Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Understanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the Good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Aslembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Counsel the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Usage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty dayes before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and onely such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellour tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Councel there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Councel to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall first be transmitted hither under the Great Seal of that Kingdom and having received Allowane and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants oâ—… Ministers of the King are privileged and protected much in the same Nature The Servants in houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice have a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars or are imployed on forreign Affairs for him are protected from Actions and Sutes Nay the Kings Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edw. Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of volumus for stay of Suits others with a Clause of Nolumus for the safety of mens Persons Servants and Goods and the Kings Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it untill the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgesse for Plymouth going to the Parliament House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Iohns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Iudges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrestâ—… is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners aâ—… Bailiffs for concealing of Felonies shall make grievoâ—… Fines at the Kings pleasure Chap. 13. Ordains That such as be found culpablâ—… of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoâ—…er that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he thâ—… shall take Reward for deliverance of such shall be at thâ—… Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall maâ—… Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they takâ—… shall be Grievously punished at the Kings pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to Treat upon Debates between Us and certain Great Men it was accorded that in our next Parliament provision shall be made by Us and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from Religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Underwoods and Bushes in High-wayes murder be done the Lord shall make Fine at the Kings pleasure 28 Edw. 1. If a Gold-smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by Ransome at the Kings pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the gift of any Subsidy to which the King answers He would conferr with the Lords and do what should be best according to their Adâ—…ice and the last day of Parliament He gave this Anâ—…er That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of then Petitions or knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any wayes change the Good Customs and Usages Made and Used of Antient Times 5 Hen. 4. c. 6. Whereas one Savage did Beat and maime one Richard Chedder Esquire Menial Servanâ—… to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTESTAS PRINCIPIS NON EST INCLUSA LEGIBUS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. we read of a Restitution iâ—… Bloud and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regalty to grant or deny such of their Petitions as pleaseth Himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King oâ—… Sovereign Lord calling to His remembrance the duty of Allegiance of His Subjects of this His Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in His Wars for the Defence of Him and the Land against every Rebellion Power and Might reared against Him and with Him to enter and abide in Service in Battel if Case so require and that for the same Service what fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by his Commandement within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same Year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against His Rebels and Enemies for the Subduing and Repressing of them and their malitious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Commonwealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen and that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He â—…ished not the making of many Laws since the more we make the less Liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edw. Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Io. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of the Commons which being received by the King part He received part He put out and part he ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been alwayes acknowledged for Laws and Statutes We have amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14 Hen. 3. which is nothing but a Letter of the King to Gerard Son of
Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in conference with their Lordships without prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their not-assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament he marvail'd the House stood either aâ—… the granting of a Subsidy or time of Payment wheâ—… all we have is her Majesties and She may lawfull at her Pleasure take it from us and that she had â—… much right to all our Lands and Goods as to anâ—… Revenue of the Crown and he said he could proâ—… it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon which this Serjeant at Law went may be thought the same Sir Edw. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors Royalists they reserved to themselves of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights fee was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will also will have â—…so le Roy remercie ses loyaux Subjects accept leur â—…enevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so â—…re the only words that makes the Acts of Subâ—…idy a Law to bind every man to the Payâ—…ent of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away Her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in bestowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King Iames who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling iâ—… their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use suâ—… Antimonarchicall words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favourâ—… of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING Forms of Government Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Iudge of till time hath tried it we read of many several wayes of Government but they have all or most of them been of particular Cities with none or very small Territories at first belonging to them At this present the Government of the Low-Countries and of Swisserland are not appropriated either of them to any one City for they are compounded of several petty Principalities which have special and different Laws and
