or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
Authour is to be Servant to his Eldest Brother or to whomever else his Father pleased to bequeath him Is not the case the same And as for the quiet of the Family which is supposed to be preserved by the Sons absolute submission rather than his resistance in any circumstance I think it would rather increase Dissentions by encouraging of Fathers to use their Power over their Children not as Reason but Drunkenness or Passion may impel them Whereas this Right of Children in defending their Lives and not being obliged to give them up at their Fathers pleasure will rather make Parents act moderately and discreetly towards their Children when they know they are not obliged to stay or bear with them upon other conditions than that they may enjoy their Lives in safety and the ordinary means thereof with some comfort Not that I give Children any Right as I said before to disobey their Parents or resist them upon every slight occasion but rather to bear with their Infirmities as far as it is possible And to suffer divers Hardships and Inconveniencies from them rather than to resist or leave them considering the great obligation they owe them So that I do not allow this Remedy but in case of extreme Necessity yet of which the Sufferer only in the state of Nature can be Judge since in that state where there is no Umpire without both their consents but God only every man is Judge when his Life is in danger And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission without any respect to this Right then it would be his duty to give himself up to be robb'd or kill'd by any one who had the wickedness to attempt it because himself being innocent may go to Heaven and the other being guilty of an intent to rob or murder may be damned if he be killed And besides it would more conduce to the preservation of Mankinde that but one man should be lost whereas by resistance they may both perish Yet I suppose no man is so sottish as to hold he ought quit his own preservation in these cases or if he do hold it for discourse sake I am sure he would not be so mad as to observe it For this were such an Argument as to hold Because some men may abuse that Law of Self-preservation to another mans destruction Therefore it were unlawful to defend a mans self at all As for the Examples of those Nations and Common-wealths who have permitted Fathers to exercise a Despotick Power over their Children The Law of Nature or right Reason is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth which are often different and contrary to each other Therefore as to the Jewish Law though I will not say it was contrary to the Law of Nature yet it was extremely rigorous and severe in all its dispensations and does not now oblige Christian Common-wealths in this particular as in divers others much less in the state of Nature And as for the Romans they saw the inconveniencies of this Absolute Power and retrenched it by degrees until it came to be no more than now with us and in most Countreys of Europe So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children depending upon the Roman and Jewish Law may be easily answered from these grounds Having as I hope clear'd this main point of Paternal Authority and of Natural Obedience without giving an extravagant power to Parents on the one hand to abuse their power or a priviledge to Children on the other side to be stubborn or disobedient to their Parents If then this Paternal Authority extend farther than I have seated it I shall own my self beholding to any Friend of the Authour 's or his Opinions to shew me my errour But if they cannot I desire they would consider whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution can extend farther than the natural Authority of Fathers from whom they are supposed to derive it and on which it is founded And if it appears that Princes have such Power as our Fathers then all that the Authour hath writ on this subject signifies just nothing Therefore I shall now proceed to examine the rest of his Principles and shall I hope prove that supposing this Fatherly Power as absolute as the Authour fancies yet that his Divine Absolute Monarchy cannot however be derived from thence The Authour seems to think it a Question very easie to be answered If any one asks what comes of this Right of Fatherhood in case the Crown Fatherly power escheat for want of an Heir whether it fall to the People Patriarch P. 20. or what else becomes of it To which his Answer is That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir for an Heir there is always If Adam were still living and now were ready to die it is certain that there is but one Man and but one in the world who is next Heir although the knowledge who should be that one Man be quite lost So that this fine Notion signifies nothing now for Adam being dead and his right Heir not to be known it is all one as if he had none since for ought I know to the contrary the Authors Footman may be the Man But to help this the Author hath found out a couple of Expedients such as they be The first is Directions for Obedience p. 69. That an Vsurper of this Power where the knowledge of the right Heir is lost being in by possession is to be taken and reputed for the true Heir and is to be obeyed by them as their Father And if this will not do he gives us another and tells us Patriarch p. 21. The Government in this case is not devolved upon the multitude but the Kingly power escheats in such cases to the Fathers and independent Heads of Families For every Kingdom is resolved into those parts of which it was first made Each of which we will examine in their turn To begin with the former let us see if it be so easie a thing as the Authour makes it to know who was Adam's or any Monarch's right Heir setting the Municipal Laws of the Country aside so that the People cannot be excused of wilful Ignorance or Negligence if they loose this knowledg Where by the way I observe that as easie a thing as it was to know who was Adam's right Heir and upon whom by the Laws of God and Nature the Crown is to descend upon the Death of the Monarch yet he no where positively answers this important Question For sometimes he is to claim by descent as in this instance of the Heir of Adam sometimes by his Father's last Will as in the case of Noah's Sons according as the Examples out of
