to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT As Described Viz. 1 st Upon Aristotles Politiques 2 d. Mr. Hobbs's Laviathan 3 d. Mr. Milton against Salmatius 4 th Hugo Grotius de Jure Bello 5 th Mr. Hunton's Treatise of Monarchy or the Nature of a limited or mixed Monarchy By the Learned Sir R. Filmer Barronet To which is added the Power of Kings With directions for Obedience to Government in Dangerous and Doubtful Times LONDON Printed for R. R. C. and are to be Sold by Thomas Axe at the Blew-Ball in Ducâ—-Lane 1696. Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1. The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Vnderstanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a Touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Council the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Vsage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty days before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and only such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellor tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Council there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Council to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore-rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall be first transmitted hither under the Great Seal of that Kingdom and having received Allowance and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Vsage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader Rob. Filmer A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER Knight I. The Free-holders Grand Inquest touching our Soveraign Lord the King and his Parliament To which are added Observations upon Forms of Government Together with Directions for Obedience
the said Statutes should be duly kept 2. That the Sheriffs shall deliver Precepts to Mayors and Bailiffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of Knights Citizens and Burgesses 4. The Penalty of 40 l. for Mayors or Bailiffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Freeholders but all others whosoever were present at the County-Court had Voices in such Elections See the Stat. 7 Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King James in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to give his best Advice to his Sovereign when he is thought worthy to have his Councel asked 13 Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the King's Honour the Salvation of the Realm and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence have warily avoided to give Advice 13 Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and the Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of which they had no Cognisance de queux ils n' ont pas de Cognisance 21 Edw. 3. Justice Thorp declaring to the Peers and Commons that the French War began by their Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to have their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6 Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two days Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7 Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooveful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a-days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates or which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium Finis Parliamentor ' as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate togther and that it appears in Edward the Third's time the Lords and Commons sate together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be endured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consultations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a setled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is
for him to enquire what and whence that Power is and how far it reacheth The chief Writ of Summons to the Peers was in these words CAROLUS Dei Gratia c. Reverendissimo in Christo patri G. eadem gratia Archiepiscopo Cantuariensi totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum caeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis in fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotiorum ardititate periculis imminentibus cessante quacunque excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrum ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatis Praemonentes Decanum Capitulum ecclesiae vestrae Cantuariensis ac Archidiaconos totumque Clerum vestrae Diocesis quod idem Decanus Archidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum hiis quae tunc ibidem de Commune Concilio ipsius Regni Nostri divina favente Clementia contigerint ordinari Teste Meipso apud Westm ' c. CHARLES by the Grace of God c. To the most Reverend Father in Christ W. by the same Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by the Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of Our Kingdom of England and of the English Church We have Ordained a certain Parliament of Ours to be holden at W. c. and there to have Conference and to treat with you the Prelates Great men and Peers of Our said Kingdom We straitly Charge and Command by the Faith and Love by which you are bound to Us that considering the Difficulties of the Businesses aforesaid and the imminent Dangers and setting aside all Excuses you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safe-guard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness our Self at Westm ' The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. is to the Temporal Barons But whereas the Spiritual Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons are to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a consultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons of the Exchequer the Kings Councel and the Masters of the Chancery by their Writs But over and besides this Power the Lords do exercise a decisive or Judicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Judge and a Counsellor in a Monarchy the ordinary Duty or Office of a Judge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Judge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Judges by their Commission or Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in execution But Counsellors have no Power to command their Consultations to be executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weigh the Advice of his Councel and at liberty to resolve according to the Judgment of the wiser part of his Councel and not always of the greater In a word regularly a Councellor hath no Power but in the Kings Presence and a Judge no Power but out of his Presence These two Powers thus distinguished have yet such Correspondency and there is so near Affinity between the Acts of judging and counselling that although the ordinary Power of the Judg is to give Judgment yet by their Oath they are bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and on the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Councellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers whe find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the King's Presence that He may have Conference and treat with them the very Words of the Writ are Nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the King's Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part in the Consultation this were to make