patri G. eadem gratia Archiepiscopo Cantuarienâ—…i totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quiâ—…usdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicaâ—…ae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum â—…aeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis â—…n fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotioruâ—… arduitate periculis imminentibus cessante quacunquâ—… excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribâ—… praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrâ—…ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatiâ—… Praemonentes Decanum capitulum ecclesiae vestrae Caâ—…tuariensis ac Archidiacanos totumque Clerum vestrae Diâ—…cesis quod idem Decanus Archidiaconi in propriis peâ—…sonis suis ac dictum Capitulum per unum idemque Clerâ—… per duos Procuratores idoneos plenam sufficientem poâ—… statem ab ipsis Capitulo Clero habentes praedictis die â—… loco personaliter intersint ad consentiendum hiis quae tuâ—…ibidem de Commune Concilio ipsius Regni Nostri divinâ—… favente Clementia contigerint ordinari Teste Meipso apâ—… West c. CHARLES by the Grace of God c. To the moâ—… Reverend Father in Christ W. by the samâ—… Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by thâ—… Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the Statâ—… and Defence of Our Kingdom of England and 〈◊〉 the English Church We have Ordained a certaâ—… Parliament of Ours to be holden at W. c. aâ—… there to have Conference and to treat with you thâ—… Prelats Great men and Peers of Our said Kingdoâ—… We straitly Charge and Command by the Faiâ—… and Love by which you are bound to Us that coâ—…sidering the Difficulties of the Businesses aforesaiâ—… and the imminent Dangers and setting aside all Excuse you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safeguard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness Our Self â—…t Westm. The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. â—…s to the Temporal Barons But whereas the Spirituâ—…l Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons â—…re to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a â—…onsultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons â—…f the Exchequer the Kings Councel and the Maâ—…ters of the Chancery by their Writs But over and â—…esides this Power the Lords do exercise a decisive or Iudicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy the ordinary Duty or Office of a Iudge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Iudge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Iudges by their Commission oâ—… Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in Execution But Counsellors have no Power to command their Consultations to bâ—… executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weighâ—… the Advice of his Councel and at liberty to resolvâ—… according to the Judgment of the wiser part of hiâ—… Councel and not always of the greater In a word regularly a Counsellor hath no Power but in thâ—… Kings Presence and a Iudge no Power but out oâ—… his Presence These two Powers thus distinguished have yet such Correspondency and there is so neeâ—… Affinity between the Acts of judging and counselling that although the ordinary Power of the Judgâ—… is to give Judgment yet by their Oath they arâ—… bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and oâ—… the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Counsellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers we find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the Kings Presence that He may have Conference and treat with them the very Words of the Writ are nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the Kings Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part â—…n the Consultation this were to make the King â—… Subject Councel loseth the name of Councel â—…nd becomes a Command if it put a Necessiâ—…y upon the King to follow it such Imperious Councels make those that are but Counsellors â—…n name to
shall be respited untill our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John untill he hath other commandement from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The cognisance and Punishment of his Offence did of common Right and antient Custom of the Realm of England solely and wholly belong to Our Lord the King and no other Le cognisance punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisbe by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint Her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Iudicial Power exercised in the Chamber of Peers is merely derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life onely or during pleasure or good behaviour and also annexeth to those Honours the Power of having Votes in Parliament as hereditary Counsellours furnished with ampler Privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural equality and freedom of mankind which many conceive to be the foundation of the Privileges and Liberties of the House of Commons there is so strong an opposition between the liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal jarring had they been raised upon such opposite foundations But the truth is the Liberties and Privileges of both Houses have but one and the self same foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The décisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is alwayes Arbitrary for that is Arbitrary which hath no Superiour on Earth to controlâ—… it The last Appeal in all Government must still bâ—… to an Arbitrary Power or else Appeals will bâ—… in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our dayes is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath Made these Acts Ordinances and Statutes which He Willeth to be Observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do hurt damage or grievance â—…o any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by force any Maid within age 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be â—…bserved within this Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the Citizens of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed and in the 3. Chap. Our Lord the King hath ordained that a woman after the Death of her Husband shal recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord
all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifâ—… Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not be lawful for any to consecrate either Houses Grounds Altars or any other things without the Determinatin of the People Domitius Aenobarbus another Tribune enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or admission from the Colledge thus by a Committee of seven Tribes taken out of thirty five the ancient Form of Religion was alter'd and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a popular estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War l. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Ianus shut after the end of the first Punique War but not so long as for one year but for some Moneths It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius 〈◊〉 Augustus Caesar only for one Summer the Bowels 〈◊〉 Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone soils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthagâ—… the Beginning of which War Sir Walter Raleigâ—… proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kinghâ—… Power of the Consuls who as Livy saith had the same Royal Iurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensignes of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shewes of Government the Popular which served only to raise Seditions and Discords within the Walls whilest the Regal atchieved the Conquests of Foreign Nations and Kingdomes Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still Resort to the Creation of a Dictator who for the time was an absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no Security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the
of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the Having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders onely for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was annointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou cammandest us we will do and whithersoever thou sendst us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Ius Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them pag. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compell them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that 〈◊〉 King according to Law makes no sort of Government and after he had reckoned up five sorts of Kings he concludes that there were in a manner but two sorts the Lacedemonian King and the Absolute King whereof the first was but as General in an Army and therefore no King at all and then fixes and rests upon the Absolute King who ruleth according to
