speake otherwise then you thinke There is no authoritie which the people hath in matters of state but it may bee either bound or streightned by three meanes The first is by cession or graunt for so the Romans by the law of royaltie yeelded all their authoritie in gouernment to the Prince Of this lawe Vlpian maketh mention and Bodin reporteth that it is yet extant in Rome grauen in stone So the people of Cyrene of Pergame and of Bithynia did submit themselues to the Empire of the Romanes So the Tartarians commit absolute power both ouer their liues and their liuings to euerie one of their Emperours so haue our people manie times coÌ„mitted to their king the authoritie of the parliament either generallie or els for some particular case For it is held as a rule that any man may relinquish the authoritie which he hath to his owne benefit fauour Neither is he againe at pleasure to be admitted to that which once hee did thinke fit to renounce And as a priuate man may altogether abaÌ„don his free estate and subiect himselfe to seruile condition so may a multitude passe away both their authoritie and their libertie by publike consent The second is by prescription and custome which is of strength in all parts of the world least matters should alwaies float in vncertaintie and controuersies remaine immortall And that this authoritie of the people may be excluded by prescription it is euident by this one reason which may be as one in a third place of Arithmeticke in standing for a hundred Euerie thing may be prescribed wherein prescription is not prohibited but there is no lawe which prohibiteth prescription in this case and therefore it followeth that it is permitted And generallie custome doth not only interpret law but correcteth it and supplieth where there is no lawe in somuch as the common lawe of England as well in publick as priuate controuersies is no other a fewe maximes excepted but the common custome of the Realme Baldus saith that custome doth lead succession in principalities which Martinus aduiseth to fixe in memorie because of the often change of Princes and the particular custome of euerie nation is at this day the most vsuall and assured law betweene the Prince and the people And this doe thâ— Emperours Honorius and Arcadius in these wordes coÌ„mand punctuallie to be obserued Mos namque retinendus est fidelissimae vetustatis the custome of faithful antiquitie must be retained which place is to this sense ballanced by Pau. Gastrensis Frane Aretinus and Phil. Corneus who termeth it a morall text The like whereto is found also in the Canon lawe and noted by the Glossographer Archidiaeonus Romanus and Cepola Neither were the Fathers of the Nicene councel of other opinion who thus decreed Let auncient customes stand in strength Whereto also agreeth that old verse of Ennius Moribus antiquis res stat Romana virisque Customes and men of oldest sort The Romane state do best support which is cited by Saint Austin and esteemed by Cicero both for breuitie and truth as an oracle To the same sense Periander of Corinth said that old lawes and new meates were fittest for vse which saying Phauorinus in Gellius did in this manner a little vary Liue after the passed manner speake after the present Hereto also pertaineth that edict of the censors mentioned by Suetonius Aul. Gellius Those things which are beside the custome and fashion of our Elders are neither pleasing nor to be adiudged right Of this point I shall haue occasion more particularlie hereafter to write The third meanes whereby the people may loose their authoritie is by way of conquest For howsoeuer Saint Augustine and after him Alciate doe disallowe ambition of enlarging Empire and tearme warres vpon this cause great theeueries Whereupon Lucane and his vncle Seneca called Alexander the Great a great robber of the world Yet there is no doubte but the sentence of victorie especiallie if the war was vndertakeÌ„ vpon good cause as the conqueror being made his own arbitrator wil hardlie acknowledge the contrarie is a iust title of acquisition reducing the vanquished their priuileges liberties and whole estate vnder the discretion of him that is victorious Caesar sayth He geueth all that denieth right which sentence is approoued by Couaruuias affirming that the victor maketh all which his sword touâ—heth to be his owne So sayth Baldus that he doth his pleasure vpon the vanquished and againe Caesar in the speech of Ariouistus it is the law of armes that the victorious should commaÌ„d those whom they haue subdued euen as they please Clemens Alexandrinus saith the goods of enemies are taken away by right of warre Isocrates hath written that the Lacedaemonians did by title of victorie in this sort maintaine their right We hold this land giuen by the posteritie of Hercules confirmed by the Oracle of Delphos the inhabitantes thereof being ouercome by warre Which was not much vnlike that which Iephte captaine of Israell expostulated with the Ammonites Are not those things thine which Chamos thy God hath possessed but whatsoeuer the