first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 Hen. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintifs Atturney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcell of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the Kings Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues an counseil comment ils voilent que nous devomus faire nous volums faire autrement nient en oest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet lie confesseth that by their Writ they have Power both to treat and to give Councel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with Us the Prelates Great men and Peers to treat and give your Counsel The words of the Judges Writ are that you be present with Us and others of the Counsel and sometimes with Us only to treat and give your Counsel The Judges usually joyned in Committees with the Lords in all Parliaments even in Queen Eliz. Reign untill her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have Liberty in the upper House it self upon Leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the Manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges who are to inform them what the Law is and to direct them in their Iudgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Iudges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31. Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain iâ—… Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyâ—… the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop 〈◊〉 Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes there Sir Iohn Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion wâ—… delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath 〈◊〉 Vote at all no more than in other Courts of ministerial Iurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with Him in giving Judgement But if by no Vote is meant he hath no Power to judge we dispoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King to judge them if the dernier resoâ—… be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did
please to give him and such laws to govern by as they shall make choice of can he shew that ever any Monarch was so gracious or kind-hearted as to lay down his lawful power freely at his Subjects feet is it not sufficient grace if such an absolute Monarch be content to set down a Law to himself by which he will ordinarily govern but he must needs relinquish his old independent commission and take a new one from his Subjects clog'd with limitations Finally I observe that howsoever our Author speak big of the radical fundamental and original power of the people as the root of all Soveraignty yet in a better moode he will take up and be contented with a Monarchy limited by an after-condescent and act of grace from the Monarch himself Thus I have briefly touched his grounds of Limited Monarchy if now we shall ask what proof or examples he hath to justifie his doctrine he is as mute as a fish onely Pythagoras hath said it and we must believe him for though our Author would have Monarchy to be limited yet he could be content his opinion should be absolute and not limited to any rule or example The main Charge I have against our Author now remains to be discussed and it is this That instead of a Treatise of Monarchy he hath brought forth a Treatise of Anarchy and that by his own confessions shall be made good First he holds A limited Monarch transcends his bounds if he commands beyond the law and the Subject legally is not bound to subjection in such cases Now if you ask the Author who shall be judge whether the Monarch transcend his bounds and of the excesses of the soveraign power His answer is There is an impossibility of constituting a judge to determine this last controversie I conceive in a limited legal Monarchy there can be no stated internal Iudge of the Monarchs actions if there grow a fundamental â—…riance betwixt him and the community There can be no Iudge legal and constituted within that form of government In these answers it appears there is no Judge to determine the Soveraigns or the Monarchs transgressing his fundamental limits yet our Author is very cautelous and supposeth onely a fundamental variance betwixt the Monarch and the Community he is ashamed to put the question home I demand of him if there be a variance betwixt the Monarch and any of the meanest persons of the Community who shall be the Judge for instance The King commands me or gives judgement against me I reply His commands are illegal and his judgment not according to Law who must judge if the Monarch himself judge then you destroy the frame of the State and make it absolute saith our Author and he gives his reason for to define a Monarch to a Law and then to make him judge of his own deviations from that Law is to absolve him from all Law On the other side if any or all the people may judge then you put the Soveraignty in the whole body or part of it and destroy the being of Monarchy Thus our Author hath caught himself in a plain dilemma If the King be judge then he is no limited Monarch If the people be judge then he is no Monarch at all So farewell limited Monarchy nay farewell all government if there be no Judge Would you know what help our Author hath found out for this mischief First he saith that a Subject is bound to yield to a Magistrate when he cannot de jure