should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Jurisdictions Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Jurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not only be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the People may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Jurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Justice But he doth not name so much as one Country or Kingdom that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdom that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdoms or no where is such a moderated Government as our Observator means to be found A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern People as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdom 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 only 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 publick 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-Councellers and nominates the Bishops and whom he will have to be his Privy Council 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 Judge 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 Jurisdictions 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 near 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 Council 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 find among them that the whole Community in its underived Majesty doth ever convene to do Justice 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 Monarch 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
the King alone at the Rogation of the People as His Majesty King James of happy Memory affirms in his true Law of free Monarchy and as Hooker teacheth us That Laws do not take their constraining force from the Quality of such as devise them but from the Power that doth give them the Strength of Laws Le Roy le Veult the King will have it so is the Interpretive Phrase pronounced at the King 's passing of every Act of Parliament And it was the ancient Custom for a long time till the days of Henry the Fifth that the Kings when any Bill was brought unto them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted for a Law but the Custom of the later Kings hath been so gracious as to allow always of the entire Bill as it hath passed both Houses 16. The Parliament is the King's Court for so all the oldest Statutes call it the King in His Parliament But neither of the two Houses are that Supream Court nor yet both of them together they are only Members and a part of the Body whereof the King is the Head and Ruler The King 's Governing of this Body of the Parliament we may find most significantly proved both by the Statutes themselves as also by such Presidents as expresly shew us how the King sometimes by himself sometimes by his Council and other-times by his Judges hath over-ruled and directed the Judgments of the Houses of Parliament for the King we find that Magna Charta and the Charter of Forrests and many other Statutes about those times had only the Form of the Kings Letters-Patents or Grants under the Great Seal testifying those Great Liberties to be the sole Act and Bounty of the King The words of Magna Charta begin thus Henry by the Grace of God c. To all our Arch-Bishops c. and Our Faithful Subjects Greeting Know ye that We of Our meer free-Will have granted to all Free-men these Liberties In the same style goeth the Charter of Forrests and other Statutes Statutum Hiberniae made at Westminster 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard Son of Maurice Justice of Ireland The Statute de anno Bissextili begins thus The King to His Justices of the Bench Greeting c. Explanationes Statuti Glocestriae made by the King and his Justices only were received always as Statutes and are still Printed amongst them The Statute made for Correction of the 12 th Chapter of the Statute of Glocester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the King's Hand at Westminster requiring that they should do and execute all and every thing contained in it although the same do not accord with the Statute of Glocester in all things The Statute of Rutland is the King's Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Judges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestick Terms of The King Commands or The King Wills or Our Lord the King hath Established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meer Proclamations as the Provisions of Merton made by the King at an Assembly of the Prelates and Nobility for the Coronation of the King and his Queen Eleanor which begins Provisum est in Curia Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimae Praesentationis which was continued and allowed for Law until Tit. West 2. an 13. Ed. 1. cap. 5. which provides the contrary in express words This Provision begins Provisum fuit coram Dom. Rege Archiepiscopis Episcopis Baronibus quod c. It seems Origanally the difference was not great between a Proclamation and a Statute this latter the King made by Common Council of the Kingdom In the former he had but the advice only of his great Council of the Peers or of his Privy Council only For that the King had a great Council besides his Parliament appears by a Record of 5. Hen. 4. about an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the Advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the KING will assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. cap. 8. in these words Forasmuch as the King by the Advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great Prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Regal Power given him by God may do many things in such Cases should not be driven to extend the Liberties and Supremity of his Regal Power and Dignity by willfulness of froward Subjcts It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a second Parliament and the Statute made Proclamations of as great Validity as if they had been made in Parliament This Law continued until the Government of the State came to be under a Protector during the Minority of Edward the Sixth and in his first Year it was Repealed I find also that a Parliament in the 11th Year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damned and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Comission Court affirms that the Statute of 2 H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the