Lord our God hath conquered pertaineth vnto vs. Yea God doth expressely giue to the people of Israel the cities which they should subdue some into ful possession others into seruitude subiection by which title Iacob also had giuen to Ioseph his partage among his brethreÌ„ euen the land which he had taken froÌ„ the Amorites with his sword and with his bow It was vsuall to the Romans and as Appian saith iust to retaine principall or direct dominion in al thinges which they brought vnder the sway of their sworde Brissonius hath collected certaine examples of the forme of yeelding vnto the Romans whereby al prophane sacred al humane and diuine matters were submitted vnto them Seeing therefore that the people may so many wayes loose both their power and their right in affaires of state is not your ignorance aduenturous so generallie to affirme that if no one forme of gouerment bee naturall there is no doubt but the people haue power both to alter and limit the same as they please Can no lawe no custome no conquest restraine them Your pen doth range and your iudgement rage beyond al compasse and course of reason You should haue said that there is no doubt but if by al or any of these meanes the right both of succession and gouernment be setled in one familie according to propinquitie and prioritie of bloud the people may neither take away nor varie the same and if they doe they commit iniustice they violate the law of nations whereby they expose themselues not onlie to the infamie and hate of al men but to the reuenge of those who wil attempt vppon them
AN ANSVVER TO THE FIRST PART OF A CERTAINE CONFERENCE CONCERNING SVCCESSION PVBLISHED not long since vnder the name of R. Dolman AT LONDON Imprinted for Simon Waterson and Cuthbert Burbie 1603. TO THE KINGS MOST EXCELLENT MAIESTIE MOst loued most dread most absolute both borne and respected Soueraigne to offer excuse for that which I needed not to haue done were secretly to confesse that hauing the iudgement to discerne a fault I wanted the will not to commit it Againe to seeke out some coulers to make it more plausible were to bring in question the sufficiencie thereof Therefore without further insinuation either for pardon or for acceptance I here present vnto your Maiestie this defence both of the present authoritie of Princes and of succession according to proximitie of bloud wherein is maintained that the people haue no lawfull power to remoue the one or repell the other In which two points I haue heretofore also declared my opinion by publishing the tragicall euents which ensued the deposition of King Richard and vsurpation of King Henrie the fourth Both these labours were vndertakeÌ„ with particular respect to your Maiesties iust title of succession in this realme and I make no doubt but all true hearted Englishmen wil alwaies be both ready and forward to defend the same with expence of the dearest drops of their bloud The Lord vouchsafe to second your honorable entrance to the possession of this crowne with a long prosperous continuance ouer vs. Your Maiesties most humble and faithfull subiect Io HAYVVARD Qui tibi Nestoreum concessit pectus eâ— ora Nestoreos etiam concedat Iupiter annos To R. DOLEMAN YOu will thinke it strange Maister Doleman that hauing lien these many yeares in quiet harbour froÌ„ the tempest of mens tongues you should now feele a storme to breake vpon you peraduenture you were perswaded as euery one suffereth himselfe to be beguiled with desire that this silence did growe eyther vpon acceptance of your opinion or from insufficiencie to oppose against it I assure you neither but partly from contempt and partly from feare Thâ— contempt proceeded from the manner of your writing wherein you regarde not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not how eyther truly or pertinently but how largelye you do wright endeauouring nothing else but eyther to abuse weake iudgements or to feede the humors of such discontented persons as wante oâ— disgrace hath kept lower then they had set their swelling thoughts The feare was occasioned by the nimble eare which lately was borne to the touche of this string for which cause our English fugitiues did stand in some aduantage in that they had free scope to publish whatsoeuer was agreeable to their pleasure knowing right well that their bookes could not be suppressed and might not be answered It may be you will question wherefore I haue not answered your second part it is ready for you but I haue not now thought fit to divulge the same partly because it hath beene dealt in by some others but principallie because I know not how conuenient it may seeme to discusse such particulars as with generall both liking and applause are now determined I forbeare to expresse your true name I haue reserued that to my answere to some cast Pamphlet which I expect you will cast forth against mee and I make little doubt but to driue you in the end to such desperate extremitie as with Achitophell to sacrifice your selfe to your owne shame because your mischieuous counsaile hath not