challenge obedience if it be in a thing in which he can possibly without subversion and in which his act may not be made a leading case and so bring on a prescription against publick liberty Again he saith If the act in which the exorbitance or transgression of the Monarch is supposed to be bâ—… of lesser moment and not striking at the very being of that Government it ought to be born by publick patience rather than to endanger the being of the State The like words he uses in another place saying If the will of the Monarch exceed the limits of the law it ought to bâ—… submitted to so it be not contrary to Gods Law nor bring with it such an evil to our selves or the publick that we cannot be accessary to it by obeying These are but fig-leaves to cover the nakedness of our Authors limited Monarch formed upon weak supposals in cases of lesser moment For if the Monarch be to govern onely according to Law no transgression of his can be of so small moment if he break the bounds of Law but it is a subversion of the government it self and may be made a leading case and so bring on a prescription against publick liberty it strikes at the very being of the Government and brings with it such an evil as the party that suffers or the publick cannot be accessory to let the case be never so small yet if there be illegality in the act it strikes â—…t the very being of limited Monarchy which is to be legal unless our Author will say as in effect he doth That his limited Monarch must govern according to Law in great and publick matters onely and that in smaller matters which concern private men or poor persons he may rule according to his own will Secondly our Author tells us if the Monarchs act of exorbitancy or transgression be mortal and such as suffered dissolves the frame of Government and publick liberty then the illegality is to be sâ—…t open and redresment sought by petition which if failing prevention by resistance ought to be and if it be apparent and appeal be made to the consciences of mankind then the fundamental Laws of that Monarchy must judge and pronounce the sentence in every mans conscience and every man so far as concerns him must follow the evidence of Truth in his own soul to oppose or not to oppose according as he can in conscience acquit or condemn the act of the governour or Monarch Whereas my Author requires that the destructive nature of illegal commands should be set open Surely his mind is That each private man in his particular case should make a publick remonstrance to the world of the illegal act of the Monarch and then if upon his Petition he cannot be relieved according to his desire he ought or it is his duty to make resistance Here I would know who can be the judge whether the illegality be made apparent it is a main point since every man is prone to flatter himself in his own cause and to think it good and that the wrong or injustice he suffers is apparent when other moderate and indifferent men can discover no such thing and in this case the judgement of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erronious Yet our Author will have an appeal made to the conscience of all Man-kind and
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions 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 or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
of the Dutchy were sent by the House to the Lord Keeper in the name of the whole House to require his Lordship to revoke two Writs of Subpoena's which were served upon M. Th. Knevit a Member of the House since the Beginning of Parliament The Lord Keeper demanded of them whether they were appointed by any advised Consideration of the House to deliver this Message unto him with the word Required in such manner as they had done or no they answered his Lordship yea his Lordship then said as he thought reverently and honourably of the House and of their Liberties and Privileges of the same so to revoke the said Subpoena's in that sort was to restrain Her Majesty in Her greatest Power which is Iustice in the Place wherein he serveth under Her and therefore he concluded as they had required him to revoke his Writ so he did require to deliberate Upon the 22 of February being Wednesday 18 Eliz. Report was made by Mr. Attorney of the Dutchy upon the Committee for the delivering of one Mr. Hall's man that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ and that by divers Precedents of Records perused by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Privilege hath used in that case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the party for whom such Writ is prayed Came up with him and was his Servant at the time of the Arrest made Thereupon M. Hall was moved by the House to repair to the Lord Keeper and make Oath and then take a Warrant for a Writ of Privilege for his Servant It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice and Officers of State yet there is not the meanest Subjest but hath liberty upon just cause to question the misdemeanour of any Court or Officer if he suffer by them there is no Law against him for so doing so that this cannot properly be called a Privilege because it is not against any publick Law It hath been esteemed a great Favour of Princes to permit such Examinations For when the Lords were displeased with the Greatness of Pierce Gaveston it is said that in the