have survived his Father If he say that Adam might leave it to Seth by Will this is gratis dictum and it lies upon him to prove that Adam made a Will or if he did how it could bind his true Heir If he say that Seth ought to succeed and govern his Brethren as being nearer in bloud to Adam what reason was there that the eldest Son's son should be punished and lose his Birthright for that which was not his fault but misfortune viz. that his Father was murdered before his Grandfather died Nor could Seth claim being elder and consequently wiser than his Nephew for his Nephew must be older since Seth was not born until after Abel was killed But if it be affirmed that the eldest Son of Abel ought to succeed and represent his Father I ask by what Law If it be replied that it is to be supposed that Adam if he had made a Will would rather have had his Grandson succeed him than his younger Son this is gratis dictum and were to affirm that the Right of governing is bequeathable which I have already confuted But if it be said that this Son of Abels should succeed because he represents his Father I would ask them by what Law this Right of Representation should take place before propinquity of Bloud or how could the Fathers expectation onely confer a Right to his Son in that which the Father was never possessed of So that there being equal Reasons on both sides and neither Law nor Precedent in the case there remained no way to decide this Controversie but either Combate or the Judgment or Arbitration of the rest of Adam's Descendants I suppose the Author will not allow the former sufficient to confer a good Title since the best Title might have the worst success in that Appeal to the Sword If he allows the latter then this hereditary Monarchy of Adam became Elective and depended upon the Will of all the Heads of the Families which descended from Adam For it is not likely in so doubtful and material a point as who should govern any of them would lose the priviledge of giving his Vote And if so this Right of Succession depended upon their Wills which might give it to which of the two Competitors they liked best and this being once done might for quietness pass into a Custom or Law for the future And that this Right of Representation where the Son dies before his Father cannot be decided by the Law of Nature or Reason alone is evident in that divers Nations or distinct Tribes of People have had different Customs about it and have established this Right of Succession divers ways For though the Roman or Civil Law allow of this Right of Representation yet the Germans and all Nations descended from them did not admit it until very lately See Grotius de J. B. Li. cap. 7. which shews there is nothing but Custom in the case And upon this pretence the League in France admitted the Cardinal of Bourbon King by the name of Charles the X before his Nephew the King of Navar his elder Brothers Son who died before him And that this difficulty who shall succeed the Uncle or the Nephew hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom which is but the continued Will of the People may appear by those different Judgments that have been in all Ages made on this matter for when there arose a Controversie between Areus Son of Acrotatus eldest Son to Cleomenes King of Lacedaemon and Cleomenes the second Son of the said Cleomenes the Senate adjudged the Royalty for Areus against Clomenes But in Spain Mariani l. 13. c. 3. after the death of Alphonso the V King of Castile the States of Spain acknowledged his younger Son Sancho to be King and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son though he had the Crown left him by his Grandfathers Will. And when Charles the II King of Sicily died Vicerius in Vita Henry 7. and left a Grandson behind him by his eldest Son surnamed Martel and a younger Son called Robert the matter being referred to Pope Clement V he gave judgment for Robert the younger Son of Charles who was thereupon proclaimed King of Sicily And it seems Glanvil who was Lord Chief Justice under Henry II makes it a great Question who should be preferred to the Crown the Uncle or the Nephew So that it was no strange thing for King John to make himself King before his Nephew Arthur since it was a moot point among the Lawyers of that Age who ought to succeed And where no Power could intervene it was decided by War and sometimes single Combats which Historians mention to have been waged between Uncles and Nephews contending for the Principality and not onely in this case but in all others where the Succession of the Empire is not settled by such Laws or Customs it lies continually liable to be disputed between the Sons or Grandsons of the last Prince nor can ever be decided