bin embraced AN ANSVVERE TO THE FIRST CHAPter whereof the Title is this That succession to gouernement by neerenesse of bloude is not by lawe of Nature or deuine but onely by humane and positiue lawes of euery particular common wealth and consequently that it may vpon iust causes be altered by the same HERE you beginne that other conditions are requisite for comming to gouernement by succession besides propinquitie or prioritie of bloude which conditions must be limited by some higher authoritie then that of the King and yet are they prescribed by no law of Nature or deuine For otherwise one that wanteth his wits or sences or is a Turke in religion might succeed in gouernment which you affirme to be against al reason law religion wisdom coÌ„scieÌ„ce against the first end of InstitutioÌ„ of coÌ„moÌ„ wealths And that Byllay who maintaineth the contrarie doth it in fauour and flattery of some particular Prince What coÌ„ditioÌ„s are requisit in succession besides priority of bloud by what authority they are to be limited I wâ—l theÌ„ examin wheÌ„ you shal propouÌ„d but for your reason of this assertioÌ„ you must heaue other men theÌ„ Billay out of credit for reason law coÌ„scieÌ„ce wisdom before you cary it for cleare good As for entire coÌ„trariety in religion or differeÌ„ce in some particular points therof whether it be a sufficient cause of exclusion or no I wil refer my selfe to that place where you do strain your strength about it In disabilities to gouern Baldus doth distinguish whether it be naturall or accidentall affirming that in the first case it sufficeth to exclude because he that is incapable of gouernmeÌ„t froÌ„ his birth had neuer any right of successioÌ„ setled in him in the other it doth not suffice because he that is once inuested in right of succession caÌ„not be depriued therof without his fault Many do follow this distinction Io Igneus doth limit it to such dignities as are not absolute But Iâ—son Angelus diuers others do indistinctly hold that the eldest son of a king or other gouernor although he be borne either â—urious or a foole or otherwise defectiue caÌ„not therfore be excluded froÌ„ his successioÌ„ These affirm that any end of institution of common wealths is if not fully yet better satisfied by appointing a protector of the state as vpoÌ„ diuers occasions it hath bin vsuall then by acknowledging another prince as wel for other respects as for that by continuaÌ„ce of succession in one discent a faire ordinary occasion is remoued both of mutiny inuasion For enemies wil not readily attempt subiects do most willingly obey that prince whose ancesters haue worn out those humors both of hatred contempt which do commonly accompany new raised estates I wil not confirm this last opinion by the exaÌ„ple of Neptune the son of Saturn who althogh he was lame on both his legs yet had the gouernment of the sea allotted to him but I wil coÌ„firm it by the practise of Athens Lacedâ—mon the two eyes of Graecia as Leptines Iustine do aptly term theÌ„ Herodotu reporteth that wheÌ„ Alexandrides king of Sparta left 2 sons Cleomenes the eldest distracted in wits Dorieus the yongest both of ability inclination to all actions of honor the LacedaemoniaÌ„s acknoledged Cleomenes for their king Agesilaus also the famous king of Lacedaemon was lame as Plutarch Probus Aemilius do report Paul
parlament vvas king Richard deposed vvher did the states assemble vvhen did they send for the earle of Richmond to put him down by what decree by vvhat messengers Ther is no answer to be made but one and that is to confesse ingenuously that you say vntrue that it is your vsuall manner of deceiuing to impute the act of a few vnto all to make euerie euent of armes to be a iudicial proceeding of the common wealth For it is manifest that the earle of Richmond had his first streÌ„gth from the king of France that after his discent into England more by halfe both of the nobilitie common people did stand for king Richard then stirre against him You adioyne for a speciall consideration that most excellent princes succeeded these vvhom you affirme to be deposed I vvill nor extenuate the excellencie of any Prince but I hould it more vvorthie to be considered that these disorders spent England a sea of bloud In the ende you conclude that all these depriuations of Princes vvere lawfull Nay by your fauour if you sweat out your braines you shall neuer euince that a fact is lawfull beecause it is done Yes you say for othervvise two great inconueniences vvould follow one that the actes of those that vvere put in their place should be voide and vniust the other that none vvho now pretend to these Crownes could haue any tytle â—or that they descend from them vvho succeeded those that were depriued You deserue now to be basted with words vvell stiped in vineger and salt but I will be more charitable vnto you and leaue bad speaches to black mouthes For the first the possession of the crowne purgeth all defects and maketh good the actes of him that is in authoritie although he vvanteth both capacitie and right