next Parliament the whole Assembly obtain of the King to draw Articles of their Grievances which they did Two of which Articles were First that all Strangers should be banished the Court and Kingdom oâ—… which Gaveston was one Secondly that the business of the State should be treated of by the Councel of the Clergy and Nobles In the Reign of King Henry the sixth one Mortimer an Instrument of the Duke of York by promising the Kentish men a Reformation and freedom from Taxations wrought with the people that they drew to a Head and made this Mortimer otherwise Iack Cade their Leader who styled himself Captain Mend-all He presents to the Parliament the Complaints of the Commons and he petitions that the Duke of York and some other Lords might be received by the King into favour by the undue Practices of Suffolk and his Complices commanded from his Presence and that all their Opposites might be banished the Court and put from their Offices and that there might be a general amotion of corrupt Officers These Petitions are sent from the Lower House to the Upper and from thence committed to the Lords of the Kings Privy Councel who having examined the particulars explode them as frivolous and the Authors of them to be presumptuous Rebels Concerning Liberty or freedom of Speech I find that at a Parliament at Black Friars in the 14 of Henry the Eighth Sir Tho. More being chosen Speaker of the House of Commons He first disabled himself and then petitioned the King that if in Communication and Reasoning any man in the Commons House should speak more largely than of duty they ought to do that all such Offences should be pardoned and to be entred of Record which was granted It is observable in this Petition that liberty or freedom of Speech is not a power for men to speak what they will or please in Parliament but a Privilege not to be punished but pardoned for the offence of speaking more largely than in duty ought to be which in an equitable construction must be understood of rash unadvised ignorant or negligent Escapes and Slips in Speech and not for wilful malicious Offences in that kind And then the Pardon of the King was desired to be upon Record that it might be pleaded in Bar to all Actions And it seemeth that Ric. Strood and his Complices were not thought sufficiently protected for their free Speech in Parliament unless their Pardon were confirmed by the King in Parliament for there is a printed Statute to that purpose in H. 8 ths time Touching the freedom of Speech the Commons were warned in Q. Eliz. dayes not to meddle with the Queens Person the State or Church-government In her time the Discipline of the Church was so strict that the Litany was read every morning in the House of Commons during the Parliament and when the Commons first ordered to have a Fast in the Temple upon a Sunday the Queen hindred it 21 Ian. Saturday 23 Eliz. the Case is thus reported Mr. Paul Wentworth moveth for a Publick set Fast and for a Preaching every morning at 7 of the clock before the House sate the House was divided about the Fast 115 were for it and an 100 against it it was ordered that as many of the House as conveniently could should on Sunday fortnight after Assemble and meet together in the Temple-Church there to hear Preaching and to joyn together in Prayer with Humiliation and Fasting for the Assistance of God's Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and Her Realms And the Preachers to be appointed by the Privy Councel that were of the House that they may be Discreet not medling with Innovation or Unquietness This Order was followed by a Message from Her Majesty to the House declared by Mr. Vice-chamberlain that Her Highness had a great Admiration of the rashness of this House in committing such an apparent Contempt of her express Command as to put in execution such an Innovation without Her privity or pleasure first known Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty acknowledging the said Offence and Contempt craving a Remission of the same with a full purpose to forbear the Committing of the like hereafter and by the Consent of the whole House Mr. Vice-chamberlain carried their Submission to her Majesty 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords of the upper House to be Suppliants with them of the lower House unto her Majesty for entailing the Succession of the Crown Whereof a Bill
HUNTON'S Treatise of Monarchy Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 THE PREFACE WITH no small Content I read Mr. Hobs's Book De Cive and his Leviathan about the Rights of Sovereignty which no man that I know hath so amply and judiciously handled I consent with him about the Rights of exercising Government but I cannot agree to his means of acquiring it It may seem strange I should praise his Building and yet mislike his Foundation but so it is his Jus Naturae and his Regnum Institutivum will not down with me they appear full of Contradiction and Impossibilities a few short Notes about them I here offer wishing he would consider whether his Building would not stand firmer upon the Principles of Regnum Patrimoniale as he calls it both according to Scripture and Reason Since he confesseth the Father being before the institution of a Commonwealth was Originally an Absolute Sovereign with power of Life and Death and that a great Family as to the Rights of