or Free-hold of their Liberties Thirdly I must not detract from the Worth of all those Learned Men who are of a contrary Opinion in the Point of Natural Liberty The profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable neither Aristotle in Philosophy nor Hooker in Divinity They are but men yet I reverence their Judgments in most Points and confess my self beholding to their Errors too in this something that I found amiss in their Opinions guided me in the discovery of that Truth which I perswade my self they missed A Dwarf sometimes may see that which a Giant looks over for whilest one Truth is curiously searched after another must necessarily be neglected Late Writers have taken up too much upon Trust from the subtile School-Men who to be sure to thrust down the King below the Pope thought it the safest course to advance the People above the King that so the Papal Power might take place of the Regal Thus many an Ignorant Subject hath been fooled into this Faith that a man may become a Martyr for his Countrey by being a Traytor to his Prince whereas the New-coyned distinction of Subjects into Royallists and Patriots is most unnatural since the relation between King and People is so great that their well-being is so Reciprocal 2 To make evident the Grounds of this Question about the Natural Liberty of Mankind I will lay down some passages of Cardinal Bellarmine that may best unfold the State of this Controversie Secular or Civil Power saith he is instituted by Men It is in the People unless they bestow it on a Prince This Power is immediately in the whole Multitude as in the Subject of it for this Power is in the Divine Law but the Divine Law hath given this Power to no particular Man If the Positive Law be taken away there is left no Reason why amongst a Multitude who are Equal one rather than another should bear Rule over the rest Power is given by the Multitude to one man or to more by the same Law of Nature for the Commonwealth cannot exercise this Power therefore it is bound to bestow it upon some One Man or some Few It depends upon the Consent of the Multitude to ordain over themselves a King or Consul or other Magistrates and if there be a lawful Cause the Multitude may change the Kingdom into an Aristocracy or Democracy Thus far Bellarmine in which passages are comprised the strength of all that ever I have read or heard produced for the Natural Liberty of the Subject Before I examine or refute these Doctrines I must a little make some Observations upon his Words First He saith that by the law of God Power is immediately in the People hereby he makes God to be the immediate Author of a Democratical Estate for a Democrasy is nothing else but the Power of the Multitude If this be true not only Aristocracies but all Monarchies are altogether unlawful as being ordained as he thinks by Men whenas God himself hath chosen a Democracy Secondly He holds that although a Democracy be the Ordinance of God yet the people have no power to use the Power which God hath given them but only power to give away their Power whereby it followeth that there can be no Democratical Government because he saith the people must give their Power to One Man or to some Few which maketh either a Regal or Aristocratical Estate which the Multitude is tyed to do even by the same Law of Nature which Originally gave them the Power And why then doth he say the Multitude may change the Kingdom into a Democracy Thirdly He concludes that if there be a lawful Cause the Multitude may change the Kingdom Here I would fain know who shall judg of this lawful Cause If the Multitude for I see no Body else can then this is a pestilent and dangerous Conclusion 3 I come now to examine that Argument which is used by Bellarmine and is the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People It is thus framed That God hath given or ordained Power is evident by Scripture But God hath given it to no particular Person because by nature all Men are Equal therefore he hath given Power to the People or Multitude To Answer this Reason drawn from the Equality of Mankind by Nature I will first use the help of Bellarmine himself whose very words are these If many men had been together created out of the Earth they all ought to have been Princes over their Posterity In these words we have an Evident Confession that Creation made man Prince of his Posterity And indeed not only Adam but the succeding Patriarchs had by Right of Father-hood Royal Authority over their Children Nor dares Bellarmine deny this also That the Patriarchs saith he were endowed with Kingly Power their Deeds do testify for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with subordination to the First Parent who is Lord-Paramout over his Childrens Children to all Generations as being the Grand-Father of his People 4 I see not then how the Children of Adam or of any man else can be free from subjection to their Parents And this subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself It follows that Civil Power not only in general is by Divine Institution but even the Assignment of it Specifically to the eldest Parents which quite takes away that New and Common distinction which refers only Power Universal and Absolute to God but Power Respective in regard of the Special Form of Government to the Choice of