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
in the Assembly of Estates To which the answer is obvious that though it is true the Monarchs passing of Laws whether in the great Council or in his privy Council be but a matter of form if the Legislative power remain wholly in himself yet since even the forms and Circumstances in doing things are such essential things without which business cannot be done If therefore the people made it part of their original Contract with their Prince at first that he should make no laws but what should be of their proposing and drawing up and that he might refuse if he pleased the whole but should not alter any part of it This though in its self a matter of form yet being at first so agreed is indeed an original and fundamental constitution of the Government Therefore the Author is as much mistaken in his Divinity as his Law when Patriarcha P. 97. Resolves the question in the affirmative Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws That the Subject ought to break the laws if his King command him Where as as the Author hath put it nothing is more contrary to Law and Reason for so it would be no sin for Souldiers or others to give and take away mens Goods by force or turn them out of their houses if they could produce the Kings Commission for it and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal for though it was forged yet the forgery being known but to very few it was in respect of those who acted by vertue thereof all one as if it had been true and according to this Authors Divinity Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants since the King by his Commission commanding a man to serve him in the Wars he may not examine whether the War be just or unjust but must obey since he hath no authority to judge of the causes of War which if spoken of such Wars as a King hath a right to make is true but of all warin general nothing is more false as appears by the instance before given nor are the examples the Author there brings at all satisfactory as that not only in humane Laws but also in Divine a thing may be commanded contrary to law and yet obedience to such commands is necessary the sanctifying the Sabbath is a Divine law yet if a Master command his Servant not to go to Church upon a Sabbath day the best Divines teach us that the Servant must obey this Command though it may be sinful and unlawful in the Master because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding Where if the Author suppose as I do not that the Sunday which he improperly calls the Sabbath cannot be sanctified without going to Church or that going to Church on that day is an indispensible duty the Master commanding the contrary ought no more to be obeyed than if he should command his Servant to rob or steal for him but if going to Church be a thing indifferent or dispensible at some times then the Author puts a Fallacy upon his Readers arguing from the non-performance of a thing which is doubtful or only necessary secundum quid in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful Since it is sinful for any Subjects to obey the King 's private or personal Commands in things unlawful and contrary to known positive laws The laws only seting the bounds of Property in all Commonwealths so that though it be no sin in Turky or Muscovy for an Officer to go and setch any mans head by vertue of the Grand Seigniors Commission without any trial or accusation I suppose any man that valued his life would say it were murder for any person to do the same by the Kings bare Commission in England and yet there is nothing but the Laws and Customs of each Government that creates the difference Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law since there are some Laws which the King hath power to dispence with and others which he hath not and others which he may dispence with but yet only for the publick good in cases of extreme necessity But to affirm as the Author does without any qualification or restriction that it is a sin to disobey the Kings personal Commands in all cases however issued out favours of Mr. Hobs Divinity as well as Law nor does the Author himself when he hath thought better on 't Patriark P. 99. assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws and to defend the peoples rights as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right So it is true the King hath a power to pardon all Felonies and Manslaughters and perhaps Murders too yet supposing this power should be exerted but for one year towards all Malefactors whatsoever any man may easily imagin what such a Prerogative would produce So that the publick good of the Kingdom ought to be the rule of all such Commands and where that fails the right of commanding ceases Ib. 99. As for the instance of the Court of Chancery it is not a breach of the Kings Preogative but part of the Common Law of this Kingdom so no man that understands any thing of Law or Reason will affirm that it is a Court of that exorbitant power that it is limited by no rules or bounds either of Common or Statute Law or of the Laws of aequum and bonum or that every thing that a Chancellour who is keeper of the Kings Conscience decrees must be well and truly decreed since this were to set up an absolute Tyrany But I shall now proceed to examine the rest of the reasons the Author gives either in this Treatise or his Patriarcha against the possibility of a limited Monarchy He finds fault with Mr. H. P. 281. ' For asserting that a Monarch can have any limitation ab Externo and that the sole means of Soveraignty is consent and fundamental contract which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection upon which our Author inquires thus if the sole means of a limited Monarchy be the consent and fundamental contract of a Nation how is it that he saith a Monarch may be limited by after condescent is an after condescent all one with a fundamentnl contract or with an original and radical constitution why yet he tells us it is a secundary original constitution A secundary original that is a second first
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