Sovereignty is a little Monarchy If according to the order of Nature he had handled Paternal Government before that by Institution there would have been little liberty left in the Subjects of the Family to consent to Institution of Government In his pleading the Cause of the People he arms them with a very large Commission of Array which is a Right in Nature for every Man to war against every Man when he please and also a Right for all the People to govern This latter Point although he affirm in Words yet by Consequence he denies as to me it seemeth He saith a Representative may be of All or but of a Part of the People If it be of All he terms it a Democratie which is the Government of the People But how can such a Commonwealth be generated for if every man Covenant with every man who shall be left to be the Representative if All must be Representatives who will remain to Covenant for â—…e that is Sovereign makes no Covenant by his Doctrine It is not All that will come together that makes the Democratie but All that have power by Covenant thus his Democratie by Institution fails The same may be said of a Democratie by acquisition for if all be Conquerours who shall Covenant for Life and Liberty and if all be not Conquerours how can it be a Democratie by Conquest A Paternal Democratie I am confident he will not affirm so that in conclusion the poor People are deprived of their Government if there can be no Democratie by his Principles Next If a Representative Aristocratical of a Part of the People be free from Covenanting then that whole Assembly call it what you will though it be never so great is in the state of Nature and every one of that Assembly hath a Right not only to kill any of the Subjects that they meet with in the streets but also they all have a natural Right to cut one anothers throats even while they sit together in Councel by his Principles In this miserable condition of War is his Representative Aristocratical by Institution A Commonwealth by Conquest he teacheth is then acquired when the Vanquished to avoid present Death Covenanteth that so long as his Life and the liberty of his Body is allowed him the Victor shall have the Use of it at his pleasure Here I would know how the Liberty of the Vanquished can be allowed if the Victor have the Use of it at pleasure or how it is possible for the Victor to perform his Covenant except he could alwayes stand by every particular man to protect his Life and Liberty In his Review and Conclusion he resolves that an ordinary Subject hath liberty to submit when the means of his Life is within the Guards and Garisons of the Enemy It seems hereby that the Rights of Sovereignty by Institution may be forfeited for the Subject cannot be at liberty to submit to a Conquerour except his former Subjection be forfeited for want of Protection If his Conquerour be in the state of nature when he conquers he hath a Right without any Covenant made with the conquered If Conquest be defined to be the acquiring of Right of Sovereignty by Victory why is it said the Right is acquired in the Peoples Submission by which they contract with the Victor promising Obedience for Life and Liberty hath not every one in the state of Nature a Right to Sovereignty before Conquest which onely puts him in possession of his Right If his Conquerour be not in the state of Nature but a Subject by Covenant how can he get a Right of Sovereignty by Conquest when neither he himself hath Right to Conquer nor Subjects a liberty to Submit since a former Contract lawfully made cannot lawfully be broken by them I wish the Title of the Book had not been of a Common-Wealth but of a Weal Publick or Common-weal which is the true word Carefully observed by our Translator of Bodin de Republica into English Many ignorant men are apâ—… by the Name of Common-wealth to understand a Popular Government wherein Wealth and all things shall be Common tending to the Levelling Community in the state of pure Nature OBSERVATIONS ON Mr. HOBS's LEVIATHAN OR HIS ARTIFICIAL MAN A Commonwealth I. IF God created only Adam and of a Piece of him made the Woman and if by Generation from them two as parts of them all Mankind be propagated If also God gave to Adam not only the Dominion over the Woman and the Children that should issue from them but also over the whole Earth to subdue it and over all the Creatures on it so that as long as Adam lived no man could claim or enjoy any thing but by Donation Assignation or Permission from him I wonder how the Right of Nature can be imagined by Mr. Hobs which he saith pag. 64. is a Liberty for each man to use his own Power as he will himself for Preservation of his own Life a Condition of War of every one against every one a Right of every man to every thing even to one anothers Body especially since himself affirms pag. 178. that originally the Father of every man was also his Sovereign Lord with Power over him of Life and Death II Mr. Hobs confesseth and believes it was never generally so that there was such a jus naturae and if not generally then not at all for one exception bars all if he mark it well whereas he imagines such a Right of Nature may be now practised in America he confesseth a Government there of Families which Government how small or brutish soever as he calls it is sufficient to destroy his jus naturale III. I cannot understand how this Right of Nature can be conceived without imagining a Company of men at the very first to have been all Created together without any Dependency one of another or as Mushroms fungorum more they all on a sudden were sprung out of the Earth without any
