Election of a Prince Is there any Example of it ever found in the Whole World To conceit such a thing is to â—magine little less than an Impossibility And so by Consequence no one Form of Government or King was ever established according to this supposed Law of Nature 6. It may be answered by some That if either the Greatest part of a Kingdom or if a smaller part only by Themselves and all the Rest by Proxy or if the part not concurring in Election do after by a Tacit Assent ratifie the Act of Others That in all thesâ— Cases it may be said to be the World of the whole Multitude As to the Acts of the Major part oâ— a Multitude it is true that by Politicâ— Humane Constitutions it is oft ordained that the Voices of the most shall over-rule the Bâ—est and such Ordinances bind because where Men are Assembled by an Humane Power that power that doth Assemble them can also Limit and Direct the manner of the Execution of that Power and by such Derivative Power made known by Law or Custom either the greater part or two Thirds or Three parts of Five or the like have power to oversway the Liberty of their Opposits But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no Inferiour Power can alter limit or diminishâ— no One Man nor a Multitude can give away the Natural Right of another The Law of Nature is unchangeable and howsoever One Man may hinder Another in the Use or Exercise of his Natural Right yet thereby No Man â—oseth the Right of it self for the Right â—nd the Use of the Right may be distinguished as Right and Possession are â—oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power â—o over-rule the Rest of the Multitude â—t must follow that the Acts of Multitudes not Entire are not Binding to All but only to such as Consent unto them 7. As to the point of Proxy it cannot be shewed or proved That all those that have been Absent from Popular Elections did ever give their Voices to some of their Fellows I ask but one Example out of the History of the whole World let the Commonweal be but named wherever the Multitude or so much as the Greatest part of it consented either by Voice or by Procuration to the Election of a Prince The Ambition sometimes of One Man sometimes of Many or the Faction of a City or Citizens or the Mutiny of an Army hath set up or put down Princes but they have never tarried for this pretended Order by proceeding of the whole Multitude Lastly if the silent Acceptation oâ— a Governour by part of the People be an Argument of their Concurring iâ— the Election of him by the same Reason the Tacit Assent of the whole Commonwealth may be maintained From whence it follows that every Prince that comes to a Crown either by Succession Conquest or Usurpation may be said to be Elected by the People which Inference is too ridiculous for in such Cases the People are so far from the Liberty of Specification that they want even that of Contradiction 8. But it is in vain to argue against the Liberty of the People in the Election of Kings as long as men are perswaded that Examples of it are to be found in Scripture It is fit therefore to discover the Grounds of this Errour It is plain by an Evident Text that it is one thing to choose a King and another thing to set up a King over the People this latter power the Children of Israel had but not the former This Distinction is found most evidenâ— in Deut. 17. 15. where the Law of God saith Him shalt thou set King over thee whom â—â—e Lord shall choose so God must Eliâ—e and the People only do Constituâ—e Mr. Hooker in his Eighth Book â—f Ecclesiastical Policy clearly expounds â—is Distinction the words are worthy â—â—e citing Heaps of Scripture saith he â—e alledged concerning the Solemn Coroâ—â—tion or Inauguration of Saul David Soâ—mon and others by Nobles Ancients and the people of the Commonwealth of Isrâ—el as if these Solemnities were a kind of Deed whereby the Right of Dominion is given which strange untrue and unnatural conceits are set abroad by â—ed-men of Rebellion only to animate â—nquiet Spirits and to feed them with â—ossibilities of Aspiring unto the Thrones they can win the Hearts of the People whatsoever Hereditary Title any other before them may have I say these â—njust and insolent Positions I would â—ot mention were it not thereby to make the Countenance of â—ruth more Orient For unless we will openly proclaim Defiance unto all â—aw Equity and Reason we must for â—here is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessoâ— putteth the Successor by Blood in Sâ—sin Those publick Solemnities before mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of induciâ—â— of him into possession of that thing â—â— hath Right unto This is Mr. Hooker Judgment of the Israelites Power tâ— set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made Choice of Joas a Child but of Seven years old nor of Manases a Boy of Twelve since as Solomon saith Wo to the Land whose King a Child Nor is it probable they would have elected Josias but a very Child and a Son to so Wicked and Idoâ—trous a Father as that his own Servants murthered him and yet all thâ— people set up this young Josias anâ— slew the Conspirators of the Death oâ— Ammon his Father which Justice of the People God rewarded by making this Josias the most Religious King thaâ— ever that Nation enjoyed 9. Because it is affirmed that â—e People have power to choose as â—ell what Form of Government as â—hat Governours they please of which mind is Bellarmine in those â—aces we cited at first Therefore it necessary to Examine the Strength â— what is said in Defence of popular Commonweals against this Natural Form of Kingdoms which I maintain'd Here I must first put the â—ardinal in mind of what he affirms Cold Blood in other places where saith God when he made all Manâ—d of One Man did seem openly to â—â—nifie that he rather approved the Goâ—â—rnment of One Man than of Many â—â—ain God shewed his Opinion â—â—en he endued not only Men but Creatures with a Natural Propensiâ—â— to Monarchy neither can it be â—â—ubted but a Natural Propensity is be referred to God who is Auâ—â—or of Nature And again in a â—â—ird place What Form of Government God confirmed by his Authoriâ—â— may be gathered by that Commonâ—al which he instituted amongst the Hebrews which was not Aristocratical as