likewise in Denmark the Author himself cannot deny but that Kingdom is limited for he could not before the late war with Sweden either make War or Peace raise mony or make laws without the consent of his Senate who were a constant representative of all the Nobility But for the Election of a new King or for the making of new Laws the whole body of the Nobility and Clergy were to be present and consent As for Scotland the Government of it hath alwayes so much resembled England that it being now the same Prince I shall not say more of it but that it hath alwayes been a limited if not a mixt Government In Sweden the Kings power is much the same only the Commons have representatives in the assembly of Estates which they had not in Poland and Denmark But in Denmark and Sweden the Kings until of Late that they became Hereditary were never received or owned as Lawful until they were Crown'd and had Sworn to observe and maintaine the Laws of the Kingdom and priviledges of the Nobility and People But the Authour thinks he hath gotten a great advantage because he finds that in Poland and Denmark the Commons have no representatives in the Assembly of Estates and that therefore in some limited Monarchies the whole Community in its underived Majesty do not ever convene to Justice Which signifie little for these that are now the Nobility may be Heirs to those that once had the whole propriety of the Country in their hands when these Kingdoms were erected and so tho the body of the People encreased yet the ancient Nobility never admitted them into a share of the Government As in Venice without doubt all the Ancient Planters of those Islands had Votes in the Government and it was then popular though it is now restrained to the ancient Families or those new ones they now admit and is much such an other cavil as that in England Before the reduceing the Nobiles Minores to two Knights of the Shire the Commons had no Votes in the great Council or Parliament which opinion see confuted in Mr. Petyt's Treatise of the ancient Rights of the Commons of England and in the learned Treatise call'd Jani Anglorum facies nova And this appears more plainly in Denmark where every Lord of a Mannor or Territory is a Nobleman and hath a Vote in the Diet or Assembly of the Estates or else it might have begun as in Poland which is but an Association of so many petty Princes for mutual defence under an Elective Head who when they entred into this Confederac reserved to themselves the power they had before over their Subjects and Vassals which how absolute that was any man may find that understands the Sclavonians Genius in so much that from the absolute Subjection of that People to their Lords we have the Word SLAVE to this day But the Author himself confesses the Kingdom of Poland to be limited but it is only by the Nobility who are for all this forced to please the King and to second his will to avoid discord which is very true and is requisite in all limited Governments that the King Nobility and People should agree and as it is their duty to comply with his desires as much as may be without giving up their liberties lives and fortunes absolutely to his disposal So it is his to answer his Peoples desires in all things which are for their benefit Not that I praise the Form of Government in Poland since of all those that own the name of King I am so far of the Authors mind as to think it most liable to Civil Dissentions But before I dismiss this Subject I must take notice of a mistake in the last Page of this Authors present Treatise which is that the People or Community in all these three Realms are as absolute Vassals as any in the world which is not true unless it be affirmed of the Vilains Or Vassals of the Nobility which is granted are more absolute Vilains than ours were in England but as for the free born See Pontanus Hist Dan. soterus de Stat. Suecia or ordinary Free-holders in Denmark and Sweden and for the Merchants and Artificers dwelling in Townes and Cities they have all their distinct priviledges and are free both their Persons and Fortunes and cannot be oppressed by the Nobility nor taxed but by the Dyet or Assembly of Estates but perhaps the Authors Friends may now cavil and say that these are no Monarchies at all because a Monarchy is the Government of one alone in which neither Nobility nor People have any share to which I shall say no more then that these People call their Governments Monarchies as participating more of that then any other forme and they are owned to be true Kings all the world over and if the Gentlemen of the Authours opinion will quarrel about words my business is not to dispute from Grammar but reason so that these Kingdoms may be called Monarchies as they are in Europe but if these Gentlemen think it not fit to call them so let them consider how much all this Authors discourse will concerne our Government in England or elsewhere in Europe Having now taken a short view of the Ancient Governments of most of the Moderne Kingdoms that have been erected since the ruin of the Roman Empire we will conclude with the Government of our own Countrey and inquire whether ever it were an absolute despotick Monarchy or no. As for the Original of the Saxon Government it is evident out of Tacitus and other Authours that the Ancient Germans from whom our Saxon Ancestors descended and of which Nation they were a part never knew what belonged to an absolute despotick power in their Princes And after the Saxons coming in and the Heptarchy having been erected in this Island the Ancient form of Government was not altered as I shall prove by and by therefore though the Monkish Writers of those times have been short and obscure in that which is most material in a History viz. the form of their Government and manner of succession to the Crown amongst them stuffing up their books with unnecessary stories of miracles and foundations of Churches and Abbeys Yet so much is to be pickt out of them that the Government of the West-Saxons which was that on which our Monarchy is grafted was not despotical but limited by Laws that the King could not seise mens lands or goods without Process that he could not make Laws without the consent of his Wittena Gemote or Great Counsel Nor take away mens lives without a Legal trial by their Peers See Mr. Petyt 's Preface to his foremention'd Treatise and that this Government hath never been altered but confirmed by their Successors both of the Danish and Norman Race as appears by their Charters and confirmations and many confirmations of Magna Charta and other Statutes as there is no man that is but moderately vers'd in the