to judge them if the dernier resort be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did 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 judg under them do not hereby 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 Judges that they give Judgment 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 duly executed and when not as also to compel 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 all Laws within the Cabinet of His Breast in Scrinio pectoris saith Campton'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 Justices 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 Justices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Justices as before the King himself arraigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Exchequer and there set down Order for the Appearance of Sheriffs and bringing in their Accounts there was five Marks set on every Sheriffs Head for a Fine because they had not distrained every Person that might dispend fifteen pounds Lands by the Year to receive the Order of Knighthood according as the same Sheriffs were commanded In Michaelmas Term 1462. Edw. 4. sate three days together in open Court in the Kings Bench. For this Point there needs no further Proofs because Mr. Pryn doth confess that Kings themselves have sate in Person in the Kings Bench and other Courts and there given Judgment p. 32. Treachery and Disloyalty c. Notwithstanding all that hath been said for the Legislative and Judicial Power of Kings Mr. Pryn is so far from yielding the King a Power to make Laws that he will not grant the King a Power to hinder a Law from being made that is he allows Him not a Negative Voice in most Cases which is due to every other even to the meanest Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice his main and in Truth his only Argument insisted on is a Coronation-Oath which is said anciently some of our Kings of England have taken wherein they grant to defend and protect the just Laws and Customs which the Vulgar hath or shall chuse Justas Leges Consuetudines quas Vulgus elegerit hence Mr. Pryn concludes that the King cannot deny any Law which the Lords and Commons shall make Choice 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 take it for ought appears yet we may admit that 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 Antecedent Consuetudines that is the Customs which the Vulgar hath or shall chuse Do but observe the Nature of Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out of mind creates a Custom and the commoner an Usage is the stronger and the better is the Custom no where can so common an Usage be found as among the Vulgar who are still the far greatest part of every Multitude if a Custom be common 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 Lords 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 I 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 cases of greatest Moment even in case of High
the Election of Saul since Saul was chosen by God himself and governed according to God's Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Joshua but will have it descend to Eleazar the High-Priest Aaron's Son His Proof is God expresly saith concerning Joshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Vrim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ The Work of the High-Priest was only Ministerial not Magisterial he had no power to Command in War or to Judge in Peace only when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Breast-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Breast-plate before his face then the Priest answered him Go up or go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIVS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition J. M. abominates as being the Definition of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us 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 Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Judges 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 the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Justice and by them where not the King but the usual Judges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtail the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay J.M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17.14 When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placeret forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in
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 Council and by Arms saved the Commonwealth which the Great Council had almost damned by their Votes page 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 p. 61. A miserable Liberty which is only 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 page 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 gives themselves a King If the Father kill his Son he loseth his life why should not the King also page 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 pag. 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 only 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 only 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 only 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 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 God's 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 always 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 only 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 King 11.17 Jehojada 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 Jehojada 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 round 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 Council and all other Magistrates or Nobles or the whole People compared
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 by a Humane Law as Grotius teacheth then the Moral Law depends upon the Will of man There could be no Law against Adultery or Theft if Women and all things were common Mr. Selden saith That the Law of Nature or of God nec vetuit nec jubebat sed permisit utrumque tam nempe rerum communionem quà m privatum Dominium And yet for Propriety which he terms primaeva rerum Dominia he teacheth That Adam received it from God à Numine acceperat And for Community he saith We meet with evident footsteps of the Community of things in that donation of God by which Noah and his three Sons are made Domini pro indiviso rerum omnium Thus he makes the private Dominion of Adam as well as the common Dominion of Noah and his Sons to be both by the Will of God Nor doth he shew how Noah or his Sons or their Posterity had any Authority to alter the Law of Community which was given them by God In distributing Territories Mr. Selden saith the consent as it were of Mankind passing their promise which should also bind their Posterity did intervene so that