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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A28558	A defence of Sir Robert Filmer, against the mistakes and misrepresentations of Algernon Sidney, esq. in a paper delivered by him to the sheriffs upon the scaffold on Tower-Hill, on Fryday December the 7th 1683 before his execution there.	Bohun, Edmund, 1645-1699.	1684 (1684)	Wing B3450; ESTC R2726	20,559	19

they are not so natural so easie safe and convenient Nor are all Monarchies equally absolute for tho' it is Essential to a Monarch to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is free from Coertion and Punishment and Legibus Solutus Grot. de J. Belli l. 2. Cap. 4. Se per modum Legis id est superioris obligare nemo potest hinc est quod Legum Auctores habent jus Leges suas mutandi This freedom from the Coactive power of Laws is common to all forms of Government And belongs to the Person or Persons in whom the Supreme Power is lodged and is of Absolute Necessity because no Government can subsist without it Patriarch pag. 99. Vide Suarez de leg lib. 1. Cap. 8. Sect. 9. lib. 3. Cap. 35. Sect 3. Nullus potest sibi ipsi praecipere inducendo obligationem quia praeceptum postulat dominum Nullus autem potest jurisdictionem in se habere nec sibi ipsi esse subjectus That is free from the Coactive Power of Laws as Sir R. Filmer hath it p. 91. So that what ever he doth his Subjects cannot call him to an account or punish him Tho' I say these things are Essential to all Monarches as such yet it will not presently follow that all Monarches have equal Powers because tho' at first they were all equal yet since some of them have granted to their Subjects greater Priviledges than others have and so tho' the People cannot claim them as Natural Liberties nor resist their Princes with Force and Arms if they be invaded Yet they may petition them to continue to them the Grace and Bounty of their Ancestors And such Princes are bound so to do not out of Fear of punishment from their Subjects but that they may have the Love and Advance the Welfare of their Subjects which is indeed their own That this is agreeable to Sir Robert Filmer appears pag. 93. Sect. 6. Now albeit Kings who make the Laws be as King James doth teach us above the Laws yet will they rule their Subjects by the Law and a King Governing in a Setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems not to Rule according to his Laws yet where he sees the Laws rigorous or doubtful he may mitigate and interpret And a little after altho' a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good will and for good example Or so far forth as the General Law of the safety of the Common-weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only means for the preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerors bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any municipal Laws of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-fathers and Predecessors in things necessary for the Publick Good of their Subjects Principem non ligari Legibus scilicet quoad vim Coactivam 1. quia Coactio ex intrinseca raticne sua postulat ut ab extrinseco proveniat Ergo Princeps non potest cogere seipsum per suam Legem Nec etiam cogi potest a subditis quia nullus Inferior potest violentas manus inficere in Superiorem nec etiam potest cogi ab aequali qui non habet in illum Jurisdictionem not denique a Superiore quia agimus de Principe qui Superiorem non habet c. Suarez de Leg. 3. cap. 35. Sect. 15. Paena per se fertur in invitum ideo ferri non potest nisi ab habente Superiorem potestatem in alium tanquam sibi subditum ibid. These are the very words of that Author and much more there is to the same purpose in this piece so that tho' Mr. Sidney says That the Regal Power could be restrained by no Laws i. e. that it must of necessity be Tyrannical according to Filmer's description of it yet this is a great mistake for a Man may be as firmly bound by his Interest by the fear of God by Conscience c. as by the fear of Punishment and these are common to Princes with their Subjects and indeed even amongst Subjects where the fear of Punishment is the only motive the Obedience is weak irregular unsteady and for the most part of no long duration His next Complaint is That according to Sir R. Filmer the Regal Power could not be restrained by any Oaths Now let us see in the next place what Filmer saith for that and we shall find it Patriarcha pag. 95. 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 are the Articles of the Kings 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 you to confirm and observe the Laws and Customs of Anticot 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 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 the Equity of his Conscience joyned with Mercy which is properly the Office of a Chancellor 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 Kingdoms 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