the People may choose what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. c. 3. Also that the People choosing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiours is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No Doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us he rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the Cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition that in some Places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion that People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right and you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this that the People may grant away their Power without retaining any part But what is this to what the People have done for though the People may give away their Power without Reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his Favour the Point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged that in all Presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any Benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings Part who are in Possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the People the Labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an Instant with any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius that although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implyed that it was upon condition to be well-governed and that the Non-performance of that implyed Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said that the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected that he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be that by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say that it is by any necessity of the Law of Nature or by any positive Law of God he teacheth that non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth onely approve it ut humanum and humano modo He tells us further that Populus potest eligere qualem vult gubernationis forâ—…am ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they â—…ay make temporary Kings as Dictators and Protectors jus quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his â—…i potestatem revocabiliter dederunt ac proinde non idem est
major part or indeed any considerable part of the whole people of any nation ever assembled to any such purpose For except by some secret miraculous instinct they should all meet at one time and place what one man or company of men less than the whole people hath power to appoint either time or place of elections where all be alike free by nature and without a lawful summons it is most unjust to bind those that be absent The whole people cannot summon it self one man is sick another is lame a third is aged and a fourth is under age of discretion all these at some time or other or at some place or other might be able to meet if they might chuse their own time and place as men naturally free should In Assemblies that are by humane politique constitution the superior power that ordains such assemblies can regulate and confine them both for time place persons and other circumstances but where there is an equality by nature there can be no superior power there every Infant at the hour it is born in hath a like interest with the greatest and wisest man in the world Mankind is like the sea ever ebbing or flowing every minute one is born another dies those that are the people this minute are not the people the next minute in every instant and point of time there is a variation no one time can be indifferent for all mankind to assemble it cannot but be mischievous always at the least to all Infants and others under age of discretion not to speak of women especially Virgins who by birth have as much natural freedome as any other and therefore ought not to lose their liberty without their own consent But in part of salve this it will be said that Infants and Children may be concluded by the votes of their Parents This remedy may cure some part of the mischief but it destroys the whole cause and at last stumbles upon the true original of government For if it be allowed that the acts of Parents bind the Children then farewel the doctrine of the natural freedome of mankind where subjection of Children to Parents is natural there can be no natural freedome If any reply that not all Children shall be bound by their Parents consent but onely those that are under age It must be considered that in nature there is no nonage if a man be not born free she doth not assign him any other time when he shall attain his freedome or if she did then Children attaining that age should be discharged of their Parents contract So that in conclusion if it be imagined that the people were ever but once free from subjection by nature it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever without apparent wrong to a multitude of people It is further observable that ordinarily Children and Servants are far a greater number than Parents and Masters and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject unto is most unnatural and in effect to give the Children the government over their Parents To all this it may be opposed What need dispute how a people can chuse a King since there be multitude of examples that Kings have been and are now adays chosen by their people The answer is 1. The question is not of the fact but of the right whether it have been done by a natural or by an usurped right 2. Many Kings are and have bin chosen by some small part of a people but by the the whole or major part of a Kingdom not any at all Most have been elected by the Nobility Great men and Princes of the blood as in Poland Denmarke and in Sweden not by any collective or representative body of any Nation sometimes a sactious or seditious City or a mutinous Army hath set up a King but none of all those could ever prove they had right or just title either by nature or any otherwise for such elections We may resolve upon these two propositions 1. That the people have no power or right of themselves to chuse Kings 2. If they had any such right it is not possible for them any way lawfully to exercise it You will say There must necessarily be a right in somebody to elect in case a King die without an Heir I answer No King can die without an Heir as long as there is any 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 or ignorance of those whom it concerns But if a King could die without an Heir yet the Kingly power in that case shall not escheat to the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1. 2. where Solomon speaks to All Israel that is to the Captains the Iudges 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 the 2 Chr. 5. 2. If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their people or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the others subject unto him every man by nature is a King or a Subject the obedience which all Subjects yeild to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon Gods providence who only hath right to