but by the Sword Of which there is an Example in one of the greatest and most absolute Monarchies in the world viz. the Empire of the Mogul where for want of settling the Succession at first by a positive Law See Bernier's Travels 1 part and Tavernier Lib. Sir Tho. Row's Embassie Purchas part Terrey's Relation of Indostan and making the Raias Omrahs or great Lords give their consent to it and swear to observe it and so have made and ascertained it as an inviolable Custom as it is in the Ottoman Empire now upon the death of an Emperour though he declare by his Will who shall be his Successor yet the Grandees who are so many petty Princes and lead the People under their Command after them as they please do not think themselves at all obliged to observe it much less to set the Crown upon the eldest Sons head but every man is for that Son of the last Mogul whom they like best that is him they conceive will suit best with their interests and designes Nor do the Brothers think themselves at all obliged to yield to their eldest Brother whom they are assured will put them to death or make them perpetual Prisoners So that every one provides for himself and makes his Party as strong as he can by Gifts and Promises among the Grandees against his Fathers death Nay lately this prize hath been played among the Sons even in their Fathers life-time as in the case of the late Sha-Jehan who lived to see all his Sons killed and his person made a prisoner by his youngest Son Aureng Zebe who is for ought I know Mogul at this day And if any man thinks this onely an Evil peculiar to this Empire and not to others let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies
difficult Cases by way of Appeal in time of peace But that the Government was purely Aristocratical this Author himself confesses even when he denies it He tells us p. 50. 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 i◠the consultation for providing Wives for the Benjamites we find the Elders of the Congregation bare the onely sway Judg. 21.16 Now what is an Aristocracy if this be not viz. an Assembly of the Elders or chief of the Fathers that is the best men meeting consulting and resolving of publick business What power these Fathers of Families had at home is not declared whether it was independant or else did submit to the government of its own Tribe But that it was Aristocratical is apparent if Josephus understood any thing o◠the History or Antiquities of his own Country which he undertook expresly to write of For Antiq. lib. 4. cap. he brings in Samuel speaking to this effect to the People desiring a King An Aristocracy is the best Government neither should you require any other sort of Government But as for the Kings which God gave them afterwards there is nothing to be drawn from thence for this Authors advantage for he himself tells us there is no use to be made of it Vid. His Observations upon Milton p. 20. For speaking against Milton's sence of the words in Deut. 17.14 he says Can the foretelling or the forewarning the Israelites of a wanton wicked desire of theirs i. e. of a King which God himself condemned be an Argument that God gave or granted them a Right to do such a wicked thing Or can the narration and reproving of a future Fact be a donation and approving of a present Right or the permission of a sin be made a commission for the doing of it So that it seems sometimes when it makes against the Author's sence God is so far from approving Kingly Government that it is a sin for the People so much as to desire it But it is likewise as great a Question whether after Kingly Government was established it was likewise absolute so that the King might put any body to death right or wrong For we find 1 Sam. 14.45 the People rescued Jonathan out of the hands of his Father Saul and would not permit him to be put to death for his breach of the rash Vow which Saul had made nor is it imputed to the People that is the Army for a sin Neither could Ahab take away Naboth's Vineyard and his Life together but by colour of Law and a legal Tryal Neither could King Zedekiah save Jeremy the Prophet from the power of the Princes who cast him into the Dungeon for Jer. 38. v. 5. Zedekiah said Behold he is in your hand for the King is not he that can do any thing against you His fourth reason is that God in Scripture mentions not nor takes notice of any other Government than Monarchical This is but a Negative Argument at best the Scriptures not being written to teach us Politicks but to declare God's Will and to shew us his merciful and gracious dealing with the Jews notwithstanding all their backslidings and rebellions against his Commandments His fifth reason is that Aristotle saith in his Ethicks chap. 11. That Monarchy is the best form of Government and a Popular Estate the worst The words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which though true does not enforce any Obligation to the one more than the other for though a man be obliged to his own preservation yet he himself is the onely Judge of the means and if he erre and use the worst means for the best they are not in fault if they acted as well as they could and to the best of their knowledge for that end Neither does it follow that there are no more sorts of Government than these two to be chosen Nor is it any better Argument that the world for a long time knew no other sort of Government but onely Monarchy and that the Platforms of Commonwealths were hatched amongst a few Cities in Greece and that they were first governed by Kings until the wantonness