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
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
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
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-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
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
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
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
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
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