the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet to be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittena-gemot or when this real body of the people did throng together at it so it is not yet perhaps without some defects which by art and policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Iurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Iurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the Original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Iurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the world to last he grants it continued above three thousand years which is an unreasonable time for the world to continue under-age for the first opposers he doth finde of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so antient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the people were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name onely as Generalissimo of an Army and the best Politicians reckon the Spartan Common-wealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick Assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Iurisdiction to be incertain and the priviledges undetermined of that Court that should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Iurisdictions and Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Iurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not onely be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the people may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Iurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Iustice. But he doth not name so much as one Country or Kingdome that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdome that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdomes or nowhere is such a moderated Government as our Observator means to be found
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke
day is naught 3. An Observer of Fortunes one that curiously searcheth signs of good or evil luck which are learned by Experience the Hebrew is to finde out by Experience Whereupon the word here used is one that too curiously observeth and abuseth things that do fall out as lucky or unlucky The Hebrews describe it thus as if one should say Because the morsel of Bread is fallen out of my mouth or my Staff out of my hand I will not go to such a place because a Fox passed by on my right hand I will not go out of my House this day Our new Translation renders this word an Inchanter 4. A Witch a Sorcerer such as do bewitch the Senses or minds of Men by changing the forms of things to another hew The Hebrew word for a Witch properly signifies a Jugler and is derived from a word which signifies changing or turning and Moses teacheth Exod. 7. that Witches wrought by Enchantments that is by secret Sleights Iuglings Close conveyance or of Glistering like the flame of Fire or a Sword wherewith Mens Eyes were dazled 5. A Charmer or one that conjureth Conjurations the Hebrew signifies conjoyning or consociating The Charmer is said to be he that speaketh words of a strange Language and without sense that if one say so or so unto a Serpent it cannot hurt him he that whispereth over a wound or that readeth over an Infant that it may not be frighted or layeth the Bible upon a Child that it may sleep 6. A Wisard or cunning Man in Hebrew named of his knowledge or cunning The Hebrews describe him thus That he put in his mouth a bone of a Bird and burned incense and did other things until he fell down with shame and spake with his mouth things that were to come to pass 7. A Necromancer one that seeketh unto the Dead of him they say he made himself hungry and went and lodged among the Graves that the dead might come unto him in a Dream and make known unto him that which he asked of him and others there were that clad themselves with Cloaths for that purpose and spake certain words and burned Incense and slept by themselves that such a dead person might come and talk with them in a dream 8. Lastly The Consulter with Familiar Spirits in Hebrew a Consulter with Ob applied here to Magitians who possessed with an evil Spirit spake with a hollow voice as out of a bottle The Hebrews explain it thus That he which had a Familiar spirit stood and burned Incense and held a rod of Mirtle-tree in his hand and waved it and spake certain words in secret until he that enquired did hear one speak unto him and answer him touching that he enquired with words from under the Earth with a very low voice c. Likewise one took a dead mans Skull and burnt Incense thereto and inchanted thereby till he heard a very low voice c. This Text in our English Translation being expounded a Familiar Spirit and seconded by the History of the Woman of Endor may seem a strong evidence that the Devil convenanted with Witches but if all be granted that can be desired that this Familiar Spirit signifies a Devil yet it comes not home to prove the main point for it is no proof that the Familiar Spirit enter'd upon Covenant or had or could give power to others to kill the persons or destroy the Goods of others King Iames confesseth the Devil can make some to be possessed and so become very Daemoniaques and that she who had the spirit of Python in Acts 16. whereby she conquested such gain to her Master that Spirit was not of her own raising or commanding as she pleased to appoint but spake by her Tongue as well privately as publickly We do not find the Pythonesse condemned or reproved but the unclean Spirit commanded in the Name of Iesus Christ to come out of her The Child which was too young to make a Covenant with the Devil was possessed with a dumb and deaf Spirit and the Devil charged to come out and enter no more into him Mark 9. A Daughter of Abraham that is of the Faith of Abraham was troubled with a spirit of infirmity eighteen years and bowed together that she could not lift her self up Luke 13. 10 16. It is observable that in Deut. 18. where all the unlawful Arts are reckoned up and most fully prohibited the crime of them is charged upon the practisers of those Arts but the crime of having a Familiar Spirit is not there condemned but the consulter of a Familiar Spirit so in Levit. 19. 31. the prohibition is Regard not them that have Familiar Spirits and so in Levit. 20. 6. The Soul that turneth after such as have Familiar Spirits so that it was not the having but the consulting was condemned If we draw nearer to the words of the Text it will be found that these words a Consulter with a Familiar Spirit are no other than a Consulter with Ob where the question will be what Ob signifieth Expositors agree that originally Ob signifieth a Bottle and they say is applyed here to one possessed with an evil Spirit and speaketh with a hollow voice as out of a Bottle but for this I find no proof they bring out of Scripture that saith or expoundeth that Ob signifieth one possessed with a Familiar Spirit in the Belly the onely proof is that the Greek Interpreters of the Bible Translate it Engastromuthi which is speaking in the Belly and the word anciently and long before the time of the Septuagint Translators was properly used for one that had the cunning or slight to shut his mouth and seem to speak with his Belly which that it can be done without the help of a Familiar Spirit experience of this Age sheweth in an Irishman We do not find it said that the Woman of Endor did fore-tell any thing to Saul by the hollow voice of a Familiar Spirit in her Belly neither did Saul require nor the Woman promise so to answer him but he required Bring me him up who I shall name unto thee and she undertook to do it which argues a desire in Saul to consult with the dead which is called Necromancy or consulting with the dead But it hath been said she raised the Devil in Samuels likeness yet there is no such thing said in the Text when the Woman went about her work the first thing noted is that when she saw Samuel she cryed out with a loud voice An Argument she was frighted with seeing something she did not expect to see it is not said that when she knew Saul but when she saw Samuel she cryed out with a lowd voice when she knew Saul she had no reason to be afraid but rather comforted for that she had his Oath for her security It may well be that if either she had a Familiar Spirit or the Art of hollow-speaking her intention was to deceive Saul and