Obligation one to another as Mr. Hobs's words are in his Book De Cive cap. 8. sect 3. the Scripture teacheth us otherwise that all men came by Succession and Generation from one man we must not deny the Truth of the History of the Creation IV. It is not to be thought that God would create man in a Condition worse than any Beasts as if he made men to no other End by Nature but to destroy one another a Right for the Father to destroy or eat his Children and for Children to do the like by their Parents is worse than Canibals This horrid Condition of pure Nature when Mr. Hobs was charged with his Refuge was to answer that no Son can be understood to be in this state of pure Nature which is all one with denying his own Principle for if men be not free-born it is not possible for him to assign and prove any other time for them to claim a Right of Nature to Liberty if not at their Birth V. But if it be allowed which is yet most false that a Company of men were at first without a common Power to keep them in Awe I do not see why such a Condition must be called a State of War of all men against all men indeed if such a Multitude of men should be created as the Earth could not well nourish there might be Cause for men to destroy one another rather than perish for want of Food but God was no such Niggard in the Creation and there being Plenty of Sustenance and Room for all men there is no Cause or Use of War till men be hindred in the Preservation of Life so that there is no absolute Necessity of War in the State of pure Nature it is the Right of Nature for every man to live in Peace that so he may tend the Preservation of his life which whilst he is in actual War he cannot do War of it self as it is War preserves no mans Life it only helps us to preserve and obtain the Means to live if every man tend the Right of preserving Life which may be done in Peace there is no Cause of War VI. But admit the State of Nature were the State of War let us see what Help Mr. Hobs hath for it It is a Principle of his that the Law of Nature is a Rule found out by Reason I do think it is given by God pag. 64. forbidding a man to do that which is destructive to his Life and to omit that by which he thinks it may be best preserved If the Right of Nature be a Liberty for a man to do any thing he thinks fit to preserve his Life then in the first Place Nature must teach him that Life is to be preserved and so consequently forbids to do that which may destroy or take away the means of life or to omit that by which it may be preserved and thus the Right of Nature and the Law of Nature will be all one for I think Mr. Hobs will not say the Right of Nature is a Liberty for man to destroy his own Life The Law of Nature might better have been said to consist in a Command to preserve or not to omit the Means of preserving Life than in a Prohibition to destroy or to omit it VII Another Principle I meet with pag. 65. If other men will not lay down their Right as well as he then there is no Reason for any to devest himself of his Hence it follows that if all the men in the World do not agree no Common-wealth can be established it is a thing impossible for all the men in the World every man with every man to Covenant to lay down their Right Nay it is not possible to be done in the smallest Kingdom though all men should spend their whole Lives in nothing else but in running up and down to Covenant VIII Right may be laid aside but not transfer'd for pag. 65. he that renounceth or passeth away his Right giveth not to any other man a Right which he had not before and reserves a Right in himself against all those with whom he doth not Covenant IX Pag. 87. The only way to erect a Common Power or a Commonwealth is for men to confer all their Power and Strength upon one man or one Assembly of men that may reduce all their Wills by Plurality of Voices to one Will which is to appoint one man or an Assembly of men to bear their Person to submit their Wills to his Will this is a real Unity of them all in one Person made by Covenant of every man with every man as if every man should say to every man I authorise and give up my Right of Governing my self to this man or this Assembly of men on this Condition that thou give up thy Right to him and authorise all his Actions This done the Multitude so united in one Person is called a Commonwealth To authorise and give up his Right of Governing himself to confer all his Power and Strength and to submit his Will to another is to lay down his Right of resisting for if Right of Nature be a Liberty to use Power for Preservation of Life laying down of that Power must be a Relinquishing of Power to preserve or defend Life otherwise a man relinquisheth nothing To reduce all the Wills of an Assembly by Plurality of Voices to one Will is not a proper Speech for it is not a Plurality but a Totality of Voices which makes an Assembly be of one Will otherwise it is but the one Will of a major part of the Assembly the Negative Voice of any one hinders the Being of the one Will of the Assembly there is nothing more destructive to the true Nature of a