the people This Lordship which Adam by Command had over the whole World and by Right descending from him the Patriarchs did enjoy was as large and ample as the Absolutest Dominion of any Monarch which hath been since the Creation For Dominion of Life and Death we find that Judah the Father pronounced Sentence of Death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abraham commanded an Army of 318 Souldiers of his own Family And Esau met his Brother Jacob with 400 Men at Arms. For matter of Peace Abraham made a League with Abimilech and ratify'd the Articles with an Oath These Acts of Judging in Capital Crimes of making War and concluding Peace are the chiefest Marks of Sovereignty that are found in any Monarch 5 Not only until the Flood but after it this Patriarchal Power did continue as the very Name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World over-spread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the Earth
Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where the King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicit Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lye at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Justice and Discretion in Mercy and Truth in all His Judgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Judgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the Assenting unto or granting any new Laws but of holding protecting and strengthening with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom it would not make him a King nor give him Power to make one Law a Negative Voice is but a privative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogism of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The Reason is plain why the Kings Negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Justice of England to the Opinion of him that calls himself an utter Barrister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Justices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of our Lord the King is to be expected seeing it is His part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Judge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Vice-roy of God and that he hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of his People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Jurisdictions c. We Will that Our 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 or cause to be yielded such Judgments as do appertain without other Process wheresoever we know the right Truth as Judges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the Authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lambard puts us in mind of a Saxon Law of King Edgar's Nemo in lite Regem appellato c. Let no man in Suit appeal unto the King unless he cannot get Right at home but if that Right be too Heavy for him then let him go to the King to have it eased By which it may evidently appear that even so many years ago there might be Appellation made to the Kings Person whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of this Realm out of which Law Master Lambard gathers that the King himself had a High Court of Justice wherein it seemeth He sate in Person for the words be Let him not seek to the King and the same Court of the King did judge not only according to meer Right and Law but also after Equity and good Conscience For the Close I shall end with the Suffrage of our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Justitia solius Regis est c. All Justice of the Kingdom is only the King 's and He alone if He were able should administer it but that being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remiss and so oft Wrong instead of Right will be done if we stand to strict Law also Causes hard and difficult daily arise which are comprehended in no Law-books in those there is a necessity of running back to the King the Fountain of Justice and the Vicegerent of God himself who in the Commonwealth of the Jews took such Causes to His own cognisance and left
men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the Citizens of Rome who had been Conquerours of all Nations round about them could not endure of Warriers to become Quarriers and Day-labourers Whereas it is said that Tarquin was expelled for the Rape committed by his Son on Lucrece it is unjust to condemn the Father for the Crime of his Son it had been fit to have petitioned the Father for the Punishment of the Offender The Fact of young Tarquin cannot be excused yet without wrong to the Reputation of so chaste a Lady as Lucrece is reputed to be it may be said she had a greater Desire to be thought chaste than to be chaste she might have died untouched and unspotted in her Body if she had not been afraid to be slandered for Inchastity both Dionysius Halicarnasseus and Livie who both are her Friends so tell the Tale of her as if she had chosen rather to be a Whore than to be thought a Whore To say Truth we find no other Cause of the Expulsion of Tarquin than the Wantonness and Licentiousness of the People of Rome This is further to be considered in the Roman Government that all the time between their Kings and their Emperours there lasted a continued strife between the Nobility and Commons wherein by Degrees the Commons prevailed at last so to weaken the Authority of the Consuls and Senate