ita datum est ut redderent ab iis legibus datum est ad quas revertendum est Cicer. loco infra citat Governour and is not applyable to a Soveraign Prince Ac mibi quidem videntur huc omnia esse referenda iis qui praesunt aliis ut ii qui erant eorum imperto sint beatissimi c. Est autem non modo ejus qui sociis civibus sed etiam ejus qui servis qui multis pecudibas praesit eorum quibus praesit commodis utilitatique servire Cicer. Epist ad Quint. Frat. l. 1. E. 1. Sure no man will hence infer the Flock is to be preferred before the Shepherd In the next place I see no opposition between the two parts of his Adversative Proposition because they are both true in the copulative form For Magistrates Kings are set up for the good of Nations and Nations for the Honour and Glory and Service of Magistrates Thus Eve and all her Children were produced for the Good of Adam God said it is not good that the Man should be alone I will make him a help meet for him Gen. 2. 18. And she was the first Subject and if she were made for her Husbands sake not he for hers the Children will appear by the same reason to be born for the Honour Safety and Service of the Father and not the Father made for theirs And when Families grew to Nations still the Reason and Nature of the thing was the same In short if God be the Author and Giver of Kingdoms this Argument is a sham a delusion if he be not but they are of Humane Institution then there may be something in it But because the first of these contradicts the whole current of Scripture therefore it will take more time to prove it to an Unbeliever than I can spair now and to others it need not be proved 3ly That the Right and Power of Magistrates in every Country was that which the Laws of that Country made it to be Now this is just as wise as that which went before for how came Countiers by Laws Were Princes before Laws or Laws before Princes did the Multitude first make Laws and then chuse Princes to execute them Or did Princes give Laws to their Subjects Were our English Laws for instance made by our Princes or no Go to the Heathen and he will tell thee Justin lib. 1 At first the People were not under Laws The Wills of Princes served instead of Laws Go to Spelmans Collection of Ancient Saxon Laws and see if you can find one that was made by the People without the Prince So that this is a very silly Proposition and the Allegiance which we owe to our Soveraign and our Ancestors ow'd to his is the cause of our submission to the Laws and not the Laws the cause of our submission to him and them 4ly That those Laws were to be observed and the Oaths taken by them having the force of a Contract between Magistrates and People could not be violated without danger of dissolving the whole Fabrick Now suppose all this be granted what follows Why nothing but that Princes should be as careful as is possible to keep their Laws in exercise and not to break their Oaths Well but suppose a Prince should not observe his Oath or Laws What then Or suppose he do and such Subjects as you will not be satisfied but will belie and slander him to his People as one that hath those about him that intend to bring in Popery and Arbitrary Government Well suppose in the next place the poor People take the fright and believe all this what then Why this will indanger the dissolving the whole Fabrick Tryal p. 23. But will the People have right hereupon to rise and punish the King Must he expect that the performance will be exacted or revenge taken by those he hath as they pretend betrayed Here lies the difference betwixt you and Sir R. Filmer Declaratur jus Creditoris sed coactio sequi non potest ob statum eorum quibuscum negetium est Nam Subditis cogere tum cui sunt Subditi non licet c Grot. de Jun. Belli lib. 2. cap. 14. Sect. 6. n. 2. Tho I must tell you our Kings do not commence their Reigns from the time of their taking of the Oath but from the moment of the Expiring of their Predecessors and are Soveraigns before and without this Oath Which is an odd kind of Contract given and made after the party concerned and bound is in full and peaceable Possession and which if he should deny the other party have no power to exact Upon the breach of which there lies no Action but in Heaven God being the only Judge In short it is like the Oath God sware to Abraham a condescention to humane infirmity to allay mens Fears and excite their Love Fidelity and Gratitude That Vsurpation could give no Right This Proposition if it be joyned to what follows viz. That if Pipins Usurpation on the Merovean Race Hugh Capets on the Caroline Family being Acts of State i. e. made with the consent of the People be not good there is not a King in the World that hath any Title to the Crown he bears c. seems to be thus understood by Sidney That no duration of time be it never so long can give a right to that Family whose Ancestor came in by Vsurpation Than which nothing in the World is more false except it be that proposition that all the Kings in the World are derived from Usurpers For it is apparent to all that our King is not this Family being derived from the Saxon Line who were Princes before the * Cerdicius primus West Saxonum Rex Gente Germanus amplis Majoribus quippela Wodeno decimus Will. Mal. ●l i cap. 42. de cujus stirpe m●●tarum Provinciarum regium genus orignem du●it Bedae Eccls H. l. 1. cap. 15. from these West Saxon Kings his Maesty is descended H. the 2d being the Grandchild of Matildis which was the Daughter of Margaret Queen of the Scots the Sister of Edward the last Male of the West Saxon Line Ailredi Ginealog Regum Anglorum H. 2. ●●diceta inter Decent Scriptores Pag. 350. Normans entered England and although there have been several Usurpations in the Line yet the Line was never changed thereby but His Majesty is descended from all that ever had a Right to the Crown of England whose Posterity is not extinct So that there is never a Person in the whole World whose Ancestor was put by to make way for his Majesties Ancestor And it may be t is the most Antient Race of Kings that is upon the face of the Earth God preserve it for ever He has another odd notion which I believe is his own That tho' a Prince who hath no Title puts by or puts out one that hath an undoubted Title to an hereditary Kingdom Yet if he