lawful Assembly than to allow a major part to prevail when the whole only hath Right For a man to give up his Right to one that never Covenants to protect is a great Folly since it is neither in Consideration of some Right reciprocally transferred to himself nor can he hope for any other Good by standing out of the way that the other may enjoy his own original Right without hinderance from him by reason of so much Diminution of Impediments pag. 66. X. The Liberty saith Mr. Hobs whereof there is so frequent and honourable Mention in the Histories and Philosophy of the ancient Greeks and Romans and in the Writings and Discourse of those that from them have received all their Learning in the Politiques is not the Liberty of particular men but the Liberty of the Commonwealth Whether a Commonwealth be Monarchical or Popular the Freedom is still the same Here I find Mr. Hobs is much mistaken for the Liberty of the Athenians and Romans was a Liberty only to be found in popular Estates and not in Monarchies This is clear by Aristotle who calls a City a Community of Freemen meaning every particular Citizen to be free Not that every particular man had
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
his own Will V. If it be demanded what is meant by the word People 1. Sometimes it is Populus universus and then every Child must have his Consent asked which is impossible 2. Sometimes it is pars major and sometimes it is pars potior sanior How the major part where all are alike free can bind the minor part is not yet proved But it seems the major part will not carry it nor be allowed except they be the better part and the sounder part We are told the sounder part implored the help of the Army when it saw it self and the Commonwealth betrayed and that the Souldiers judged better than the Great Councel and by Arms saved the Commonwealth which the Great Councel had almost damned by their Votes p. 7. Here we see what the People is to wit the sounder part of which the Army is the judge thus upon the matter the Souldiers are the People which being so we may discern where the Liberty of the People lieth which we are taught to consist all for the most part in the power of the Peoples Choosing what Form of Government they please pag. 61. A miserable Liberty which is onely to choose to whom we will give our Liberty which we may not keep See more concerning the People in a Book entituled The Anarchy p. 8 9 10 11 12 13 14. VI. We are taught that a Father and a King are things most diverse The Father begets us but not the King but we create the King Nature gives a Father to the People the People give themselves a King If the Father kill his Son he loseth his life why should not the King also p. 34. Ans. Father and King are not so diverse it is confessed that at first they were all one for there is confessed Paternum imperium haereditarium p. 141. and this Fatherly Empire as it was of it self hereditary so it was alienable by Patent and seizable by an Usurper as other goods are and thus every King that now is hath a Paternal Empire either by Inheritance or by Translation or Usurpation so a Father and a King may be all one A Father may dye for the Murther of his Son where there is a Superiour Father to them both or the Right of such a Supreme Father but where there are onely Father and Sons no Sons can question the Father for the death of their Brother the reason why a King cannot be punished is not because he is excepted from Punishment or doth not deserve it but because there is no Superiour to judge him but God onely to whom he is reserved VII It is said thus He that takes away from the People the power of Choosing for themselves what Form of Government they please he doth take away that wherein all Civil Liberty almost consists p. 65. If almost all Liberty be in Choosing of the Kind of Government the People have but a poor Bargain of it who cannot exercise their Liberty but in Chopping and Changing their Government and have liberty onely to give away their Liberty than which there is no greater mischief as being the cause of endless Sedition VIII If there be any Statute in our Law by which thou canst find that Tyrannical Power is given to a King that Statute being contrary to Gods Will to Nature and Reason understand that by that general and primary Law of ours that Statute is to be repealed and not of force with us p. 153. Here if any man may be judge what Law is contrary to Gods Will or to Nature or to Reason it will soon bring in Confusion Most men that offend if they be to be punished or fined will think that Statute that gives all Fines and Forfeitures to a King to be a Tyrannical Law thus most Statutes would be judged void and all our Fore-fathers taken for Fools or Madmen to make all our Laws to give all Penalties to the King IX The sin of the Children of Israel did lye not in Desiring a King but in desiring such a King like as the Nations round about had they distrusted God Almighty that governed them by the Monarchical Power of Samuel in the time of oppression when God provided a Judge for them but they desired a perpetual and hereditary King that they might never want in Desiring a King they could not sin for it was but Desiring what they enjoyed by Gods special Providence X. Men are perswaded that in Making of a Covenant something is to be performed on both parts by mutual Stipulation which is not alwayes true for we find God made a Covenant with Noah and his Seed with all the Fowl and the Cattel not to destroy the Earth any more by a flood This Covenant was to be kept on Gods part neither Noah nor the Fowl nor the Cattel were to perform any thing by this Covenant On the other side Gen. 17. 