Flesh and Blood for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude who magnifie Liberty as if the height of Humane Felicity were only to be found in it never remembring That the desire of Liberty was the first Cause of the Fall of Adam But howsoever this Vulgar Opinion hath of late obtained a great Reputation yet it is not to be found in the Ancient Fathers and Doctors of the Primitive Church It contradicts the Doctrine and History of the Holy Scriptures the constant Practice of all Ancient Monarchies and the very Principles of the Law of Nature It is hard to say whether it be more erroneous in Divinity or dangerous in Policy Yet upon the ground of this Doctrine both Jesuites and some other zealous favourers of the Geneva Discipline have built a perillous Conclusion which is That the People or Multitude have Power to punish or deprive the Prince if he transgress the Laws of the Kingdom witness Parsons and Buchanan the first under the name of Dolman in the Third Chapter of his First Book labours to prove that Kings have been lawfully chastised by their Commonwealths The â—atter in his Book De jure Regni apud Scotos maintains A Liberty of the People to depose their Prince Cardinal Bellarmine and Calume both look asquint this way This desperate Assertion whereby Kings are made subject to the Censures and Deprivations of their Subjects follows as the Authors of it conceive as a necessary Consequence of that former Position of the supposed Natural Equality and Freedom of Mankind and Liberty to choose what form of Government it please And though Sir John Heyward Adam Blackwood John Barclay and some others have Learnedly Confuted both Buchanan and Parsons and bravely vindicated the Right of Kings in most Points yet all of them when they come to the Argument drawn from the Natural Liberty and Equality of Mankind do with one consent admit it for a Truth unquestionable not so much as once denying or opposing it whereas if they did but confute this first erroneous Principle the whole Fabrick of this vast Engine of Popular Sedition would drop down of it self The Rebellious Consequence which follows this prime Article of the Natural Freedom of Mankind may be my Sufficient Warrant for a modest Examination of the original Truth of it much hath been said and by many for the Affirmative Equity requires that an Ear be reserved a little for the Negative In this DISCOURSE I shall give my self these Cautions First I have nothing to do to medle with Mysteries of State such Arcana Imperii or Cabinet-Councels the Vulgar may not pry into An implicite Faith is given to the meanest Artificer in his own Craft how much more is it then due to a Prince in the profound Secrets of Government The Causes and Ends of the greatest politique Actions and Motions of State dazle the Eyes and exceed the Capacities of all men save only those that are hourly versed in the managing Publique Affairs yet since the Rule for each men to know in what to obey his Prince cannot be learnt without a relative Knowledge of those Points wherein a Sovereign may Command it is necessary when the Commands and Pleasures of Superiours come abroad and call for an Obedience that every man himself know how to regulate his Actions or his Sufferings for according to the Quality of the Thing commanded an Active or Passive Obedience is to be yielded and this is not to limit the Princes Power but the extent of the Subjects Obedience by giving to Caesar the things that are Caesar's c. Secondly I am not to question or quarrel â—â— the Rights or Liberties of this or any other Nation my task is chiefly to enquire from whom these first came not to dispute what or how many these are but whether they were derived from the Laws of Natural Liberty or from the Grace and Bounty of Princes My desire and Hope is that the people of England may and do enjoy as ample Privileges as any Nation under Heaven the greatest Liberty in the World if it be duely considered is for a people to live under a Monarch It is the Magna Charta of this Kingdom all other shews or pretexts of Liberty are but several degrees of Slavery and a Liberty only to destroy Liberty If such as Maintain the Natural Liberty of Mankind take Offence at the Liberty I take to Examine it they must take heed that they do not deny by Retail that Liberty which they affirm by Whole-sale For if the Thesis be true the Hypothesis will follow that all men may Examine their own Charters Deeds or Evidences by which they claim and hold the Inheritance or Freehold of their Liberties Thirdly I must not detract from the Worth of all those Learned Men who are of a contrary Opinion in the Point of Natural Liberty the profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable neither Aristotle in Philosophy nor Hooker in Divinity They are but Men yet I reverence their Judgements in most Points and confess my self beholding to their Errors too in this something that I found amiss in their Opinions guided me in the discovery of that Truth which I perswade my self they missed A Dwarf sometimes may see that which a Giant looks over for whilest one Truth is curiously searched after another must necessarily be neglected Late Writers have taken up too much upon Trust from the subtile School-men who to be sure to thrust down the King below the Pope thought it the safest course to advance the People above the King that so the Papal Power might take place of the Regal Thus many an Ignorant Subject hath been fooled into this Faith that a man may become a Martyr for his Countrey by being a Traytor to his Prince whereas the New-coyned distinction of Subjects into Royallists and Patriots is most unnatural since the relation between King and People is so great that their well-being is so Reciprocal 2 To make evident the Grounds of this Question about the Natural Liberty of Mankind I will lay down some passages of Cardinal Bellarmine that may best unfold the State of this Controversie Secular or Civil Power saith he is instituted by Men It is in the People unless they bestow it on a Prince This Power is immediately in the whole Multitude as in the Subject of it for this Power is in the Divine Law but the Divine Law hath given this Power to no particular Man If the Positive Law be taken away there is left no Reason why amongst a Multitude who are Equal one rather than another should bear Rule over the rest Power is given by the Multitude to one man or to more by the same Law of Nature for the Commonwealth cannot exercise this Power therefore it is bound to bestow it upon some One Man or some Few It depends upon the Consent of the Multitude
Calvin saith but plainly Monarchichal 10. Now if God as Bellarmie saith hath taught us by Natural Instinct signified to us by the Creation and confirmed by his own Example the Excellency of Monarchy why should Bellarmine or We doubt but that it is Natural Do we not find that in every Family the Government of One Alone is most Natural God did always Govern his own People by Monarchy only The Patriarchs Dukes Judges and Kings weâ—â— all Monarchs There is not in all the Scripture Mention or Approbation oâ— any other Form of Government Aâ— the time when Scripture saith Thâ— was No King in Israel but that eveâ— Man did that which was Right in â—â— Own Eyes Even then the Israelitâ—â— were under the Kingly Government of the Fathers of particular Families For in the Consultation after the Beâ— jamitical War for providing Wives fâ—â— the Benjamites we find the Elders â—â— the Congregation bare only Swaâ—â— Judges 21. 16. To them also were Complaints to be made as appears by Verse 22. And though mention be made of All the Children of Israel All the Congregation and All the People yet by the Term of All the Scripture means only All the Fathers and not All the Whole Multitude as the Text plainly expounds it self in 2. Chron. 1. 2. where Solomon speaks â—nto all Israel to the Captains the Judges and to Every Governour the Chief of the Fathers so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 Kings 8. 12. 2 Chron. 5. 2. At that time also when the People of Israel beg'd a King of Samuel they were Governed by Kingly Power God out of a special Love and Care to the House of Israel did choose to be their King himself and did govern them at that time by his Viceroy Samuel and his â—ons and therefore God tells Samuel They have not rejected Thee but Me that â— should not Reign over them It seems â—hey did not like a King by Deputation but desired one by Succession like all the Nations All Nations belike had Kings then and those by Inheritance not by Election for we do not find the Israelites prayed that they themselves might choose their Own King they dream of no such Liberty and yet they were the Elders of Israel gathered together If other Nations had Elected their own Kings no doubt but they would have been as desirous to have imitated Other Nations as well in the Electing as in the Having of a King Aristotle in his Book of Politicks when he comes to compare the several Kinds of Government he is very reserved in discoursing what Form hâ— thinks Best he disputes subtilely to and fro of many Points and Judiciously of many Errours but concludes nothing himself In all those Books I find little Commendation of Monarchy It was his Hap to live in those Times when the Grecians abounded with several Commonwealths who had then Learning enough to make them seditious Yet in his Ethicks he hath so much good Manners as to confess in right down words That Monarchy is the Best Form of Government and a Popular Estate the Worst And though he be not so free in his Politicks yet the Necessity of Truth hath here and there extorted from him that which amounts no less to the Dignity of Monarchy he confesseth it to be First the Natural and the Divinest Form of Government and that the Gods themselves did live under a Monarchy What can a Heathen say more Indeed the World for a long time â—new no other sort of Government out only Monarchy The Best Order the Greatest Strength the Most Stability and Easiest Government are to be found all in Monarchy and in to other Form of Government The New Platforms of Commonweals were first hatched in a Corner of the World