say that these are no Monarchies at all because a Monarchy is the Government of one alone in which neither Nobility nor People have any share to which I shall say no more then that these People call their Governments Monarchies as participating more of that then any other forme and they are owned to be true Kings all the world over and if the Gentlemen of the Authours opinion will quarrel about words my business is not to dispute from Grammar but reason so that these Kingdoms may be called Monarchies as they are in Europe but if these Gentlemen think it not fit to call them so let them consider how much all this Authors discourse will concerne our Government in England or elsewhere in Europe Having now taken a short view of the Ancient Governments of most of the Moderne Kingdoms that have been erected since the ruin of the Roman Empire we will conclude with the Government of our own Countrey and inquire whether ever it were an absolute despotick Monarchy or no. As for the Original of the Saxon Government it is evident out of Tacitus and other Authours that the Ancient Germans from whom our Saxon Ancestors descended and of which Nation they were a part never knew what belonged to an absolute despotick power in their Princes And after the Saxons coming in and the Heptarchy having been erected in this Island the Ancient form of Government was not altered as I shall prove by and by therefore though the Monkish Writers of those times have been short and obscure in that which is most material in a History viz. the form of their Government and manner of succession to the Crown amongst them stuffing up their books with unnecessary stories of miracles and foundations of Churches and Abbeys Yet so much is to be pickt out of them that the Government of the West-Saxons which was that on which our Monarchy is grafted was not despotical but limited by Laws that the King could not seise mens lands or goods without Process that he could not make Laws without the consent of his Wittena Gemote or Great Counsel Nor take away mens lives without a Legal trial by their Peers See Mr. Petyt 's Preface to his foremention'd Treatise and that this Government hath never been altered but confirmed by their Successors both of the Danish and Norman Race as appears by their Charters and confirmations and many confirmations of Magna Charta and other Statutes as there is no man that is but moderately vers'd in the
to them But Edward 1. that great Prince was of another mind who in his Letter to the Pope concerning the Tribure granted by King John Mat. Paris P. 435. Et super hoc nequiverimus ejusdem deliberationem habere cum Prelatis et proceribus ante dictis sine quorum Communicato Concilio Sanctitati vestrae non possumus respondere et jure jurando Coronatione nostra praestito sumus astricti quod Jura Regni servabimus illibita nec aliquid quod Diadema tangat regni ejusdem absque ipsorum re quisito comsilio facimus So likewise that Victorious Prince Edward III. in the preamble to the new Statute of Provisors Anno Regni 25. Which Statute viz. repealing a former Law viz. 35. Edward I. which said this Statute holdeth always his force and was never defeated or annulled in any point and by so much as he is viz. the King bound by his Oath to do the same to be kept as the Law of the Realm But I come now to the last main Objection which the Author makes against limited Monarchy and by which he hopes to prove it an absolute Monarchy I will set down the difference between our Author and Mr. H. upon whom he animadverts in their own words ' First Mr. H. holds that the King himself in a limited Monarchy is not to be resisted or punished any more then in absolute Monarchy and so can doe no wrong in his own person ' Yet if he this limited Monarch transcends his bounds if he commands against Law the subject is not Legally bound to obedience in such cases whereupon our Author asks who shall be Judge whether the Monarch transcend his bounds Mr. H. conceives that in a limited legal Monarchy there can be no stated external Judge of the Monarch's actions if there grow a fundamental variance betwixt him and the Community And in another place confesses that there can be no Judge Legal and constituted within that form of Government whereupon the Author thinks he hath got a great advantage over our Gentleman and therefore is resolved to put the question home and demands of him if there be a variance betwixt the Monarch and any of the meanest persons of the community who shall be judg for instance the King commands or gives Judgment against me I reply his commands are illegal and his Judgments not atcording to Law who must judge if the Monarch himself judge then you destroy the frame of the Government and make it absolute For saith Mr H. to confine a Monarch to a Law and then to make him Judge of his own deviations from that Law is to obsolve him from all Law and on the other side if any or all the People may Judg then you put the Soveraignty in the whole Body or part of it and destroy the Being of Monarchy and thus this Author says Sir R. A. hath caught himself in a plain Dilemma if the King be Judg then he is no limited Monarch if the people Judg then he is no Monarch at all so farewell limited Monarchy nay farewell all Government if there be no Judg. But as sure as this Author thinks he hath his Adversary at an Advantage yet I do not see that he hath given him so much as a Foyl much less a fair Fall for all this terrible Dilemma For first it is for this that if the people be Judg when the Princes commands are unlawful it will therefore destroy the being of Monarchy suppose a King should command all his Subjects to go to Mass which they being Protestants judg Idolatrous If they obey him they must commit Idolatry if they disobey him he is then no Monarch But perhaps it will be replied that it is true the Subjects may judg when the Command is unlawful but if they cannot yield active obedience yet they must yield a passive one and submit patiently to the