9 10. God covenants with Abraham saying Thou shalt keep my Covenant every male child among you shall be circumcised Here it is called Gods Covenant though it be to be performed onely by Abraham so a Covenant may be called the Kings Covenant because it is made to him and yet to be performed only by the People So also 2 Kin. 11. 17. Iehoiada made a Covenant between the Lord and the King and the People that they should be the Lords People Between the King also and the People which might well be that the People should be the Kings Servants and not for the King 's covenanting to keep any Humane Laws for it is not likely the King should either Covenant or take any Oath to the People when he was but seven years of age and that never any King of Israel took a Coronation-Oath that can be shewed when Iehoiada shewed the King to the Rulers in the House of the Lord he took an Oath of the People he did not Article with them but saith the next Verse Commanded them to keep a Watch of the Kings House and that they should compass the King around about every man with his weapon in his hand and he that cometh within the Ranges let him be slain XI To the Text Where the word of a King is there is Power and who may say unto him What dost thou J. M. gives this Answer It is apparent enough that the Preacher in this place gives Precepts to every private man not to the great Sanhedrin nor to the Senate shall not the Nobles shall not all the other Magistrates shall not the whole People dare to mutter so oft as the King pleaseth to dote We must here note that the great Councel and all other Magistrates or Nobles or the whole People compared to the King are all but private men if they derive their Power from him they are Magistrates under him and out of his Presence for when he is in place they are but so many private men I. M. asks Who swears to a King unless the King on the other side be sworn
to bind he adds of Many because there is as he grants scarce any Law to be found common to all Nations besides the Law of Nature which also is wont to be called the Law of Nations being common to all Nations Nay as he confesseth often that is the Law in one part of the World which in another part of the World is not the Law of Nations By these Sentences it seems Grotius can scarce tell what to make to be the Law of Nations or where to find it Whereas he makes the Law of Nations to have a binding Power from the Will of men it must be remembred that it is not sufficient for men to have a Will to bind but it is necessary also to have a Power to bind Though several Nations have one and the same Law For instance Let it be granted that Theft is punished by Death in many Countreys yet this doth not make it to be a Law of Nations because each Nation hath it but as a Natural or Civil Law of their own Countrey and though it have a binding Power from the Will of many Nations yet because each Nation hath but a Will and Power to bind themselves and may without prejudice consent or consulting of any Neighbour-Nation Alter this Law if they find Cause it cannot properly be called the Law of Nations That which is the foundation of the Law of Nations is to have it concern such things as belong to the mutual Society of Nations among themselves as Grotius confesseth and not of such things as have no further relation than to the particular Benefit of each Kingdom For as private men must neglect their own Profit for the Good of their Countrey so particular Nations must sometimes remit part of their Benefit for the Good of many Nations True it is that in particular Kingdomes and Common-wealths there be Civil and National Laws and also Customs that obtain the Force of Laws But yet such Laws are ordained by some supreme Power and the Customs are examined judged and allowed by the same supreme Power Where there is no Supreme Power that extends over all or many Nations but only God himself there can be no Laws made to bind Nations but such as are made by God himself we cannot find that God made any Laws to bind Nations but only the Moral Law as for the Judicial Law though it were ordained by God yet it was not the Law of Nations but of one Nation only and fitted to that Commonwealth If any think that the Customs wherein many Nations do consent may be called the Law of Nations as well as the Customs of any one Nation may be esteemed for national Laws They are to consider that it is not the being of a Custom that makes it lawful for then all Customs even evil Customs would be lawful but it is the Approbation of the supreme Power that gives a Legality to the Custom where there is no Supreme Power over many Nations their Customs cannot be made legal The Doctrine of Grotius is that God immediately after the Creation did bestow upon Mankind in general a Right over things of inferiour Nature From whence it came to pass that presently every man might snatch what he would for his own Use and spend what he could and such an Universal Right was then in stead of Property for what every one so snatched another could not take from him but by Injury How repugnant this Assertion of Grotius is to the Truth of Holy Scripture Mr. Selden teacheth us in his Mare Clausum saying that Adam by Donation from God Gen. 1. 