men departed from their common Right of Communion of those things which were so distributed to particular Lords or Masters This Distribution by Consent of Mankind we must take upon Credit for there is not the least proof offered for it out of Antiquity How the Consent of Mankind could bind Posterity when all things were common is a Point not so evident where Children take nothing by Gift or by Descent from their Parents but have an equal and common Interest with them there is no reason in such cases that the Acts of the Fathers should bind the Sons I find no cause why Mr. Selden should call Community a pristine Right since he makes it but to begin in Noah and to end in Noah's Children or Grand children at the most for he confesseth the Earth à Noachidis seculis aliquot post diluvium esse divisam That ancient Tradition which by Mr. Selden's acknowledgment hath obtained Reputation every where seems most reasonable in that he tells us That Noah himself as Lord of all was Author of the Distribution of the World and of private Dominion and that by the appointment of an Oracle from God he did confirm this Distribution by his last Will and Testament which at his Death he left in the hands of his eldest Son Sem and also warned all his Sons that none of them should invade any of their Brothers Dominions or injure one another because from thence Discord and Civil War would necessarily follow Many Conclusions in Grotius his Book de Jure Belli Pacis are built upon the foundation of these two Principles 1. The first is That Communis rerum usus naturalis fuit 2. The second is That Dominium quale nunc in usu est voluntas humana introduxit Upon these two Propositions of natural Community and voluntary Propriety depend divers dangerous and seditious Conclusions which are dispersed in several places In the fourth Chapter of the first Book the Title of which Chapter is Of the War of Subjects against Superiours Grotius handleth the Question Whether the Law of not resisting Superiours do bind us in most grievous and most certain danger And his Determination is That this Law of not resisting Superiours seems to depend upon the Will of those men who at first joyned themselves in a Civil Society from whom the Right of Government doth come to them that govern if those had been at first asked if their Will were to impose this burthen upon all that they should chuse rather to dye than in any case by Arms to repel the Force of Superiours I know not whether they would answer That it was their Will unless perhaps with this addition if Resistance cannot be made but with the great disturbance of the Common-wealth and destruction of many Innocents Here we have his Resolution that in great and certain danger men may resist their Governours if it may be without disturbance of the Common-wealth if you would know who should be Judge of the greatness and certainty of the Danger or how we may know it Grotius hath not one word of it so that for ought appears to the contrary his mind may be that every private man may be Judge of the Danger for other Judge he appoints none it had been a foul Fault in so desperate a piece of Service as the resisting of Superiours to have concealed the lawful Means by which we may judge of the Greatness or Certainty of publick Danger before we lift up our hands against Authority considering how prone most of us are to censure and mistake those things for great and certain Dangers which in truth many times are no dangers at all or at the most but very small ones and so flatter our selves that by resisting our Superiours we may do our Country laudable Service without Disturbance of the Common-wealth since the Effects of Sedition cannot be certainly judged of but by the Events only Grotius proceeds to answer an Objection against this Doctrine of resisting Superiours If saith he any man shall say that this rigid Doctrine of dying rather than resisting any Injuries of Superiours is no humane but a Divine Law It is to be noted that men at first not by any Precept of God but of their own Accord led by Experience of the Infirmities of separated Families against Violence did meet together in Civil Society from whence Civil Power took beginning which therefore St. Peter calls an humane Ordinance although elsewhere it be called a divine Ordinance because God approveth the wholesom Institutions of men God in approving a humane Law is to be thought to approve it as humane and in a humane manner And again in another place he goeth further and teacheth us That if the Question happen to be concerning the primitive Will of the People it will not be amiss for the People that now are and which are accounted the same with them that were long ago to express their meaning in this matter which is to be followed unless it certainly appear that the People long ago willed otherwise lib. 2. cap. 2. For fuller Explication of his Judgment about resisting Superiors he concludes thus The greater the thing is which is to be preserved the greater is the Equity which reacheth forth an Exception against the words of the Law yet I dare not saith Grotius without Difference condemn either simple men or a lesser part of the People who in the last Refuge of Necessity do so use this Equity as that in the mean time they do not forsake the Respect of the
also to study always to please their Parents But since this Duty is not by force of any moral faculty as those former are but only of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing is void being made by any Owner whatsoever against the rules 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 doth 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 Duty 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 always 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 only 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 priviledged 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 endure 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 ways Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Vsufructuary 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 Kingdom 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 only make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth only 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 Kingdom 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 only 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 hath a Title it is an unjust War that takes the Kingdom from him If he hath 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 hath 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 Vbi Judicia deficiunt incipit Bellum Lib. 2. cap. 1. And thus upon the matter I cannot find in Grotius's Book De Jure 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 quâ se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2.