ambition or faction of the People made them attempt news kinds of Regiment But let any one read the Greek Histories and he will find the cruelty and tyranny of Kings did more frequently give occasion to the People to run into Commonwealths than either the ambition or faction of the People And as for the antiquity of Monarchy the alteration of it rather makes against him since the whole Body of a People seldom alter a Government unless they find themselves hurt by it and that it proved inconvenient for them I shall not dispute which is the better Government Monarchy or Commonwealth since in my own judgment I incline to the former where the Monarch is good And though I will not affirm as the Author does Directions for Obedience p. 71. That even the Power which God himself exerciseth over mankinde is by the Right of Fatherhood as he is both King and Father of us all Since besides his absolute power and his being the sole cause of our production he is also endued with that infinite Wisdom and Goodness that he still orders all things for the good of his Subjects and so hath besides his Power the highest Right to govern as the best and most perfect being So likewise Monarchs as far as they imitate the divine Wisdom and Beneficence have the like Right to be called Gods Lieutenants Nor shall I trouble my self as the Author does p. 67. and so on to 73. to compare the Mischiess and Inconveniencies that have been found in absolute Monarchical and Popular Government there being various Examples both of Cruelty and Injustice in both and I think they are both the aptest of any sorts of Governments to run into Extreams and I know not whether there have not been found out a Regal Government mixt with somewhat of an Aristocracy or Democracy which if truely observed were freest from the inconveniencies of either But this Author is so full of the mischiefs of Commonwealths that he sometimes mistakes in History and makes those Disorders to arise from the faults and licentiousness of the People which proceeded indeed from the Usurpation of their Power Thus he makes it the height of the Roman Liberty that its Subjects might be killed by those that would and sets forth the Tyranny of Sylla as an effect of the Roman Freedom when indeed it was rather an effect of the absolute Monarchy usurped by Sylla during his Dictatorship So that Dionysius Halicarnasseus gives us his judgment of those actions of Sylla in these words Lib. V. circa finem I would onely shew that for these wickednesses the name of Dictator became hateful for all things seem good and profitable onely
rate his power now encreases but that he may be so he threaten to cut their Banks and let in the Sea to drown them and their Country if they will not yeild it up to him may they not if they find they cannot resist him submit themselves to him and make the best terms they can for themselves and are they not then obliged by the Authors own Principles to continue his Subjects and yet here is no actual War or inundation but threats only to force them to this submission So that the Authors Supposition is false that no case can happen but an actual War only which can reduce a People to such terms of extremity as to compell them to an absolute abnunciation of all Soveraignity and so likewise is this consequence also which he assumes from thence then war which causeth that necessity is the prime means of extorting such Soveraignity and not the free gift of the People who cannot otherwise chuse but give away that Power which they cannot keep for they might either leave their Country or bury themselves in it But it seems the Author had forgot his Logick or else he would have remembred to distinguish between Causa sine qua non and Causa efficiens a cause which does not properly give being to a thing and yet without which it could not have been produced Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner yet the true Cause of his becoming a lawful Servant to his taker does not proceed from his conquering him but from his coming to Terms with him that he shall be dismist of his Fetters or Imprisonment upon Condition he will serve faithfully and not run away and all Moralists consider those actions they call mixt as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones though they commenced from some kind of force since in this case the Merchant might if he pleased keep his goods if he would venture his life So in many cases may a Conquered People if they have never neither by themselves or their representatives owned the Conquerer But as much as the Author quarrells at the word usufructuary Right in Grotius as too base to express the Right of Kings and as derogatory to the dignity of Supreme Majesty yet the the French are not so scruplous but in the absolutest Monarchy of Europe plainly declare that their King hath but an usufructuary right to his Kingdom and the Territories belonging thereunto or that he can any way charge them with his debts or alienate or dispose of them without the consent of the States of France See Mezeray in the reign of this King 1527. and was so solâ—mnly declared by that great Assemby des notables called by K. Francis the First to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid their sense was that Burgundy which by those Articles was to be delivered up was an inseparable Member of the Crown of which he was but the usufructuary and so could not dispose of the one any more than of the other nor was this any new opinion but as old as St. Lewis who being desired by the Emperour Frederic III. to restore