Penalties he pleases to lay upon them for not going This Answer will not serve turn for the Authors Objection is general if the people judg he does not say resist he is no Monarch at all and refusing to go to Mass is a judging the Princes Command unlawful But Mr. Hobs from whom this Argument is borrowed drives it more home if the Authors friends will admit the Consequence affirms truely upon his own principles that if the Subject do judg in any case whatever of what is lawful or unlawful good or evil it quite destroys the Monarchy For the Monarch is sole Judg of all Actions whether they be Lawsul or not Now when the Monarch hath declared his Will that all his Subjects should go to Mass surely not to go is to disobey the Monarchs Command Since his will was they should absolutely go to Mass nor leave it to their discretion either to go to Mass or undergo the Penalty ordained for not going Lastly neither does the Judgment of the people concerning their own safty in many cases take away the absolute power of a Monarch For a General of an Army hath an absolute Power over the Lives of his Soldiers but does it derogate from his absolute power that he knowes he shall not be obeyed if he command his Men to leap down a Precipice or to kill each other ' But Mr. H. proposes two or three expedients to help this inconvenience of the want of a publick Judg. First He says a Subject is bound to yield to a Magistrate where he cannot de jure challeng obedience if it be in a thing in which he can possibly do it without subversion to the Goverment and in which his Act may not be made a leading Case and so bring on a prescription against public liberty And again he saith If the Act in which the Exorbitance or Transgression of the Monarch is supposed to be be of lesser moment and not striking at the very Being of the Government it ought to be borne by publick patience rather then to endanger the Being of the State But these Salvoes however moderate and sober will not please our Author at all Anarchy 285. ' For he will have them to be but Fig-leaves to cover the nakedness of Mr. H's limited Monarch formed upon weak supposals in cases of lesser moment For if the Monarch be to govern only according to Law no transgression of his can be of no small moment if he break the bounds of Law for it is a subversion of the Government it self and may be a leading case and so bring on a prescription against publick Liberty and strikes at the very being of the Government it self and let the case be never so small yet if there be illegality in the Act it strikes at the very being of limited Monarchy which is to be legal unless the Author will say as in effect he doth that his limited Monarch must govern according to Law in great publick matters only but that in smaller and which concern private Men he may rule according to his own will All which
that he had no more understanding But it would be our Crime and we alone were punishable if we should obey such a Command and it is only upon this supposition whether the sufficiency of the Protection of our Laws and the integrity of the Judges declared in the 14th of his now Majesties Reign by the Act concerning the Militia be full that it is a Traiterous Position that Arms may be taken by his Majesties Authority against his Person or against those Commissioned by him in persuance of Military Commissions Because they suppose the King will not make use of the Militia for the destruction but the preservation of the Subjects just Rights and because all Officers of the Army or Militia are at their Peril to take notice whether their Orders are according to Law or not For they put it thus though to take free Quarter or to hang a man by Martial-Law in time of War be lawful yet to do so in time of Peace though in the Kings Name is Robbery and Murder And of this Opinion is that antient Book called the Mirror of Justices Chap. 1. Sect. 10. De Larcine En cest Peche viz. Robbery chiont tonts ceux que pernont le' autrun per l' Authorite del Roy en le' autre Grand Seigneur sans le gree de ceux aux queux les biens sont Into this Crime viz. Robbery all those do fall who take the Goods of another by the Authority of the King or any other great Lord without their Consent ' Nor I dare fay will any honest well meaning Subject be discontented if in case of extream necessity or some sudden danger the King should somewhat exceed his Prerogative for the defence of the Kingdom further then the Law will allow Since in matters of private concern a Man will not be angry with his Agent or Factor whom he hatâ—â—mpowered to look after his Business in another Countrey if the Agent perceiving the person for whom he is intrusted does not understand how his concerns in that place stand and that the Affair will not permit him to send again for farther Orders if he act contrary to his first Instructions since if he did not his Friends or Masters business would be lost Much more in the case of a King who besides the peoples concerns with which he is intrusted hath likewise his own Crown and Dignity at Stake So likewise a King will easily pardon a Subject who upon a sudden Insurrection or Invasion raises Forces and marches against the Enemy without staying for a Commission and when a Prince hath so well satisfied his Subjects that he never intends to make use of this Prerogative but for the good and preservation of his people he may do almost what he pleases and no body will be concerned And this made Queen Elizabeth meet with that great Affection and Confidence that she did throughout her whole Reign for though she sometimes exercised as high Acts of Prerogative as some of her Predecessors yet she had the good luck to have scarce any of them questioned in Parliament because the whole Nation was satisfied she acted for the best and sought no other end but the publick good and safety of the Kingdom Which had she permitted Spain to have swallowed up France and the Low-Countries it would have been a hard task to perswade them But