that even the last sparks of Monarchy were in a manner extinguished and then instantly began the Civil War which lasted till the Regal Power was quickly brought home and setled in Monarchy So long as the Power of the Senate stood good for the Election of Consuls the Regal Power was preserved in them for the Senate had their first Institution from Monarchy It is worth the noting that in all those places that have seemed to be most popular that weak Degree of Government that hath been exercised among them hath been founded upon and been beholden unto Monarchical Principles both for the Power of assembling and manner of consulting for the entire and gross Body of any People is such an unweildy and diffused thing as is not capable of uniting or congregating or deliberating in an entire Lump but in broken Parts which at first were regulated by Monarchy Furthermore it is observable that Rome in her chief Popularity was oft beholden for her Preservation to the Monarchical Power of the Father over the Children by means of this Fatherly Power saith Bodin the Romans flourished in all Honour and Vertue and oftentimes was their Common-weal thereby delivered from most imminent Destruction when the Fathers drew out of the Consistory their Sons being Tribunes publishing Laws tending to Sedition Amongst others Cassius threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the Behoof of the People and after by his own private Judgment put him to Death the Magistrates Serjeants and People standing thereat astonied and not daring to withstand his Fatherly Authority although they would with all their Power have had that Law for Division of Lands which is sufficient Proof this Power of the Father not only to have been sacred and inviolable but also to have been lawful for him either by Right or Wrong to dispose of the Life and Death of his Children even contrary to the Will of the Magistrates and People It is generally believed that the Government of Rome after the Expulsion of Kings was popular Bodin endeavours to prove it but I am not satisfied with his Arguments and though it will be thought a Paradox yet I must maintain it was never truly popular First it is difficult to agree what a popular Government is Aristotle saith it is where Many or a Multitude do rule he doth not say where the People or the major part of the People or the Representors of the People govern Bodin affirms if all the People be interessed in the Government it is a Popular Estate Lib. 2. c. 1. but after in the same Chapter he resolves that it is a Popular Estate when all the People or the greater part thereof hath the Sovereignty and he puts the Case that if there be threescore thousand Citizens and forty thousand of them have the Sovereignty and twenty thousand be excluded it shall be called a popular Estate But I must tell him though fifty nine thousand nine hundred ninety nine of them govern yet it is no popular Estate for if but one man be excluded the same reason that excludes that one man may exclude many hundreds and many thousands yea and the major part it self if it be admitted that the People are or ever were free by Nature and not to be governed but by their own Consent it is most unjust to exclude any one man from his Right in Government and to suppose the People so unnatural as at the first to have all consented to give away their Right to a major part as if they had Liberty given them only to give away and not to use it themselves is not only improbable but impossible for the whole People is a thing so uncertain and changeable that it alters every moment so that it is necessary to ask of every Infant so soon as it is born its Consent to Government if you will ever have the Consent of the whole People Moreover if the Arbitrary Tryal by a Jury of Twelve men be a thing of that admirable Perfection and Justice as is commonly believed wherein the Negative Voice of every single Person is preserved so that the dissent of any of the Twelve frustrates the whole Judgment How much more ought the natural freedom of each man be preserved by allowing him his Negative Voice which is but a continuing him in that Estate wherein it is confessed Nature at first placed him Justice requires that no one Law should bind all except all consent to it there is nothing more violent and contrary to Nature than to allow a major part or any other greater part less than the whole to bind all the People The next difficulty to discovering what a Popular Estate is is to find out where the Supreme Power in the Roman Government rested it is Bodin's Opinion that in the Roman State the Government was in the Magistrates the Authority and Council in the Senate but the Sovereign Power and Majesty in the People Lib. 2. c. 1. So in his first Book his Doctrine is that the ancient Romans said Imperium in Magistratibus Authoritatem in Senatu Potestatem in plebe Majestatem in Populo jure esse dicebant These four words Command Authority Power and Majesty signifie ordinarily one and the same thing to wit the Sovereignty or supreme Power I cannot find that Bodin knows how to