And this doth Vlpian expressely determine vpon respect as he saith to the common good For the other point the successors of an vsurper by course and compasse of time may prescribe a right if they vvho haue receiued wrong discontinue both pursuit and claime Pâ—normitane saith Successor in dignitate potest praescribere non abstante vitio sui praedecessor is A successor in dignitie may prescribe notwithstaÌ„ding the fault of his predecessor otherwise causes of vvar should be immortall and titles perpetually remaine vncertaine Now then for summarie collection of all that you haue saide your protestations are good your proofes light and loose your conclusions both dangerous false The first doth sauour of God the second of man the third of the diuell To the fourth Chapter which beareth tytle Wherein consisteth principally the lawfulnesse of proceeding against Princes which in the former Chapter is mencioned What interest Princes haue in their subiects goods or liues How oathes doe binde or may bee broken of subiects towards their Princes and finally the difference betweene a good king and a tyrant HEere you cloase with Billaye vpon two points first vvhether a king is subiect to any law Secondly whether all temporalities are in proprietie the Kings but because these questions doe little perteine to our principall controuersie I vvill not make any stay vpon them it suffiseth that vve may say vvith Seneca Omnia rex imperio possidet singuli domino The king hath empire euery man his particular proprietie in all things After this you proceede further to make good that the Princes before mencioned vvere lawfully deposed and that by all law both diuine and humane naturall nationall and positiue Your cause is so badd that you haue need to set a bould countenance vpon it But what deuine lawes doe you alleage You haue largely beefore declared you saye that GOD doth approoue the forme of gouernmeÌ„t vvhich euery common wealth doth choose as also the conditions and statutes which it doth appoint vnto her prince I must now take you for a naturall lyer when you wil not forbeare to bely your selfe you neuer proued any such matter the contrary is euident that sometimes entire gouernments often customes statutes of state very commonly accidentall actioÌ„s are so vnnaturall vniust that otherwise then for a punishment and curse wee cannot say that God doth approue theÌ„ We haue often heard that the Church cannot erre in matters of Faith but that in matter of gouerment a coÌ„mon wealth cannot erre it was neuer I assure my selfe published before But let vs suppose supposall is free that God alloweth that forme of gouernment which euery common wealth doth choose doth it therfore follow that by all deuine lawes princes may be deposed by their subiects these broken peeces will neuer bee squared to forme strong argument But wherefore doe not you produce the deuine canons of scripture surely they abhorre to speake one word in your behalfe yea they doe giue expresse sentence against you as I haue shewed before Well let this passe among your least escapes in making God either the author or aider of rebellioÌ„ you alledge no other humane law but that princes are subiect vnto law and order I vvill not denie but ther is a duty for princes to performe but how proue you that their subiects haue power to depose them if they faile In this manner As the common vvealth gaue them their authoritie for the common good so it may also take the same away if they abbuse it But I haue manifested before both that the people may so graunt away their authoritie that they cannot resumeâ—t also that few princes in yâ— world hold their state by graunt of the people I will neuer heereafter esteeme a mans valure by his voice Your braue boast of all lawes diuine humane naturall nationall and positiue is disolued into smoake you busie your selfe as the Poets wright of Morpheus in presenting shadowes to men a sleepe But the chiefest reason you say the very ground and foundation of all Soft what reason what ground if you haue alreadie made proofe by all lawes humane and deuine naturall nationall and positiue what better reason what surer ground will you bring Tush these interruptions The chiefest reason you say the very ground and foundation of all is that the common wealth is superiour to the prince and that the authoritie which the prince hath is not absolute but by the way of mandate and commission from the common wealth This is that which I expected all this time you haue hetherto approached by stealing steps you are now come cloase to the wall do but mount into credit and the fort is your owne You affirmed at the first that princes might be deposed for disabilitie then for misgouernmenâ— now vpon pleasure and at will For they who haue giuen authoritie by coÌ„mission doe alwaies retaine more then they graunt are not excluded either froÌ„ commanding or iudging by way of preuention concurrence or evocation euen in those cases which they haue giuen in charge The reason is declared by Vlpian because hee to whom iurisdiction is committed