Mr. H. proceeds in the same Paragraph and supposes that redressment by Petition failing that is that the Judges either do not or will not act according to their Oathes then if the Exorbitancy ' or transgression be mortal to the Government 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 judg and pronounce sentence in every mans Conscience and every man so far as concerns him must follow the Evidence of Truth in his own Sense to oppose or not oppose according as he can in Conscience acquit or Condemn the Act of the Governour or Monarch This our Author finds fault with ' First concerning the laying open of illegal Commands he will have Mr. H's meaning to be that each private Man in his peculiar case should make a publick Remonstrance to the World of the illegal Acts of the Monarch and then if upon his Petition he cannot be relieved according to his Desire he ought to make Resistance Whereupon the Author would know who can be Judg whether the illegality be made sufficiently 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 moderate and indifferent men can discover no such thing and in this case the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erronious In which Annimadversion of our Author he first lays that to Mr. H's Charge which he does no where affirm that every particular Subject when injured should make a publick remonstrance to the people but only lay it open to the Monarch or his Judges that represent him by Petition And sure there is a great deal of difference between a Petition and a Remonstrance He does not say that every single Subject failing of Redress by Petition ought to make resistance in his own case for he before supposes the Exorbitant Act or Transgression not to be Mortal such as suffered dissolves the Frame of the Government and publick Liberty And that in such lighter cases for the publick Peace we ought to submit and make no resistance at all but de jure cedere which can never fall out as long as this Transgression or Exorbitance extends it self only to some particular men 2. Our Author will have no particular man to be Judg in his own Cause I grant it if by Judg he means Execution too by publick resistance Otherwise a mans passing his judgment or declaring it that he thinks himself injured suppose by a Decree in Chancery or Act of Parliament does not disturb the Goverment or publick Peace But he may if he please bring his Appeal or a new Bill in Parliament and have the unjust Decree or Act reversed which he can never do if he did believe he ought not to make the injustice or illegality of this Act or Decree apparent to those that are to give him redress but if this Exorbitant Act or Transgression be general and presses upon all alike I deny that the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erroneous For suppose the illegal Act were so publickly declared that for the future all Taxes should be raised without consent of Parliament or that all menshould be tried for their Lives without Juries I would fain know whether the Judgment not only of the Commonalty but of all
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
Confessors days Since whose time the Kingdom of England hath remained as it does In which passage the Author hath discovered either a great deal of Ignorance or inadvertency in the History and Government of his Country For first he Confesses that the English Saxons had a Meeting which they called the Assembly of the Wife termed in Latine Conventus Magnatum or Praesentia Regis Procerumque Prelatorum Collectorum or in general Magnum or Commune concilium c. All which Meetings may in a general sence be termed Parliaments yet he will not allow there could be any Parliaments assembled of the general Estates of the whole Kingdom for the reason he gives us before What he means by until about the time of the Conquest I know not but this is certain that from the time of King Egbert who is reckoned the first Monarch the great Council or Wittena Gemore consisted of the General Estates of the West-Saxon-Kindom and if the whole people of England had not their Representatives there it was because they were represented by their Tributary Princes or Kings who Governed Subordinately to this Monarch until the coming of the Danes Thus the West-angles had their particular Kings in the time of King Ethelwolf St. Edmund the last King being Conquered by the Danes So likewise had the Mercians their King Beorced their last King being driven out by the same Invaders about the same time and after the Kingdom was at Peace again and the Danes in great part subdued or quiet King Alfred Re-conquering the Mercian-Kingdom gave it in Marriage to a Saxon Nobleman called Etheldred who had Married his Daughter Elsteda who was long after her Husbands Death Lady or Queen of the Mercians Rerum Anglick Scriptores post Bedam Ed Fra. p. 857. yet did these feudatory Princes always appear and make a Part in the Wittena Gemore or great Council of the Monarch thus we may find in Jugulphus that Withlafe King of the Mercians made a promise of the Lands and Liberties of the Abby of Croyland which he after confirms by his Charter in Prisentia Dominorum meorum Egberti Regis Westo-Saxoniae Athelwolwafij filij ejus coram pontificibus proceribus totius Angliae in Civitate Lundini ubi omnes Congregati sumas pro consilio capiendo contra Danicos Pyratat Littora Angliae infestantes which certainly was a great Council And that these Kings were tributary to the West Saxon Monarch the same Author tells a little further that Bertulph Brother of Witlafe succeeded his Nephew Wimund Id. p. 860 861. and was Tributary to Athelwolf King of West Saxony and by his Charter confirms the same Lands and Liberties to the said Monastery which had been granted by his Predecessors and this was done and confirmed unanimi consensu totius praesentis concilij hic apud Kingsbury Anno incar Domini 881. c. pro Regni negotis congregati and is thus subscribed Ego Olflac Pincerna Legatus Domini mei Regis Ethelwolf Filiorum