the King of England his just Rights To which the said King replyed whose words I will faithfully translate as they are in Matthew Paris p. 765. Anno Dom. 1249. By the holy Cross with which I am signed I would willingly do it if my Counsel i. e. the Estates would permit it because I love the King of England as my Cosen but it were hard at this very instant of my Pilgrimage viz. for the holy land to disturb the whole body of my Kingdom by contradicting the Counsels of my Mother and all my Nobles although the Intercessors are very dear to me neither is this to make a Kingdom all one with a Ferm as the Author words it since in the civil Law it signifies not only one that barely receives the rents or profits but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner though he have not power to sell or give it away Nor I suppose will any French or English Subject unless such bigotted ones as the Author acknowledge any Forraign Prince or other Person can obtain an absolute Dominion over them by Conquest I am sure they were not of that opinion between two hundred and three hundred years agoe when the King of England brought a plausible Title into France and had it backt by almost an entire Conquest of the whole Kingdom and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris and yet after all this the French had so little Conscience as to proclame Charles the Dauphin King of France and to drive the English out of the Country and renounce their allegiance which they had sworn to our Kings Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary P. 69. to bestow Supreme power in succession But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown let us see the consequences of this Doctrine For the Crown must be of England in the nature of an absolute Fee Simple and is consequently chargeable by any act or alienable by the Testament of the King in being So that then King John had Power to make this Kingdom feudatary and tributory to the Pope and so the Pope hath still a good Title to it And since Religion with these Gentlemen diminishes nothing from the right and absoluteness of Monarchy the same King might have made over his Kingdom to the Emperor of Moroco as the Historians of those times relate he would and so the Sarracen Prince might have entred upon the non-performance of the Conditions and have turned out his Vassal and been King here himself which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms let any man consult Matthew Paris and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate Anno 1216. P. 280. that no King could give away his Kingdom without the consent of his Barons who are obliged to defend it and all the Nobility there present began to cry out at once that they would assert this Priviledge till death That no King or Brince could by his sole Will give away his Kingdom or make it tributary by which the Nobles of the Kingdom might become Slaves Nor did the English Nobility think otherwise since this was one of the causes of their taking Arms against King John Matt. Paris 1245. p. 659. 666. and afterwards in his
Anno 125. But to return to our Author from whom I have a little degressed I think he is mistaken in affirming all Power which enables in some cases a Man to resist or oppose his Governors must be Authoritative and Civil Therefore I shall put the same case again which I did about the beginning of these Observations concerning the Natural Power of Fathers Suppose a Son cannot otherwise preserve his own Life or that of his Mother or Brothers from the rage of his mad or drunken Father but by holding him or binding him if need be I suppose no reasonable Man will deny the lawfullness of this action and yet this Power over his Fathers Person is not Authoritative or Civil but Moral and which the Son does exercise not as Superior to his Father but as a Rational Creature obliged by the Laws of Nature to preserve his own being and to endeavour the good preservation of his Parents and Relations not against Paternal Authority which is always Rational and for the good of the Family but Brutish Irrational force Which God gives every Man a right to judg of so likewise if a Prince prove either a Madman or a stark Fool the power which their Subjects exercise in the ordering him or confining him and appointing Regents or Protectors to Govern for him and in his Name is not Authoritative or Civil since the Prince himself who is the Fountain of all Authority gave them no such power and therefore must be Natural or Moral or residing in them as reasonable Creatures And of this we have had divers examples Thus the French were forced to confine their Mad King Charles VI. and appoint his Queen to be Regent during his Distraction So likewise Joan Queen of Castile falling Distracted upon the Death of Her Husband King Philip I. Her Father Ferdinand governed in Her right and after His decease Her Son Charles afterwards Emperor she continuing bereft of her understanding was admitted King of Castile And what hath been done lately in Portugal is so notorious that it needs not a particular Recital So then Mr. Hs. expression That this is a Moral Judgment residing in reasonable Creatures and lawful for them to execute may not seem so absurd as to imply what our Author endeavours to draw from thence that Authoritative and Civil Judgment does not reside in reasonable Creatures nor can be Lawfully executed since a Reasonable Creature may be endued with another Power of acting precedent to that of the Civil So I shall likewise leave it to the Judgment of the impartial Reader