make the Countenance of Truth more Orient For unless we will openly proclaim Defiance unto all Law Equity and Reason we must for there is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessor putteth the Successor by Blood in Seisin Those publick Solemnities before-mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of inducing of him into possession of that thing he hath Right unto This is Mr. Hooker's Judgment of the Israelites Power to set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made choice of Joas a Child but of seven years old nor of Manasses a Boy of Twelve since as Solomon saith Wo to the Land whose King is a Child Nor is it probable they would have elected Josias but a very Child and a Son to so wicked and Idolatrous a Father as that his own Servants murthered him and yet all the people set up this young Josias and slew the Conspirators of the Death of Ammon his Father which Justice of the People God rewarded by making this Josias the most Religious King that ever that Nation enjoyed 9. Because it is affirmed that the People have Power to choose as well what Form of Government as what Governours they please of which mind is Bellarmine in those Places we cited at first Therefore it is necessary to Examine the Strength of what is said in Defence of popular Common-weals against this Natural Form of Kingdoms which I maintain'd Here I must first put the Cardinal in mind of what he affirms in cold Blood in other Places where he saith God when he made all Mankind of one Man did seem openly to signifie that he rather approved the Government of one Man than of many Again God shewed his Opinion when he endued not only Men but all Creatures with a Natural Propensity to Monarchy neither can it be doubted but a Natural Propensity is to be referred to God who is Author of Nature And again in a Third Place What Form of Government God confirmed by his Authority may be gathered by that Common-weal which he instituted amongst the Hebrews which was not Aristocratical as Calvin saith but plainly Monarchichal 10. Now if God as Bellarmine saith hath taught us by Natural Instinct signified to us by the Creation and confirmed by his own Example the Excellency of Monarchy why should Bellarmine or We doubt but that it is Natural Do we not find that in every Family the Government of One Alone is most Natural God did always Govern his own People by Monarchy only The Patriarchs Dukes Judges and Kings were all Monarchs There is not in all the Scripture Mention or Approbation of any other Form of Government At the time when Scripture saith There was no King in Israel but that every Man did that which was Right in his Own Eyes Even then the Israelites were under the Kingly Government of the Fathers of particular Families For in the Consultation after the Benjamitical War for providing Wives for the Benjamites we find the Elders of the Congregation bare only Sway. Judges 21.16 To them also were Complaints to be made as appears by Verse 22. And though mention be made of all the Children of Israel all the Congregation and all the People yet by the Term of All the Scripture means only all the Fathers and not all the whole Multitude as the Text. plainly expounds it self in 2 Chron. 1.2 where Solomon speaks unto all Israel to the Captains the Judges and to every Governour the Chief of the Fathers so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 Kings 8.12 2 Chron. 5.2 At that time also when the People of Israel begg'd a King of Samuel they were Governed by Kingly Power God out of a special Love and Care to the House of Israel did choose to be their King himself and did govern them at that time by his Viceroy Samuel and his Sons and therefore God tells Samuel They have not rejected Thee but Me that I should not Reign over them It seems they did not like a King by Deputation but desired one by Succession like all the Nations All Nations belike had Kings then and those by Inheritance not by Election for we do not find the Israelites prayed that they themselves might choose their Own King they dream of no such Liberty and yet they were the Elders of Israel gathered together If other Nations had Elected their own Kings no doubt but they would have been as desirous to have imitated Other Nations as well in the Electing as in the Having of a King Aristotle in his Book of Politicks when he comes to compare the several Kinds of Government he is very reserved in discoursing what Form he thinks Best he disputes subtilely to and fro of many Points and Judiciously of many Errours but concludes nothing himself In all those Books I find little Commendation of Monarchy It was his Hap to live in those Times when the Graecians abounded with several Common-wealths who had then Learning enough to make them seditious Yet in his Ethicks he hath so much good Manners as to confess in right down words That Monarchy is the best Form of Government and a Popular Estate the worst And though he be not so free in his Politicks yet the Necessity of Truth hath here and there extorted from him that which amounts no less to the Dignity of Monarchy he confesseth it to be First the Natural and the Divinest Form of Government and that the Gods themselves did live under a Monarchy What can a Heathen say more Indeed the World for a long time knew no other sort of Government but only Monarchy The Best Order the Greatest Strength the Most Stability and easiest Government are to be found all in Monarchy and in no other Form of Government The New Platforms of Commonweals were first hatched in a Corner of the World amongst a few Cities of Greece which have been imitated by very few other places Those very Cities were first for many Years governed by Kings untill Wantonness Ambition or Faction of the People made them attempt new kinds of Regiment all which Mutations proved most Bloody and Miserable to the Authors of them happy in nothing but that they continued but a small time 11. A little to manifest the Imperfection of Popular Government let us but examine the most Flourishing Democracy that the World hath ever known I mean that of Rome First for the Durability at the most it lasted but 480 Years for so long it was from the Expulsion of Tarquin to Julius Caesar Whereas both the Assyrian Monarchy lasted without Interruption at the least twelve hundred Years and the Empire of the East continued 1495 Years 2. For the Order of it during these 480 Years there was
had no formal Parliaments till about the 18 th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of his Privy Councel alone And the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after the establishment of the Parliament by colour of it that they had so great Daring If any desire to know the cause why Hen. 1. called the People to Parliament it was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the better to secure himself against Robert his elder Brother he flattered the People with those Charters yea King John that confirmed them had the like Respect for Arthur D. of Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original from Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had first an obscure Birth by Vsurpation was fostered and shewed to the World by Rebellion in brief the King called the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that the Commons were not called to Parliament until Hen. 3. days this appears by divers of the Precedents formerly cited to prove that the Barons were the Common Councel For though Hen. 1. called all the People of the Land to his Coronation and again in the 15. or 18. year of his Reign yet always he did not so neither many of those Kings that did succeed him as appeareth before Secondly For calling the Commons by Writ I find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words In ancient times after the King had summoned His Parliament innumerable multitudes of People did make their Access thereunto pretending that Privilege of Right to belong to them But King Hen. 3. having Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that none might come to His Parliament but those who were specially summoned To this purpose it is observed by Master Selden that the first Writs we find accompanied with other Circumstances of a Summons to Parliament as well for the Commons as Lords is in the 49 of Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these words King Hen. 3. out of a great Multitude which were seditious and turbulent called the very best by Writ or Summons to Parliament for he after many Troubles and Vexations between the King himself and Simon de Monefort with other Barons and after appeased did decree and ordain That all those Earls and Barons unto whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament and no others but that which he began a little before his Death Edward 1. and his Successors constantly observed and continued The said prudent King Edward summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Vnderstanding Also Mr. Cambden in another place saith that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well-Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10 H. 6. Our Lord the King ordained that Knights be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment hath ordained that if any Assault or Fray be made on them that come to Parliament or other Councel of the King the Party which made any such Affray or Assault shall pay double Damages and make Fine and Ransom at the Kings Will. 23 H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8 Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
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