suorum nomine illorum omnium Westsaxonum istum Chirographum Regis Bertulphi plurimum Confirmavi Ego Bertulphus Rex Mericorum palam omnibus prelatis Proceribus Regni mei Which shews us that besides the General Council of the whole Kingdoms these Mercian Tributary Kings had a Particular Council or Parliament of their own Kingdom without whose consent as also of their Paramount Monarch they could not part with the Lands and Royalties belonging to their Crown So likewise in the same Author Beorced King of the Mercians Anno Domini 868 confirms his Charter to the same Monastery at Snotringham coram fratribus amicis omni populo meo in obsidione Paganorum Congregatis To which likewise his supreme Monarch Elthred King of the West Saxons gives his consent and subscribes after the Bishops the like form we find in the passing of all the other Charters to this Monastery quoted by the said Author which are all of them confirmed by the King then Reigning in praesentia Archiepiscop Episcop Procerum or optimatum Regni Collectorum And before the Kingdom came to be united under one supreme King or Monarch there was also one great Council or Synod of the whole Kingdom where the chief and most powerful King or Monarch of the Heptarchy presided and in which they made their general Ecclesiastical Canons and also Civil Laws that were binding to the whole People of England and to which Persons that had been grieved or wronged by their particular Kings appealed and were righted and to this general Wittena Gemote that antient Writer Will. Malmsbuny speaking of the antient Customs and Laws of England says were made per generalem Senatum populi Conventum edictum therefore we find the first Synod or Council of Clovesho Anno Christ. 747. called by Ethelbald King of the Mercians who was then chief King or Monarch as they called him of the English Saxons and at which were present the said King with all his Princes and great Men Malm. de gest pontific as also all the Bishops of this Island but it more plainly appears in the second Council held at the same place called by Beornulf King of Mercia who presided therein Spelman Council p. 332. You will find one of the first things they did was to inquire whether any person had been unjustly dealt with or unjustly spoil'd or opprest whereupon Wulfred Arch-Bishop of Canterbury complain'd of the violence and Avarice of Kenwulf late King of the West Saxons which beingfully proved the said Council ordered Kenedrith the Abbess the daughter and Heir of the said King to make satisfaction to the said Arch-Bishop which was done accordingly out of the Lands of the said King see it at large in Spelmans Councils and Mr. Somner that Learned Antiquary in his Glossary to the decem Scriptores is clearly of opinion Spelman Council pag. 393. that this was all one with a Parliament Synodus magna Parliamentum nuncupatur So likewise the Canons of the Synode or Council of Catchyck Annol were confirmed by Offa King of the Mercians then Chief Monarch of this Island Tam Rex quam Principes sui cum senatoribus terrae decreta signo Cracis firmarunt And further that each of the Kingdoms of the Heptarchy had its particular Councils or Wittena Gemotes appears by that famous Council called by Ethelbert King of Kent about Six Years after his Reception of the Christian Religion which was called commine concilium tam Cleri quam Populi And no doubt this custom came not in with Christianity the Clergy onely here succeeding in the room of the Pogan Priests who among the Germans had always a place in their common Councils as we find in Tacitus See the passage before Cited p. Spelman Con. pag. 126. So likewise the first Laws we have extant were made by Ina King of the West Saxons Per commune concilium assensum omnium Episcoporum Principum Procerum
very Constitution of the Commonwealth some have crept in by success of time and by insensible degrees So that it might happen that a regular Form could not well be Instituted from the very Original of the Commonwealth or some remarkable mutation of it either by the Founders or Authors of that mutation either thorough their unskilfulness or because the urgency of their affairs or temper of the People did not permit them to consider of the means of doing it otherwise nay oftentimes thorough either the carelesness of those that Govern or by some other ' occasion a Disease invades the Commonwealth which when it hath taken such deep Root that it cannot be expelled with out the destruction of the Government there is nothing then to be done then that the Disease should cease to be so by a Publick Sanction and that which hitherto was Usurpation Faction on Contumacy may for the future become a Priviledge or right So much of Irregular Governments or Monarchies But in the next Chapter of the same Book the same Author speaking of the rights of the Supreme power where when he hath first proved what it is that makes any Power be called Supreme in a Common-wealth and that he who hath this Power must be free from punishment and not obnoxious to humane Laws and that he hath confuted the Long Parliaments distinction of a real and Personal Majesty and that Kings properly so called must be Superior to all the People and having answered the Objections to the contrary at last he proceeds § 7 to shew what absolute Power is and that it is not found alike in all Forms of Common-wealths and gives us the true Original of limited Governments his sence is so good that I shall not much contract what he says but give it you as it is § 7. 