28. was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children and by Donation and Assignation or some kind of Cession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City This Determination of Mr. Selden's being consonant to the History of the Bible and to natural Reason doth contradict the Doctrine of Grotius I cannot conceive why Mr. Selden should afterwards affirm that neither the Law of Nature nor the Divine Law do cammand or forbid either Communion of all things or private Dominion but permitteth both As for the general Community between Noah and his Sons which Mr. Selden will have to be granted to them Gen. 9. 2. the Text doth not warrant it for although the Sons are there mentioned with Noah in the Blessing yet it may best be understood with a Subordination or a Benediction in Succession the Blessing might truly be fulfilled if the Sons either under or after their Father enjoyed a Private Dominion it is not probable that the private Dominion which God gave to Adam and by his Donation Assignation or Cession to his Children was abrogated and a Community of all things instituted between Noah and his Sons at the time of the Flood Noah was left the sole heir of the World why should it be thought that God would dis-inherit him of his Birth-right and make him of all the men in the World the only Tenant in Common with his Children If the Blessing given to Adam Gen. 1. 28. be compared to that given to Noah and his Sons Gen. 9. 2. there will be found a considerable Difference between those two Texts In the Benediction of Adam we find expressed a subduing of the Earth and a Dominion over the Creatures neither of which are expressed in the Blessing of Noah nor the Earth there once named it is only said The Fear of you shall be upon the Creatures and into your hands are they delivered then immediately it follows Every moving thing shall be meat for you as the green Herb The first Blessing gave Adam Dominion over the Earth and all Creatures the latter allows Noah Liberty to use the living Creatures for Food here is no Alteration or diminishing of his Title to a Propriety of all things but an Enlargement onely of his Commons But whether with Grotius Community came in at the Creation or with Mr. Selden at the Flood they both agree it did not long continue Sed veri non est simile hujusmodi communionem diu obtinuisse is the confession of Mr. Selden It seems strange that Grotius should maintain that Community of all things should be by the Law of Nature of which God is the Author and yet such Community should not be able to continue Doth it not derogate from the Providence of God Almighty to ordain a Community which could not continue or doth it make the Act of our Fore-fathers in Abrogating the natural Law of Community by introducing that of Propriety to be a Sin of a high presumption The prime Duties of the Second Table are conversant about the Right of Propriety but if Propriety be brought in
is void being made by any Owner whatsoever against the â—…ules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the Power of a Parent dâ—…th so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith the Son is in all things Free and of his own Authority always that Duâ—… remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are alwayes bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws onely which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the Permission of the transcendent Fatherly power of the Supreme Prince Children may be dispensed with or privileged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth that the Power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith that the Power over the Son or Daughter to dissolve Vows was not perpetual but did indure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three wayes Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Usufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdome That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title onely make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth onely put the Conquerour in possession of his old Right but not create a New The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdome which gives a Form to the Kingdom but a Continuation of the Old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right onely for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are Free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he have a Title it is an unjust War that takes the Kingdom from him If he have no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule that where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the judgment of Grotius But if it be admitted that he that attempts to conquer have a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Ubi Iudicia deficiunt incipit Bellum Lib. 2. c. 1. And thus upon the matter I cannot find in Grotius's Book de Iure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est qua se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2. c. 5. If Subjection be the Gift of the People how can Supreme Power pleno Iure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a
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