his jus naturale III. I cannot understand how this Right of Nature can be conceived without imagining a Company of men at the very first to have been all Created together without any Dependency one of another or as Mushroms fungorum more they all on a sudden were sprung out of the Earth without any Obligation one to another as Mr. Hobs's words are in his Book De Cive cap. 8. sect 3. the Scripture teacheth us otherwise that all men came by Succession and Generation from one man We must not deny the Truth of the History of the Creation IV. It is not to be thought that God would create man in a Condition worse than any Beasts as if he made men to no other End by Nature but to destroy one another a Right for the Father to destroy or eat his Children and for Children to do the like by their Parents is worse than Canibals This horrid Condition of pure Nature when Mr. Hobs was charged with his Refuge was to Answer that no Son can be understood to be in this state of pure Nature which is all one with denying his own Principle for if men be not free-born it is not possible for him to assign and prove any other time for them to claim a Right of Nature to Liberty if not at their Birth V. But if it be allowed which is yet most false that a Company of men were at first without a common Power to keep them in Awe I do not see why such a Condition must be called a State of War of all men against all men Indeed if such a Multitude of men should be created as the Earth could not well nourish there might be Cause for men to destroy one another rather than perish for want of Food but God was no such Niggard in the Creation and there being Plenty of Sustenance and Room for all men there is no Cause or Use of War till men be hindered in the Preservation of Life so that there is no absolute Necessity of War in the State of pure Nature it is the Right of Nature for every man to live in Peace that so he may tend the Preservation of his Life which whilest he is in actual War he cannot do War of it self as it is War preserves no mans Life it only helps us to preserve and obtain the Means to live if every man tend the Right of preserving Life which may be done in Peace there is no Cause of War VI. But admit the State of Nature were the State of War let us see what Help Mr. Hobs hath for it It is a Principle of his that the Law of Nature is a Rule found out by Reason I do think it is given by God pag. 64. forbidding a man to do that which is destructive to his Life and to omit that by which he thinks it may be best preserved If the Right of Nature be a Liberty for a man to do any thing he thinks fit to preserve his Life then in the first Place Nature must teach him that Life is to be preserved and so consequently forbids to do that which may destroy or take away the means of Life or to omit that by which it may be preserved and thus the Right of Nature and the Law of Nature will be all one for I think Mr. Hobs will not say the Right of Nature is a Liberty for man to destroy his own Life The Law of Nature might better have been said to consist in a Command to preserve or not to omit the Means of preserving Life than in a Prohibition to destroy or to omit it VII Another Principle I meet with pag. 65. If other men will not lay down their Right as well as he then there is no Reason for any to devest himself of his Hence it follows that if all the Men in the World do not agree no Commonwealth can be established it is a thing impossible for all the men in the World every man with every man to Covenant to lay down their Right Nay it is not possible to be done in the smallest Kingdom though all men should spend their whole Lives in nothing else but in running up and down to Covenant VIII Right may be laid aside but not transferr'd for pag. 65. he that renounceth or passeth away his Right giveth not to any other man a Right which he had not before and reserves a Right in himself against all those with whom he doth not Covenant IX Pag. 87. The only way to erect a Common Power or a Commonwealth is for men to confer all their Power and Strength upon one man or one Assembly of men that may reduce all their Wills by Plurality of Voices to one Will which is to appoint one man or an Assembly of men to bear their Person to submit their Wills to his Will this is a real Vnity of them all in one Person made by Covenant of every man with every man as if every man should say to every man I authorize and give up my Right of Governing my self to this man or this Assembly of men on this Condition that thou give up thy Right to him and authorize all his Actions This done the Multitude so united in one Person is called a Commonwealth To authorize and give up his Right of Governing himself to confer all his Power and Strength and to submit his Will to another is to lay down his Right of resisting for if Right of Nature be a Liberty to use Power for Preservation of Life laying down of that Power must be a relinquishing of Power to preserve or defend Life otherwise a man relinquisheth nothing To reduce all the Wills of an Assembly by Plurality of Voices to one Will is not a proper Speech for it is not a Plurality but a Totality of Voices which makes an Assembly be of one Will otherwise it is but the one Will of a major part of the Assembly the Negative Voice of any one hinders the Being of the one Will of the Assembly there is nothing more destructive to the true Nature of a lawful Assembly than to allow a major part to prevail when the whole only hath Right For a man to give up his Right to one that never Covenants to protect is a great Folly since it is neither in Consideration of some Right reciprocally transferred to himself nor can he hope for any other Good by standing out of the way that the other may enjoy his own Original Right without hinderance from him by reason of so much Diminution of Impediments pag. 66. X. The Liberty saith Mr. Hobs whereof there is so frequent and honourable mention in the Histories and Philosophy of the Ancient Greeks and Romans and in the Writings Discourse of those that from them have received all their Learning in the Politicks is not the Liberty of particular men but the Liberty of the Commonwealth Whether a Commonwealth be Monarchical or Popular the Freedom is still the same
Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself only with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime Principle That all Monarchies except that of the Jews depend upon humane designment when the consent of a Society of men and a fundamental Contract of a Nation by original or radical Constitution confers Power he must know that Aristotle searching into the Original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the Right of Fathers and not from the Gift or Contract of People his words may thus be Englished At the first Cities were governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first Society made of many Houses is a Village which naturally seems to be a Colony of a House which some call Foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotle's judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotle's judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Vnto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his People are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Justice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Privileges Much less should a Prince be bound unto the Laws he maketh himself for a man may well receive a Law from another man but impossible it is in nature for to give a Law unto himself no more than it is to command a mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the People is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Commonwealths of which their opinion there is neither reason nor ground for if the King be subject unto the assemblies and Decrees of the people he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Commonwealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Commonweal Such states wherein the rights of Soveraignty are divided are not rightly to be called Commonweals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Commonweals which change their state the Sovereign right power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his Pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without Society saith the Observator men could not live without Laws men could not be sociable and without Authority
parties are any way bound to perform their part and the Devil without doubt notwithstanding all his craft hath far the worst part of the bargain The bargain runs thus in Mr. Perkins The Witch as a slave binds himself by Vow to believe in the Devil and to give him either Body or Soul or both under his hand-writing or some part of his Blood The Devil promiseth to be ready at his vassals command to appear in the likeness of any Creature to consult and to aid him for the procuring of Pleasure Honour Wealth or Preferment to go for him to carry him any whither and to do any command Whereby we see the Devil is not to have benefit of his bargain till the death of the Witch in the mean time he is to appear always at the Witches command to go for him to carry him any whither and to do any command which argues the Devil to be the Witches slave and not the Witch the Devils Though it be true which Delrio affirmeth That the Devil is at liberty to perform or break his compact for that no man can compel him to keep his promise yet on the other side it is as possible for the Witch to frustrate the Devils Contract if he or she have so much grace as to repent the which there may be good cause to do if the Devil be found not to perform his promise Besides a Witch may many times require that to be done by the Devil which God permits not the Devil to do thus against his will the Devil may lose his credit and give occasion of repentance though he endeavour to the utmost of his power to bring to pass whatsoever he hath promised and so fail of the benefit of his bargain though he have the Hand-writing or some part of the blood of the Witch for his security or the solemnity before Witnesses as Delrio imagineth I am certain they will not say that Witchcraft is like the sin against the Holy Ghost unpardonable for Mr. Perkins confesseth the contrary and Delrio denies it not for he allows the Sacrament of the Eucharist to be administred to a condemned VVitch with this limitation that there may be about four hours space between the Communion and the Execution in which time it may be probably thought that the Sacramental Species as they call it may be consumed 3. Delrio in his second Book and fourth Question gives this Rule which he saith is common to all Contracts with the Devil That first they must deny the Faith and Christianism and Obedience to God and reject the Patronage of the Virgin Mary and revile her To the same purpose Mr. Perkins affirms that Witches renounce God and their