8 9 10. Besides it is apparent enough that in some Common-wealths the Royal Authority is free in the exercise of its Acts but restrained to a certain Mode of acting from whence arose the distinction of Empire into limited and absolute where in the first place it is to be explained what is meant by the word absolute which is so odious to those who have had their Education in free Common-wealths Indeed the same word being ill interpreted may incite some Princes to vex their Subjects and to commit a great deal of wickedness Flatterers adding fuel to the Fire who are still ready to encourage the Ambition and other Vices of their Prince at this rate Sir you are absolute therefore if it pleases you it is lawful therefore you may tire out your own Subjects and all your Neighbours with unnecessary Wars that you may appear a mighty Monarch and set forth your own Glory therefore you may affront and insult over whom you please and drain your Subjects with all sorts of Exactions that you may have wherewith to serve your Luxury or Ambition according to the Flattery of Anaxarchus to Alexander upon the death of Clitus that right and wrong Plutarch ad Princi indoct do sit by Jupiter that whatsoever the King does ought to be accounted right and just so that there are some who go about to establish the absolute right of Kings by Arguments that seem to have no other Measure thereof then impunity and a License to vex their People Therefore as by an absolute Liberty of particular Men is meant their judging of their own affairs and actions according to their own and not anothers judgment yet still supposing their Obligation to the Laws of Nature And that this Liberty belongs to all Men who are not as yet subject to anothers will so where divers Men have United together into a perfect Common-wealth it is necessary for the same liberty or faculty of appointing resolving all means necessary for their own safety should now exist in the Supreme Power as in a common Subject which Liberty is accompanied with the Highest Authority or a right of prescribing those means to the Subjects and of compelling them to their Duty therefore in every Commonwealth properly so called there must be an absolute Power at least habitual though not always exercised for it must be answerable to Superior and to have a right of Judging of its own affairs by its own Judgment and will Therefore that absolute Power implies nothing in its self unjust or intolerable is easie to be perceived from the ends of instituting of Commonwealths For indeed we never constituted them that neglecting Natural right things should be done out of a wicked and perverse Lust or Humour but that the security and safety of singulars may be more conveniently looked after by the joint assistances of many So that they might more safely and with more leasure live after the Laws of Nature and Virtue Yet when this Supreme Authority is considered as it is conferred upon one Man or one Council consisting of all or few as in its proper subject it is not always free and absolute but in some places limited by certain laws indeed in Democracies the difference between absolute and limited Power seems not so easie to be observed for although in every Democracy there must needs continue certain Institutions received by use or establisht by written Laws at what time and by whom the People should be Assembled and Publick business proposed and Executed since without such things a Common-wealth cannot be understood yet since that Council consists of all the Citizens in whom the Soveraign Authority resides nothing can hinder but those Constitutions may be altered or abrogated at any time by the same People that made them But in Aristocracies and Monarchies where there are some who command and others who obey and so a Right arises to these from the Promises and Commands of the other There does plainly appear a difference between an absolute and limited power he is therefore absolute who exercises his Authority according to his own discretion and not according to the Rule of any certain or perpetual Constitutions but as the present condition of affairs require and who does so provide for the safety of the Common-wealth as its occasions direct him from whence the word absolute is so far from implying any thing unjust or hateful in it self or intolerable for Free-men that it should rather lay upon such absolute Princes necessity of greater care and circumspection if they will acquit themselves of their Duty and discharge their Consciences as they ought then on those to whom a certain form of dispatching publick Affairs is prescribed So Dio Chrysost Orati 62. describes an absolute Prince thus a good Prince covets nothing because he supposes himself to possess all things he abstains from pleasures since he may enjoy whatsoever he pleases He is juster than others as he who is to be an example of Justice to others He takes pleasure in business because he labours of his own accord He loves the Laws because he does not fear them and of all these he rightly perswades himself
being so far from a Commonwealths-man that for my own part I reverence Monarchy above all other forms of Government and should be as willing to have it unmixt it being that by which God Almighty governs the Vniverse could humane nature be long trusted with it and could we be as certain that his Vicegerents on Earth would as easily imitate those divine Attributes of wisdom and goodness as they are prone to lay claim to his absolute Power For as where those Perfections direct the Scepter a Prince is to be loved and reverenced as the best Representative of the divine nature so the exercise of an absolute unlimited Power without these can create no other Idea in mens minds than what the barbarous Indians have of those terrible Gods they worship to whom though they often make Oblations of what is dearest to them yet it is upon no higher motive of Devotion than that they thereby hope to cajole them not to do them any mischief and would soon cast them off if they knew how to get rid of them Therefore the fault is not in the Government as absolute but in humane Nature which is not often found sufficient at least for above one or two Successions to support and manage so unlimited a Power in one single person as it ought to be And for this I desire the Reader to look over the Catalogue of all the Persian Roman and Turkish Monarchs that have ever succeeded in so many hundreds of years and see how many good ones