whether this conclusion fits so well with Anarchy as the Author will have it As also whether Mr. H. take away all Government by leaving every Man to his own Conscience to judg when the Prince oppresses him for else how could he sue for relief to the Prince himself and so all actions a Prince did or commanded would be just and lawful though never so contrary to Reason or positive Law And so there would be truly as Mr. Hobs asserts no other measure of good and evil right or wrong but the Princes will But as I have no where maintained with Mr. H. in his Treatise which our Author writes against that ours is a mixt Monarchy though limited by Law and therefore shall not maintain as he does the King to be one of the Three Estates according to the Opinions held during the late Wars So on the other side that there is and ever hath been such a Government as a mixt Monarchy in some Countreys I hope I have made out notwithstanding what this Author says to the contrary and that these might more properly be called a mixt Monarchy then mixt Aristocracy or mixt Democracy Since all Governments of this kind take their denomination from the most Honourable and Predominant part in it in whom the Executive or Authoritative part resides And though perhaps some of these Governments may not seem so firm so regular and well constituted as others it does not therefore follow that they are meer Anarchies or that all mixtures and limitations of Monarchy are vain or unlawful as our Author imagines For a further proof of which I will not give you may own sence alone but likewise of that eminent Civil Lawyer Mr. Pufendorf now or very lately Gretian Professor in the University of Vpsal in his excellent work De Jure Naturae Gentium Dedicated to Charles the 10th now King of Sweden and certainly holding a place of such profit and Credit in his Dominions he would be too prudent to speak any thing prejudicial to Monarchy or contrary to the Government of Sweden in particular But to return to the matter in the above-mentioned Treatise which for the benefit of those that cannot easily procure the Latine Original Lib. 7. Cap. 5. where speaking before of the several kinds of mixt Governments or Common-wealths § 14. He expresses himself to this purpose as near as I can Translate it Yet however as I will not envy the commendation of constancy in any that will obstinately maintain the name of a mixt Common-wealth to those sorts of Government he had before recited So it seems to us more ready and easie for the demonstrating divers Phaenomena in certain Common-wealths if we rather call those irregular Common-wealths in which neither one alone of the three irregular Forms is found neither an absolute Disease or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 takes place and which yet cannot be strictly referred to distinct confederate States Concerning which it is generally to be observed that they depart in this from a regular Common-wealth whilst in them all things do not seem to proceed as it were from one Soul and will neither to be governed by one Common Authority Yet they diffor from the confederate State in that they are not compounded of distinct and perfect Common-wealths as these are Yet they are far from those things that they count Diseases in a Common-wealth because a Disease that always carries with it as it were a shameful and unallowable pretence since it proceeds from â—he evil administration of a good Form of Government or from Laws and Institutions ill contrived and put together Whereas this irregularity does not only intrinsically affect the very Form it self but also being publickly and lawfully establish'd dares shew it self openly and without shame So that a Disease ought to be supposed as not intended by those who first Instituted this Common-wealth since the irregularity arose or was Confirmed from the will or approbation of those of whom the Government was at first Constituted as a building is one thing whose design agrees with the Rules of Architectture but either its materials are naught or else thorough the carelesness of the Dwellers the Roof gapes and the Walls are ready to fall and another thing where a Model though differing from the common Rules of Building is dedesigned by the Owner or Architect himself Lastly some of these irregularities may have continued from the
very Constitution of the Commonwealth some have crept in by success of time and by insensible degrees So that it might happen that a regular Form could not well be Instituted from the very Original of the Commonwealth or some remarkable mutation of it either by the Founders or Authors of that mutation either thorough their unskilfulness or because the urgency of their affairs or temper of the People did not permit them to consider of the means of doing it otherwise nay oftentimes thorough either the carelesness of those that Govern or by some other ' occasion a Disease invades the Commonwealth which when it hath taken such deep Root that it cannot be expelled with out the destruction of the Government there is nothing then to be done then that the Disease should cease to be so by a Publick Sanction and that which hitherto was Usurpation Faction on Contumacy may for the future become a Priviledge or right So much of Irregular Governments or Monarchies But in the next Chapter of the same Book the same Author speaking of the rights of the Supreme power where when he hath first proved what it is that makes any Power be called Supreme in a Common-wealth and that he who hath this Power must be free from punishment and not obnoxious to humane Laws and that he hath confuted the Long Parliaments distinction of a real and Personal Majesty and that Kings properly so called must be Superior to all the People and having answered the Objections to the contrary at last he proceeds § 7 to shew what absolute Power is and that it is not found alike in all Forms of Common-wealths and gives us the true Original of limited Governments his sence is so good that I shall not much contract what he says but give it you as it is § 7. 