Baptism But if this be common to all Contracts with the Devil it will follow that none can be VVitches but such as have first been Christians nay and Roman Catholicks if Delrio say true for who else can renounce the Patronage of the Virgin Mary And what shall be said then of all those Idolatrous Nations of Lapland Finland and of divers parts of Africa and many other Heathenish Nations which our Travellers report to be full of VVitches And indeed what need or benefit can the Devil gain by contracting with those Idolaters who are surer his own than any Covenant can make them 4. VVhereas it is said That Witchcraft is an Art working Wonders it must be understood that the Art must be the VVitches Art and not the Devils otherwise it is no Witchcraft but Devils-craft It is confessed on all hands That the Witch doth not work the wonder but the Devil only It is a rare Art for a Witch by her Art to be able to do nothing her self but to command another to practise the Art In other Arts Mr. Perkins confesseth That the Arts Master is able by himself to practise his Art and to do things belonging thereunto without the help of another but in this it is otherwise the power of effecting strange works doth not flow from the skill of the Witch but is derived wholly from Satan To the same purpose he saith That the means of working wonders are Charms used as a Watch-word to the Devil to cause him to work wonders so that the Devil is the Worker of the wonder and the Witch but the Counsellour Perswader or Commander of it and only accessory before the Fact and the Devil only principal Now the difficulty will be how the accessory can be duly and lawfully convicted and attainted according as our Statute requires unless the Devil who is the Principal be first convicted or at least outlawed which cannot be because the Devil can never be lawfully summoned according to the Rules of our Common Law For further proof that the Devil is the Principal in all such wonders I shall shew it by the testimony of King James in a Case of Murder which is the most capital Crime our Laws look upon First he tells us That the Devil teaches Witches how to make Pictures of Wax and Clay that by the roasting thereof the persons that they bear the Name of may be continually melted or dried away by continual sickness not that any of these means which he teacheth them except poisons which are composed of things natural can of themselves help any thing to these turns they are imployed in Secondly King James affirms That Witches can bewitch and take the life of men or women by roasting of the Pictures which is very possible to their Master to perform for although that instrument of Wax have no vertue in the turn doing yet may he not very well by that same measure that his conjured Slave melts that Wax at the fire may he not I say at these same times subtilly as a Spirit so weaken and scatter the spirits of life of the Patient as may make him on the one part for faintness to sweat out the humours of his body and on the other part for the not concurring of these spirits which cause his digestion so debilitate his stomach that his humour radical continually sweating out on the one part and no new good Suck being put in the place thereof for lack of digestion on the other he at last shall vanish away even as his Picture will do at the Fire Here we see the Picture of Wax roasted by the Witch hath no virtue in the Murdering but the Devil only It is necessary in the first place that it be duly proved that the party murdered be murdered by the Devil for it is a shame to bely the Devil and it is not possible to be proved if it be subtilly done as a Spirit 5. Our Definers of Witchcraft dispute much whether the Devil can work a Miracle they resolve he can do a Wonder but not a Miracle Mirum but not Miraculum A Miracle saith Mr. Perkins is that which is above or against Nature simply a Wonder is that which proceeds not from the ordinary course of Nature Delrio
will have a Miracle to be praeter or supra naturae creatae vires both seem to agree in this That he had need be an admirable or profound Philosopher that can distinguish between a Wonder and a Miracle it would pose Aristotle himself to tell us every thing that can be done by the power of Nature and what things cannot for there be daily many things found out and daily more may be which our Forefathers never knew to be possible in Nature Those that were converted by the Miracles of our Saviour never stayed to inquire of their Philosophers what the power of Nature was it was sufficient to them when they saw things done the like whereof they had neither seen nor heard of to believe them to be Miracles 6. It is commonly believed and affirmed by Mr. Perkins That the cause which moves the Devil to bargain with a Witch is a desire to obtain thereby the Soul and Body of the Witch But I cannot see how this can agree with another Doctrine of his where he saith The Precepts of Witchcraft are not delivered indifferently to every man but to his own subjects the wicked and not to them all but to special and tryed ones whom he most betrusteth with his secrets as being the fittest to serve his turn both in respect of their willingness to learn and practise as also for their ability to become Instruments of the mischief he intendeth to others All this argues the end of the