they will finde among them and who truly considered the good and prosperity of that Empire which God had trusted them withal the effects of which absolute Power being very well known to the Satyrist who lived under it when he thus shrewdly observes Nihil est quod credere de se Non possit cum laudatur Diis aequa potestas Juven Sat. 4. And how much Christian Religion hath altered the case I desire all observing Readers to consult the late Histories of France and Muscovy and other despotick Governments in Europe But since the Government of this Nation as now establisht I conceive the best in its kind as most equal and beneficial both to the Prince and People so that it is onely their faults who would go off from it if they are not both Prince and People the happiest in the World I hope I may without sin wish those accursed from God who would remove our ancient Land-marks and pull up all Limits between Prerogative and Law and who as it may justly be feared would mis-lead Princes enslave Mankind and if occasion were sacrifice both to their own private Interests and Ambition The like I may say of those who would destroy this ancient Government and set up a Democracy amongst us since I know not which is worst to be knawn to death by Rats or devoured by a Lion Nor is it that I am conscious to my self of having writ any thing in these ensuing sheets contrary to Law destructive to Government or that Obedience which all good Subjects owe their Prince and his Laws which hath made me forbear prefixing my Name to this Treatise since perhaps some of those Motives which might perswade this Author to forbear it in the Treatises he published might likewise have the same effect upon me especially since I doubt not but what I have here written will provoke those Craftsmen who esteem this Notion of our Authors by which they expect to get both Riches and Honour as the Diana that fell down from Jupiter And therefore it is no wonder if they are angry with any man that should go about to pull off the specious Vails with which they have covered it and shew it as it really is a wooden Idol of their own making and if they knew the man would according to the usual course of those who abound more in Malice than Reason quit the matter and fall upon the person of their Antagonist and endeavour to stir up both the great Vulgar and the small Vulgar as Mr. Cowley ingeniously terms men of Title without Sense Besides all which joyn'd with the small opinion I have of my own performances or that I think these Papers capable to transmit my Name to Posterity yet if I were sure I could do it however writing against an ingenious Gentleman long since deceased and whose good Name upon all accounts I designe not to diminish yet I should not think it generous to raise my self a Fame to the prejudice of another mans And therefore my Request to you is That you would believe I write these Obscrvations for no other end than for the Truth and in defence of the Government as it is establisht and the just Rights and Liberties of all true English-men All which I pray God preserve as long as the Sun and Moon endure I am your Friend Philalethes Observations UPON A TREATISE CALLED PATRIARCHA And several other Miscellanies Lately Published Under the Name of Sir Robert Filmer Baronet CHAP. I. THE reason why I chuse to begin these Observations with this Treatise of the natural Right of Kings rather than with any of the rest though published long before it is because being as I suppose writ after the rest and on purpose to assert Monarchy to be Jure Divino is likely to contain the Authors most mature thoughts and being written with better connection than his other Tracts contains the substance of them all which were designed not so much to establish an Hypothesis as to observe the weakness of other mens and being published at several times and on divers occasions give us but the same Notions repeated according as the Tenets in the Authors he writ against needed as he thought a Confutation Which how far they do deserve it I leave to the Reader to judge and therefore shall not take upon me to defend any mans Opinions though never so great or learned farther than I conceive them agreeable to right Reason Nor shall I trouble my self to criticize on every small Errour or Mistake in this Author's Writings but onely set my self to consider such main Arguments as appear to be founded on false or meer precarious Principles not concerning my self with his other Treatises but as they contain some other Reasons or newer Matter than I finde here Page 2. The designe of this Treatise is against an Opinion maintained by some Divines and several learned men That Mankind is naturally endowed and born with Freedom from Subjection and at liberty to chuse what form of Government it please and that the Power which any one man hath over others was at first bestowed according to the discretion of the Multitude Page 3. This Opinion he says is not to be found in the Fathers of the Primitive Church that it contradicts the Doctrine and History of the Holy Scriptures the constant practice of all ancient Monarchies and the very Principles of the Law of Nature And upon this Doctrine the Jesuits and favourers of the