amongst a few Cities of Greece which have been imitated by very â—ew other laces Those very Cities were first for many years governed by Kings untill Wantonness Ambition or Faction of the People made them attempt New kinds of Regiment all which Mutations proved most Bloody and Miserable to the Authors of them happy in nothing but that they continued but a small time 11. A little to manifest the Imperfection of Popular Government let us but examine the most Flourishing Democratie that the World hath ever known I mean that of Rome First for the Durability at the most it lasted but 480 Years for so long it was from the Expulsion of Tarquin to Julius Caesar Whereas both the Assyrian Monarchy lasted without Interruption at the least twelve hundred years and the Empire of the East continued 1495 Years 2. For the Order of it during these 480 years there was not any One settled Form of Government in Rome for after they had once lost the Natural Power of Kings they could not find upon what Form of Government to rest their Fickleness is an Evidence that they found things amiss in every Change At the First they chose two Annual Consuls instead of Kings Secondly those did not please them long but they must have Tribunes of the People to defend their Liberty Thirdly they leave Tribunes and Consuls and choose them Ten Men to make them Laws Fourthly they call for Consuls and Tribunes again sometimes they choose Dictators which were Temporary Kings and sometimes Military Tribunes who had Consular Power All these shiftings caused such notable Alteration in the Government as it passeth Historians to find out any Perfect Form of Regiment in so much Confusion One while the Senate made Laws another while the People The Dissentions which were daily between the Nobles and the Commons bred those memorable Seditions about Usury about Marriages and about Magistracy Also the Graecian the Apulian and the Drusian Seditions filled the Market-places the Temples and the Capitol it self with Blood of the Citizens the Social War was plainly Civil the Wars of the Slaves and the other of the Fencers the Civil Wars of Marius and Sylla of Cataline of Caesar and Pompey the Triumvirate of Augustus Lepidus and Antonius All these shed an Ocean of Blood within Italy and the Streets of Rome Thirdly for their Government let it be allowed that for some part of this time it was Popular yet it was Popular as to the City of Rome only and not as to the Dominions or whole Empire of Rome for no Democratie can extend further than to One City It is impossible to Govern a Kingdom much less many Kingdoms by the whole People or by the Greatest Part of them 12. But you will say yet the Roman Empire grew all up under this kind of Popular Government and the City became Mistress of the World It is not so for Rome began her Empire under Kings and did perfect it under Emperours it did only encrease under that Popularity Her â—reatest Exaltation was under Trajan â—s her longest Peace had been under Augustus Even at those times when the Roman Victories abroad did amaze the World then the
Cases some-what â—ike have been delivered by former â—udges who all receive Authority from the King in his Right and Name to give sentence according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where â—here have been Presidents to direct â—hey upon better Reason only have Changed the Law both in Causes Crimical and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their â—easons thence it is that some Laws are â—ow obsolete and out of use and the â—ractice quite contrary to what it was in Former Times as the Lord Chancellor Egerton proves by several Instances Nor is this spoken to Derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles Written and Established for witnesse to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law sqeaks in General and something falls out after besides the General Rule Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Generally it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it The Governour whether hâ— be one Man or more ought to be Lord â—ver all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot Determine it leaves to the Governours to give Judgment therein and permits them to rectifie whatsoever upon Tryal they find to be better than the Written Laws Besides all Laws are of themselves Dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this Cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still Representatively present in all Courts the Judges are but substituted and called the Kings Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if He were able since by vertue of his Oath he is Bound to it therefore the King ought to exercise Power as the Vicar or Minister of God but if our Lord the King be not able to determine every cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise men fearing God c and make Justices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by John Briton Bishop of Hereford We will saith he that our own Jurisdiction be above all the Jurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have power to yield such Judgments as do appertain without other Process wheresoever we know the right truth as Judges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that He might have always at hand able men for His Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made Stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Processe of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False