Devils rules of Witchcraft is not to gain Novices for new Subjects but to make use of old ones to serve his turn 7. The last clause of Mr. Perkins Definition is That Witchcraft doth work wonders so far as God shall permit I should here desire to have known whether Mr. Perkins had thought that God doth permit farther power to the Devil upon his contracting with the Witch than he had before the Contract for if the Devil had the same permission before the Contract then he doth no more mischief upon the Contract then he would have gladly done before seeing as Mr. Perkins saith The Devils malice towards all men is of so high a degree that he cannot endure they should enjoy the World or the benefits of this life if it were possible so much as one hour But yet afterwards I find Mr. Perkins is more favourable to the Devil where he writes That if the Devil were not stirred up and provoked by the Witch he would never do so much hurt as he doth Of the Discerning and Discovery of a Witch A Magistrate saith Mr. Perkins may not take upon him to examine whom and how he willeth of any Crime nor to proceed upon slight causes or to shew his Authority or upon sinister respects or to revenge his malice or to bring parties into danger and suspicion but he must proceed upon special presumptions He calls those presumptions which do at least probably and conjecturally note one to be a Witch and are certain signs whereby the Witch may be discovered I cannot but wonder that Mr. Perkins should say That presumptions do at least probably and conjecturally note and are certain signs to discover a Witch when he confesseth That though presumptions give occasion to examine yet they are no sufficient causes of conviction and though presumptions be never so strong yet they are not proofs sufficient for Conviction but only for Examination Therefore no credit is to be given to those presumptions he reckons up 1. For common same it falls out many times saith he that the innocent may be suspected and some of the better sort notoriously defamed 2. The testimony of a fellow Witch he confesseth doth not probably note one to be a Witch The like may be said of his third and fourth presumption if after cursing or quarrelling or threatning there follow present mischief And the fifth presumption is more frivolous which is if the party be the Son or Daughter or Servant or Friend near Neighbour or old Companion of a Witch The sixth presumption Mr. Perkins dares not or is loth to own but saith Some add if the party suspected have the Devils Mark and yet he resolves if such a Mark be descried whereof no evident reason in nature can be given the Magistrate may cause such to be examined or take the matter into his own hands that the truth may appear but he doth not teach how the truth may be made to appear The last presumption he names is if the party examined be unconstant or contrary to himself here he confesseth a good man may be fearful in a good cause sometimes by nature sometimes in regard of the presence of the Judge or the greatness of the Audience some may be suddenly taken and others want that liberty of speech which other men have Touching Examination Mr. Perkins names two kinds of proceedings either by simple Question or by Torture Torture when besides the enquiry by words the Magistrate useth the Rack or some other violent means to urge Confession this he saith may be lawfully used howbeit not in every case but only upon strong and great presumptions and when the party is obstinate Here it may be noted that it is not lawful for any person but the Judge only to allow Torture suspicious Neighbours may not of their own heads use either Threats Terrors or Tortures I know not any one of those presumptions before-cited to be sufficient to warrant a Magistrate to use Torture or whether when the party constantly denies the Fact it must be counted obstinacy In case of Treason sometimes when the main Fact hath been either confessed or by some infallible proofs manifested the Magistrate for a farther discovery of some circumstance of the Time the Place and the Persons or the like have made use of the Rack and yet that kind of torture had not been of ancient usage in this Kingdom for if my memory fail not I have read that the Rack hath been called the Duke of Exeters Daughter and was first used about Hen. 6. days From presumptions Mr. Perkins proceeds to proofs of a Witch and here he hath a neat distinction of proofs less sufficient or more sufficient by less sufficient he meaneth insufficient but gives them this mild and strange phrase of less sufficient that it may not displease such friends as I conceive allow those less sufficient proofs for sufficient though he reckons them for no better than Witchcraft Those unsufficient sufficient proofs are weaker and worse than his presumptions which he confesseth are no proofs at all yet we must reckon them up His first less sufficient proof is The antient trial by taking red hot Irons or putting the hand in hot scalding water this he saith hath been condemned for Diabolical and wicked as in truth it is for an innocent man may thereby be condemned and a rank Witch scape unpunished A second insufficient proof is Scratching of the suspected party and the present recovery thereupon A third is the
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