lawful to proceed against him by way of Fact or Force For question is not here what men are able to do by Strength and Force but what they ought of Right to do as not whether the Subject have Power and Strength but whether they have lawful Power to Condemn their Soveraign Prince The Subject is not only guilty of Treason in the highest Degree who hath Slain his Soveraign Prince but even he also which hath Attempted the same who hath given Counsel or Consent thereto yea if he have Concealed the same or but so much as Thought it Which Fact the Laws have in such Detestation as that when a man guilty of any Offence or Crime dyeth before he be condemned thereof he is deemed to have died in whole and perfect Estate except he have conspired against the Life and Dignity of his Soveraign Prince This only thing they have thought to be such as that for which he may worthily seem to have been now already judged and Condemned yea even before he was thereof Accused And albeit the Laws inflict no Punishment upon the Evil Thoughts of men but on those only which by Word or Deed break out into some Enormity yet if any man shall so much as conceit a Thought for the Violating of the Person of his Soveraign Prince although he have Attempted nothing they have yet Judged this same Thought worthy of Death notwithstanding what Repentance soever he have had thereof Lest any men should think Kings or Princes themselves to have been the Authors of these Laws so the more straitly to provide for their own Safety and Honour let us see the Laws and Examples of Holy Scripture Nabuchodonosor King of Assyria with Fire and Sword destroyed all the Country of Palestina besieged Jerusalem took it rob'd and razed it down to the ground burnt the Temple and defiled the Sanctuary of God slew the King with the greatest part of the people carrying away the rest into Captivity into Babylon caused the Image of himself made in Gold to be set up in Publick place commanding all men to Adore and Worship the same upon pain of being Burnt alive and caused them that refused so to do to be cast into a burning Furnace And yet for all that the holy Prophets Baruch 1. Jeremy 29. directing their Letters unto their Brethren the Jews then in Captivity in Babylon will them to pray unto God for the good and happy Life of Nabuchodonosor and his Children and that they might so long Rule and Reign over them as the Heavens should endure Yea even God himself doubted not to call Nabuchodonosor his Servant saying That he would make him the most Mighty Prince of the world and yet was there never a more detestable Tyrant than he who not contented to be Himself Worshipped but caused his Image also to be Adored and that upon pain of being burnt quick We have another rare Example of Saul who possessed with an evil Spirit caused the Priests of the Lord to be without just Cause slain for that one of them had received David flying from him and did what in his power was to kill or cause to be kill'd the same David a most innocent Prince by whom he had got so many Victories at which time he fell twice himself into David's Hands who blamed of his Souldiers for that he would not suffer his so mortal Enemy then in his power to be Slain being in assured Hope to have enjoyed the Kingdom after his Death he detested their Counsel saying God forbid that I should suffer the Person of a King the Lords Anointed to be violated Yea he himself defended the same King persecuting of him whenas he commanded the Souldiers of his Guard overcome by Wine and Sleep to be wakened And at such time as Saul was slain and that a Souldier thinking to do David a pleasure presented him with Saul's Head David caused the same Souldier to be Slain which had brought him the Head saying Go thou Wicked How durst thou lay thy impure Hands upon the Lords Anointed Thou shalt surely Die therefore And afterwards without all Dissimulation mourned Himself for the dead King All which is worth good consideration for David was by Saul prosecuted to Death and yet wanted not Power to have revenged Himself being become Stronger than the King besides he was the Chosen of God and Anointed by Samuel to be King and had Married the King's Daughter And yet for all that he abhorred to take upon him the Title of a King and much more to Attempt any thing against the Life or Honour of Saul or to Rebel against him but chose rather to Banish himself out of the Realm than in any sort to seek the Kings Destruction We doubt not but David a King and a Prophet led by the Spirit of God had always before his Eyes the Law of God Exod. 22.28 Thou shalt not speak Evil of thy Prince nor detract the Magistrate neither is there any thing more common in Holy Scripture than the forbidding not only to Kill or Attempt the Life or Honour of a Prince but even for the very Magistrates although saith the Scripture They be Wicked and Naught The Protestant Princes of Germany before they entred into Arms against Charles the Emperour demanded of Martin Luther if it were Lawful for them so to do or not who frankly told them That it was not Lawful whatsoever Tyranny or Impiety were pretended yet was he not therein by them Believed so thereof ensued a Deadly and most Lamentable War the End whereof was most Miserable drawing with it the Ruine of many great and noble Houses of Germany with exceeding slaughter of the Subjects The Prince whom you may justly call the Father of the Country ought to be to every man Dearer and more Reverend than any Father as one Ordained and Sent unto us by God The Subject is never to be suffered to Attempt any thing against the Prince how Naughty and Cruel soever he be lawful it is not to obey him in things contrary to the Laws of God to Flie and Hide our selves from him but yet to suffer Stripes yea and Death also rather than to Attempt any thing against his Life and Honour O how many Tyrants should there be if it should be lawful for Subjects to kill Tyrants How many good and innocent Princes should as Tyrants perish by the Conspiracy of their Subjects against them He that should of his Subjects but exact Subsidies should be then as the Vulgar People esteem him a Tyrant He that should Rule and Command contrary to the good Liking of the People should be a Tyrant He that should keep strong Guards and Garrisons for the safety of his Person should be a Tyrant He that should put to death Traitors and Conspirators against his State should be also counted a Tyrant How should good Princes be assured of their Lives if under colour of Tyranny they might be Slain by their Subjects by whom they ought to be
