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
be upon the hearing of one Party only for it is impossible for a Monarch to make his Defence and Answer and produce his Witnesses in every Mans Conscience in each Mans Cause who will but question the Legality of the Monarchs Government Certainly the Sentence cannot but be unjust where but one Mans Tale is heard The first Sentence of this Paragraph is Answered sufficiently in the Observation upon the last Reason but one As for Written Laws every Body knows they are adumb Letter as they lie in Ink Paper but as they come to be from thence Copied out and fixed in Mens Memories they are not dumb neither always needs a Judg to pronounce Sentence but are able enough to speak oftentimes against the Sentence of an unjust Judg and all the Standers by can easily tell if a Judg should go about to Trie and Condemn a Man without ever Impanelling a Jury nor needs there any Defence for the Judg in this case but that a Man may safely give his Sentence in this Case without hearing the Judges Reason since it is plain there can be none given But as for the Monarch it is supposed that he hath already made his Defence by his Atturney and produced his Witnesses when the Subject Petitioned his Judges to right him in what he conceived to be an Oppression So that the Sentence cannot be unjust where but one Mans Tale is heard But if the Judges in this Case as in that of Ship-Money cannot convince the Plantiff but that he is oppressed contrary to Law It is neither his nor their Judgment that can alter the Case But if he can have no other remedy he must even go home and expect better opportunities of being righted as when there are honester Judges or the calling of a Parliament one of whose ends is to redress grievances of that kind by representing to the King the faults and transgressions of his Ministers who only are punishable and answerable for the injustice since the King in his own Person can do none as I have often affirmed as for Mr. H's conclusion that every man must oppose or not oppose the Monarch acoording to his own Conscience when he can have no other redress I do not approve of it For I will not suppose any time in which this Nation is not oppresed by a standing Army or Men of different Principles in Religion and Goverment but the Subject may find redress if not at one time yet at another But the other part of the dispute between our Author and Mr. H. whether this Power of every Mans judging of the illegal Acts of the Monarch ' argues not a Superiority of those who Judg over him who is Judged because it is not Authorative and Civil but Moral residing in Reasonable Creatures and lawful for them to execute which is not so hard to understand as the Author makes it if we take this Word Moral as it is plain Mr. H. uses it in contradiction to Civil Power which is such a right of acting as every private Man hath though he hath no Civil Authority For a Mans bare judging of the justice and injustice of all Actions that concern him or any other man are inseparable from the Nature of Man whether they are ordered by a Prince or private Man and a Princes commanding this or that to be done or giving his judgment this way or that way cannot alter these settled Rules whereby Men judg of right and wrong So that if this Author or his Friends will make use of Mr. Hobs's Arguments of the necessity of the Judgment of one Man in all Points whatever they must likewise take what follows that there is likewise no good or evil or right or wrong in the state of Nature but what the Monarch judges to be so and when that is done if the Authors Friends have any Religion let them see what they will get by it but the Author supposes he hath sufficient advantage over Mr H. because he hath laid it down in the Page before going ' That resistance ought to be made and every Man must oppose or not oppose according as in Conscience he can acquit or condemn the Acts of the Governour For says the Author if it enable a Man to resist and oppose his Governor without Question 't is Authoritative and Civil As for Mr. Hobs's Assertion I will not take upon me to meddle in so nice a Point though he hath in all his work supposed such resistance lawfull only in limited or mixt Monarchies and not in absolute ones and likewise then only when all other ways and means hvae proved ineffectual and of this opinion likewise the Author of the Excellent Poem called Coopers Hill seems to have been which I rather take notice of because the Author was never look't upon but as a great Friend to Monarchy and this Poem it self speaks him no Presbyterian Both the Verses and Sence are so good that perhaps it may refresh the Reader tired with Reading so much drie Arguments to run them over speaking of the King 's hunting the Stag over Runny-Mead where the great Charter was Seal'd he falls into this reflection This a more innocent and happy Chace Then when of Old but in the self same Place Fair Liberty pursued and meant a Prey To lawless Power here turned and stood at Bay When in that remedy all hope was plac't Which was or should have been at least the last Here was that Charter Seal'd wherein the Crown All marks of Arbitrary Power lays down Tyrant and Slave those Names of hate and fear The happier Style of King and Subject bear Happy when both to the same Center move When Kings give Liberty and Snbjects love Therefore not long in force this Charter stood Wanting that Seal it must be seal'd in Blood The Subjects Armed the more their Princes gave Th' advantage only took the more to crave Till Kings by giving give themselves away And even that Power that should deny betray Who gives constrain'd him his own fear reviles Not thankt but scorn'd nor are they gifts but spoiles Thus Kings by grasping more then they could hold First made their subjects by oppression hold And Popular sway by forcing Kings to give More then was fit for Subjects to receive Ran to the same extreams and one excess Made both by striving to be greater less The mischiefs of which extremes if rightly considered would make all wise Princes and good Subjects contented with their share and endeavour to keep the Ballance even and not to let it incline to either side As to Magna Charta I shall only add that the Defence which the Nobility and People made of their Antient Rights was not condemned or declared Rebellion either by Magna Charta or any other Statute but on the contrary the breakers thereof were declared ipso facto excommunicated the solemn form of which and where the King himself who had so often broke his Oath bore a part see in Mat. Paris
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