8 9 10. Besides it is apparent enough that in some Common-wealths the Royal Authority is free in the exercise of its Acts but restrained to a certain Mode of acting from whence arose the distinction of Empire into limited and absolute where in the first place it is to be explained what is meant by the word absolute which is so odious to those who have had their Education in free Common-wealths Indeed the same word being ill interpreted may incite some Princes to vex their Subjects and to commit a great deal of wickedness Flatterers adding fuel to the Fire who are still ready to encourage the Ambition and other Vices of their Prince at this rate Sir you are absolute therefore if it pleases you it is lawful therefore you may tire out your own Subjects and all your Neighbours with unnecessary Wars that you may appear a mighty Monarch and set forth your own Glory therefore you may affront and insult over whom you please and drain your Subjects with all sorts of Exactions that you may have wherewith to serve your Luxury or Ambition according to the Flattery of Anaxarchus to Alexander upon the death of Clitus that right and wrong Plutarch ad Princi indoct do sit by Jupiter that whatsoever the King does ought to be accounted right and just so that there are some who go about to establish the absolute right of Kings by Arguments that seem to have no other Measure thereof then impunity and a License to vex their People Therefore as by an absolute Liberty of particular Men is meant their judging of their own affairs and actions according to their own and not anothers judgment yet still supposing their Obligation to the Laws of Nature And that this Liberty belongs to all Men who are not as yet subject to anothers will so where divers Men have United together into a perfect Common-wealth it is necessary for the same liberty or faculty of appointing resolving all means necessary for their own safety should now exist in the Supreme Power as in a common Subject which Liberty is accompanied with the Highest Authority or a right of prescribing those means to the Subjects and of compelling them to their Duty therefore in every Commonwealth properly so called there must be an absolute Power at least habitual though not always exercised for it must be answerable to Superior and to have a right of Judging of its own affairs by its own Judgment and will Therefore that absolute Power implies nothing in its self unjust or intolerable is easie to be perceived from the ends of instituting of Commonwealths For indeed we never constituted them that neglecting Natural right things should be done out of a wicked and perverse Lust or Humour but that the security and safety of singulars may be more conveniently looked after by the joint assistances of many So that they might more safely and with more leasure live after the Laws of Nature and Virtue Yet when this Supreme Authority is considered as it is conferred upon one Man or one Council consisting of all or few as in its proper subject it is not always free and absolute but in some places limited by certain laws indeed in Democracies the difference between absolute and limited Power seems not so easie to be observed for although in every Democracy there must needs continue certain Institutions received by use or establisht by written Laws at what time and by whom the People should be Assembled and Publick business proposed and Executed since without such things a Common-wealth cannot be understood yet since that Council consists of all the Citizens in whom the Soveraign Authority resides nothing can hinder but those Constitutions may be altered or abrogated at any time by the same People that made them But in Aristocracies and Monarchies where there are some who command and others who obey and so a Right arises to these from the Promises and Commands of the other There does plainly appear a difference between an absolute and limited power he is therefore absolute who exercises his Authority according to his own discretion and not according to the Rule of any certain or perpetual Constitutions but as the present condition of affairs require and who does so provide for the safety of the Common-wealth as its occasions direct him from whence the word absolute is so far from implying any thing unjust or hateful in it self or intolerable for Free-men that it should rather lay upon such absolute Princes necessity of greater care and circumspection if they will acquit themselves of their Duty and discharge their Consciences as they ought then on those to whom a certain form of dispatching publick Affairs is prescribed So Dio Chrysost Orati 62. describes an absolute Prince thus a good Prince covets nothing because he supposes himself to possess all things he abstains from pleasures since he may enjoy whatsoever he pleases He is juster than others as he who is to be an example of Justice to others He takes pleasure in business because he labours of his own accord He loves the Laws because he does not fear them and of all these he rightly perswades himself