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a House Nor doth Aristotle confine a Family to One House but esteems it to be made of those that daily converse together whereas before him Charondas called a Family Homosypioi those that feed together out of one common Pannier And Epimenides the Cretian terms a Family Homocapnoi those that sit by a Common Fire or Smoak But let Suarez understand what he please by Adam's Family if he will but confess as he needs must that Adam and the Patriarchs had Absolute power of Life and Death of Peace and War and the like within their Houses or Families he must give us leave at least to call them Kings of their Houses or Families and if they be so by the Law of Nature what Liberty will be left to their Children to dispose of Aristotle gives the Lie to Plato and those that say Political and Oeconomical Societies are all one and do not differ Specie but only Multitudine Paucitate as if there were no difference betwixt a Great House and a Little City All the Argument I find he brings against them is this The Community of Man and Wife differs from the Community of Master and Servant because they have several Ends. The Intention of Nature by Conjunction of Male and Female is Generation but the Scope of Master and Servant is Preservation so that a Wife and a Servant are by Nature distinguished because Nature does not work like the Cutlers of Delphos for she makes but one thing for one Use If we allow this Argument to be sound nothing doth follow but only this That Conjugal and Despotical Communities do differ But it is no consequence That therefore Oeconomical and Political Societies do the like for though it prove a Family to consist of two distinct Communities yet it follows not that a Family and a Commonwealth are distinct because as well in the Commonweal as in the Families both these Communities are found And as this Argument comes not home to our Point so it is not able to prove that Title which it shews for for if it should be granted which yet is false that Generation and Preservation differ about the Individuum yet they agree in the General and serve both for the Conservation of Mankind Even as several Servants differ in the particular Ends or Offices as one to Brew and another to Bake yet they agree in the general Preservation of the Family Besides Aristotle confesses that amongst the Barbarians as he calls all them that are not Grecians a Wife and a Servant are the same because by Nature no Barbarian is fit to Govern It is fit the Grecians should rule over the Barbarians for by Nature a Servant and a Barbarian is all one their Family consists only of an Ox for a Man-Servant and a Wife for a Maid so they are fit only to rule their Wives and their Beasts Lastly Aristotle if it had pleased him might have remembred That Nature doth not always make one Thing but for one Use he knows the Tongue serves both to Speak and to Taste 4. But to leave Aristotle and return to Suarez he saith that Adam had Fatherly Power over his Sons whilst they were not made Free Here I could wish that the Jesuite had taught us how and when Sons become Free I know no means by the Law of Nature It is the Favour I think of the Parents only who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care are then content to remit some part of their Fatherly authority therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of suferiour Parents but many Nations have no such Custome but on the contrary have strict Laws for the Obedience of Children the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause But it was so decreed lest the Father should in his Anger suddenly or secretly kill his Son Also by the Laws of the Persians and of the People of the Upper Asia and of the Gaules and by the Laws of the West-Indies the Parents have power of Life and Death over their Children The Romans even in their most Popular Estate had this Law in force and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables to the enabling of Parents to sell their Children two or three times over By the help of the Fatherly Power Rome long flourished and oftentimes was freed from great Dangers The Fathers have drawn out of the very Assemblies their own Sons when being Tribunes they have published Laws tending to Sedition Memorable is the Example of Cassius who threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the behoof of the People and afterwards by his own private Judgment put him to Death by throwing him down from the Tarpeian Rock the Magistrates and People standing thereat amazed and not daring to resist his Fatherly Authority although they would with all their Hearts have had that Law for the Division of Land by which it appears it was lawful for the Father to dispose of the Life of his Child contrary to the Will of the Magistrates or People The Romans also had a Law that what the Children got was not their own but their Fathers although Solon made a Law which acquitted the Son from Nourishing of his Father if his Father had taught him no Trade whereby to get his Living Suarez proceeds and tells us That in Process of Time Adam had compleat Oeconomical Power I know not what this compleat Oeconomical Power is nor how or what it doth really and essentially differ from Political If Adam did or might exercise the same Jurisdiction which a King doth now in a Commonwealth then the Kinds of Power are not distinct and though they may receive an Accidental Difference by the Amplitude or Extent of the Bounds of the One beyond the Other yet since the like Difference is also found in Political Estates It follows that Oeconomical and Political Power differ no otherwise than a Little Commonweal differs from a Great One. Next saith Suarez Community did not begin at the Creation of Adam It is true because he had no body to Communicate with yet Community did presently follow his Creation and that by his Will alone for it was in his power only who was Lord of All to appoint what his Sons should have in Proper and what in Common so that Propriety and Community of Goods did follow Originally from him and it is the Duty of a Father to provide as well for the Common Good of his Children as the Particular Lastly Suarez Concludes That by the Law of Nature alone it is not due unto any Progenitor to be also King