Geneva Discipline have built this perilous Conclusion That the People or Multitude have power to punish or deprive the Prince if he transgress the Laws of the Kingdom And for this quotes the Writings of divers Jesuits How far this Tenet deserves the Author's Censure and is liable to the Conclusions he says some have drawn from thence since the truth or falshood of Propositions does not depend upon the men that have made use of them I shall consider hereafter now confining my self onely to examine the Reasons he brings either in this or any other of his Treatises to overthrow this Opinion And if they prove weak and insufficient for the end the Author designed them some Friend of his or his Tenets had best finde out others which if they prove and appear evidently true I shall then rest satisfied and acknowledge my self absolutely convinced In the mean time I shall now give you the Author's Hypothesis all at once in his words that you may judge whether I deal fairly with him or no. P. 5. To pass over therefore his Cautions which are honest and sober I shall come to what he observes upon several passages of Bellarmine And though he does not quote the places from whence he took them yet I hope he hath dealt fairly with him Though I shall not take upon me to defend the contradictions or false consequences either of this or any other Author since I onely observe the onely Answer which p. 11. Sir R. F. gives Bellarmine's Argument for the natural Liberty of the People is out of Bellarmine himself whose words are these If many men had been created together out of the Earth they ought all to have been Princes over their Posterity In which words the Author says we have an evident confession that Creation made Man Prince of his Posterity And indeed not onely Adam but the succeeding Patriarchs had by right of Fatherhood Royal Authority over their Children Nor dares Bellarmine deny this That the Patriarchs saith he were endowed with Kingly power their deeds do testifie for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with a subordination to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People Which conception of Bellarmine though it may destroy his Argument for natural Freedom yet I conceive that it does not destroy the necessity of supposing all the Kingdoms and Commonwealths now in being in the world to have had their beginning from Conquest or else from the Consent or Institution of the People who began it as I shall endeavour to prove more at large But from this concession of Bellarmine's the Author taking this as a yielded point proceeds thus P. 12. I do not see how the Children of Adam or any man else can be free from Subjection to their Parents And this Subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself it follows That Civil Power not onely in general is by Divine Institution but even the Assignment of it specifically to the eldest Parents Which quite takes away that new and common distinction which refers onely Power Vniversal and Absolute to God but Power Respective in regard of the special Form of Government to the Choice of the People P. 13. This Lordship which Adam by command had over the whole World and by right descending from him the Patriarchs did enjoy was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation For Power of Life and Death we finde that Judah the Father pronounced sentence of death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abram commanded an Army of 318 Souldiers of his own Family and Esau met his brother Jacob with 400 men at Arms. For matter of Peace Abraham made a League with Abimelech and ratified the Articles with an Oath These Acts of judging in capital Crimes of making War and concluding Peace are the chiefest Marks of Soveraignty that are found in any Monarchy And not onely until the Flood but after it this Patriarchal power did continue as the very name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World overspread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the earth Then he proceeds upon a vulgar Opinion p. 14 15. That at the Confusion of Tongues there were 72 distinct Nations erected not as confused Multitudes without Heads or Governours but they were distinct Families which had Fathers for Rulers over them whereby it appears that even in the Confusion God was careful to preserve Paternal Authority by distributing the diversity of Languages according to the diversity of Families And for this he quotes the Text Gen. 10. v. 5. Speaking of the division of the Isles of the Gentiles among the Sons of Japhet it follows v. 5. These are the Families of the Sons of Noah after their Generations in their Nations and by these were these Nations divided in the Earth after the Flood So that though the manner of this Division be uncertain yet it is most certain the Division it self was by Families from Noah and his Children P. 16. As for Nimrod's being King over his own Family by Right and over other Families by Usurpation and Conquest and not by Election of the People or Multitude he gives us Sir Walter Rawleigh's opinion that it was so which I think is no better a proof than if he had given us his own but if it were true it proves no more than that this Patriarchal Right could not long continue since it was usurped in the Grandchild of Ham the fourth discent from Noah But he proceeds thus As this Patriarchal Power continued in Abraham Isaac and Jacob even unto the Egyptian Bondage so we finde it amongst the Sons of Ismael and Esau it is said These are the Sons of Ismael and these are their names by their Castles and Towns Twelve Princes of their Tribes and Families c. P. 18. He owns this Paternal Government was intermitted during their Bondage in Egypt because they were in subjection to a stronger Prince But after the return of the Israelites out of bondage God out of a special care of them chose Moses and Josuah successively to govern as Princes instead of the supream Fathers And after them God raised up Judges to defend his People But when God gave them Kings he re-established the ancient and prime Right of Lineal-succession to Paternal Government And whensoever he made choice of any special person to be King he intended that the Issue also should have the benefit thereof as being comprehended sufficiently in the person of the Father although the Father
to acknowledge these usurped Powers as lawful I do less understand the force of another distinction he makes use of p. 155. That an Vsurper is so far to be obeyed as may tend to the preservation of a mans King and Father nay sometimes even to the preservation of the Vsurper himself when probably he may thereby be reserved to the correction or mercy of his true Superiour For how Obedience to an Usurper can tend to the preservation of the lawful Prince I understand not And as for the other instance of preserving the person of the Usurper for the mercy or correction of the true Superiour it had been a very good pretence for Obedience to Cromwel and the Rump nay to fight for them since this was but to preserve them for his Majesties mercy or correction another time though their Power might have continued until now since they had a Possession by the permissive Will of God which how long it would endure no body could tell Such untoward things are Arguments drawn from false Principles that they flie in the faces of those that make use of them and will either reduce them to absurdities or else prove weapons against themselves But I shall now come to his last Refuge when he can no longer evade but that by the Peoples ignorance of Adam's right Heir or of the Heirs to the last Prince the supreme Power is devolved upon the People who may chuse what kind of Government they please Patriarch p. 21. This he denies saying That in such cases the Kingly Power escheats to the Fathers or independent Heads of Families The same Answer he gives to this Objection in his Anarchy of a limited Monarchy p. 272. where he replies very pleasantly That no King can die without an Heir as long as there is one man living in the world it may be the Heir may be unknown to the People but that is no fault in Nature but the negligence of the People whom it concerns So that it seems the next Heir being often not to be known any man when the Prince dies may step into the Throne and if he have Power enough is next Heir for a King can never die without an Heir as long as any one man is left alive in the world and who can disprove him that he is not the man So that the power he hath given to his Masters of Families to chuse an Heir or one to ease them of their Fatherly Power signifies nothing For this Usurper that can first seize it may be right Heir to Adam for ought any body knows And certainly having Possession which is the permissive will of God he hath a better Right than any other as we have often heard before And are told farther in the Anarchy of a limited Monarchy p. 273. That if the true Heir of the Crown come to be dispossessed in such cases the Subjects Obedience to the Fatherly Power must go along and wait upon Gods Providence who onely hath Right to give and take away Kingdoms and thereby adopt Subjects into the Obedience of another Fatherly Power So that Man is not onely a Creature who is his Goods that can first catch him but according to this Author is in a worse condition than Brutes for whereas if a Dog be taken up by a Stranger and a Collar clapt about his neck and so led away it is left to Jowler's discretion how far he will obey his new Master and as he may either stay with him if he likes his Quarters finds himself well used so surely he may without any sin knaw his halter nay bite the fingers of this Usurper of his Liberty and run away But poor Man does not onely fall to the first Occupant whom he may not either obey or disobey as he finds it most conduce to his interest and preservation but is peg'd down to an absolute Obedience and obliged in Conscience to obey this Usurper let him use him well or ill with the same respect and duty as if he were his Father Which I think God was a better friend to Mankind than ever to intend But to return to the subject from whence we digressed our Author for fear he should seem by admission of a Power in Fathers of Families to chuse a Head or Prince over them Anarchy of limited Monarchy p. 272. and to have granted it to them as the whole People he distinguishes saying It does not escheat to the whole People but onely to the supream Heads and Fathers of Families not as they are the People but quatenus Fathers of the People over whom they have a supreaem Power devolved unto them after the death of their Soveraign Chief Fathers in Scripture are accounted all the People as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chron. 1.2 where Solomon speaks to all Israel that is to the Captains the Judges and to every Governour the chief of the Fathers and so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 King 8.1 and 2 Chron. 5.2 By all which it appears that the Author allows in this case the Government escheats to part but not to all the People or whole multitude of Men Women and Children taken together to chuse what Government they please And indeed in this sence there was never any Democracy or Government of the People in nature for though a Democracy may be defined to be that kind of Government where the supream Power is in a Council or Assembly consisting of all the Citizens And although it does not less concern the Women and Children in that kind of Government to be happier than in others yet who ever thought it a new sort of Commonwealth and not a perfect Democracy though Women Children and Slaves were excluded the publick Councils and Assemblies And therefore if it be esteemed a perfect Democracy and was so at Athens which all must grant to have been so where onely Free men or at their own dispose and such who were supposed at first to have by their meeting together instituted this Government which is likewise continued by those who have succeeded into their Places and Rights I see no reason why these should not be looked upon as representing the whole promiscuous body of the People to whom the Power devolves upon the want of a Successour For it is likely that Commonwealths were first instituted by Fathers of Families having Wives Children and Slaves under their Domestick Government whom nevertheless they would neither equal with themselves by admitting them to a Vote in the Government neither yet would abdicate their power over them But then the Author urges Anarchy of a limited Monarchy p. 270 271. If Infants and Children be concluded by the Votes of their Parents this destroys the whole Cause for if it be allowed that the Acts of Parents bind their Children then farewel the Doctrine of the natural freedom of