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiting with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Judge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant No Man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but God's Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apology for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and all that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his Words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger let none presume to search into his Deeds much less to oppose them When the Jews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the People nor advised them to stay their Payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their
much as the Natural Law of a Father which binds them to ratifie the Acts of their ForeFathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-Bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these Words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall Judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience joyn'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for Truth that Kings do swear to observe all the Laws of their Kingdom yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no further bound than the Equity and Justice of the Contract ties him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error or Force or Fear induced him thereunto Or if it be hurtful or grievous in the performance Since the Laws in many Cases give the King a Prerogative above common Persons I see no Reason why he should be denied the Priviledg which the meanest of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Whether it be a Sin for a Subject to disobey the King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Humane Laws but even in Divine a thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of the Sabbath is a Divine Law yet if a Master command his Servant not to go to Church upon a Sabbath-Day the best Divines teach us That the Servant must obey this Command though it may be Sinful and Unlawfull in the Master because the Servant hath no Authority or Liberty to examine and judge whether his Master sin or no in so commanding For there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14.5 yet it is not fit to tie the Master to acquaint his Servant with his secret Counsels or present Necessity And in such Cases the Servant 's not going to Church becomes the Sin of the Master and not of the Servant The like may be said of the King 's commanding a Man to serve him in the Wars he may not examine whether the War be Just or Unjust but must Obey since he hath no Commission to Judge of the Titles of Kingdoms or Causes of War nor hath any Subject Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some are afraid of the Name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it The Court of Chancery it self is but a Branch of the King's Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Jus is Summa Injuria General Pardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or make them In all Aristocraties the Nobles are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power he is but an Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all things according to his Own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he
might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and leave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Vlpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws 9. If the Nature of Laws be advisedly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior Power Laws are divided as Bellarmine divides the Word of God into written and unwritten not for that it is not written at all but because it was not written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered that for every Custom there was a time when it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands of Kings at first unwritten Nor must we think the Common Customs which are the Principles of the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivered by Moses there be only certain Principal Laws which did not determine but only direct the High-priest or Magistrate whose Judgment in special Cases did determine what the General Law intended It is so with the Common Law for when there is no perfect Rule Judges do resort to those Principles or Common-Law Axiomes whereupon former Judgments in Cases somewhat like have been delivered by former Judges 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 there have been Presidents to direct they upon better Reason only have changed the Law both in Causes Criminal and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their Reasons thence it is that some Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellour 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 witness 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 speaks 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 supplied as if the Law-maker himself were present to Ordain it The Governour whether he be one Man or more ought to be Lord over 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 rectify whatsoever upon Tryal thy find to be better than the Written Laws Besids 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 King's 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 virtue 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 Judgements 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