that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT As Described Viz. 1 st Upon Aristotles Politiques 2 d. Mr. Hobbs's Laviathan 3 d. Mr. Milton against Salmatius 4 th Hugo Grotius de Jure Bello 5 th Mr. Hunton's Treatise of Monarchy or the Nature of a limited or mixed Monarchy By the Learned Sir R. Filmer Barronet To which is added the Power of Kings With directions for Obedience to Government in Dangerous and Doubtful Times LONDON Printed for R. R. C. and are to be Sold by Thomas Axe at the Blew-Ball in Ducâ—-Lane 1696. Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1. The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Vnderstanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a Touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Council the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Vsage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty days before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and only such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellor tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Council there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Council to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore-rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall be first transmitted hither under the Great Seal of that Kingdom and having received Allowance and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Vsage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader Rob. Filmer A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER Knight I. The Free-holders Grand Inquest touching our Soveraign Lord the King and his Parliament To which are added Observations upon Forms of Government Together with Directions for Obedience
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel's description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oaths of Kings 8. Of the Benefit of the King's Prerogative over Laws 9. the King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavoured to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the People do subject the Exercise of it to Positive Laws But in this also they err for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the Profit of every Man in particular and of all together in general is not always one and the same and that the Publick is to be preferred before the Private And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the Mischiefs in Monarchy or else a prophetical Description only of the future ill Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy wherein it is evidently shewed that the Scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient for by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this Point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both no Remedy in the Text against Tyrants but in crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckoned by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and Inferiour Lords To serve the King in his Wars and to till his Ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for
Estates But to the contrary His Majesty thereby to be much the Greater and the more Honourable seeing all His People to acknowledge Him for their Soveraign We see the principal Point of Soveraign Majesty and Absolute Power to consist principally in giving Laws unto the Subjects without their Consent It behoveth that the Soveraign Prince should have the Laws in his Power to Change and Amend them according as Occasion shall require In a Monarchy every one in particular must swear to the Observation of the Laws and their Allegiance to One Soveraign Monarch who next unto God of whom he holds his Scepter and Power is bound to No Man For an Oath carrieth always with it Reverence unto whom and in whose Name it is made as still given to a Superiour and therefore the Vassal gives such Oath unto his Lord but receives None from Him again though they be mutually Bound the One of them to the Other Trajan swore to keep the Laws although he under the name of a Soveraign Prince was exempted but never any of the Emperours before him so sware Therefore Pliny the Younger in a Panegyrical Oration speaking of the Oath of Trajan gives out A great Novelty saith he and never before heard of He sweareth by whom we swear Of these two things the one must come to pass to wit the Prince that swears to keep the Laws of his Country must either not have the Soveraignty or else become a Perjur'd Man if he should Abrogate but one Law contrary to his Oath whereas it is not only Profitable that a Prince should sometimes Abrogate some such Laws but also Necessary for him to Alter or Correct them as the infinite Variety of Places Times and Persons shall require Or if we shall say the Prince to be still a Soveraign and yet nevertheless with such conditions that he can make no Law without the Advice of his Councel or People He must also be Dispensed with by his Subjects for the Oath which he hath made for the Observation of the Laws and the Subjects again which are obliged to the Laws have also need to be Dispensed withal by their Prince for fear they should be Perjur'd So shall it come to pass that the Majesty of the Commonweal enclining now to this side now to that side sometimes the Prince sometimes the People bearing sway shall have no Certainty to rest upon which are notable Absurdities and altogether incompatible with the Majesty of Absolute Soveraignty and contrary both to Law and Reason And yet we see many men that think they see more in the matter than others will maintain it to be most Necessary that Princes should be bound by Oath to keep the Laws and Customs of their Countreys In which doing they weaken and overthrow all the Rights of Soveraign Majesty which ought to be most Sacred and Holy and confound the Soveraignty of One Soveraign Monarch with an Aristocracy or Democracy Publication or Approbation of Laws in the Assembly of the Estates or Parliament is with us of great importance for the keeping of the Laws not that the Prince cannot of himself make a Law without the Consent of the Estates or People for even all his Declarations of War Treaties of Peace Valuations of the Coin Charters to enable Towns to send Burgesses to Parliament and his Writ of Summons to both Houses to Assemble are Laws though made without the Consent of the Estates or People but it is a Courteous part to do it by the good liking of the Senate What if a Prince by Law forbid to Kill or Steal is he not Bound to obey his own Laws I say that this Law is not His but the Law of God whereunto all Princes are more straitly bound than their Subjects God taketh a stricter account of Princes than others as Solomon a King hath said whereto agreeth Marcus Aurelius saying The Magistrates are Judges over private men Princes judge the Magistrates and God the Princes It is not only a Law of Nature but also oftentimes repeated among the Laws of God that we should be Obedient unto the Laws of such Princes as it hath pleased God to set to Rule and Reign over us if their Laws be not directly Repugnant unto the Laws of God whereunto all Princes are as well bound as their Subjects For as the Vassal oweth his Oath of Fidelity unto his Lord towards and against all men except his Soveraign Prince So the Subject oweth his Obedience to his Soveraign Prince towards and against all the Majesty of God excepted who is the Absolute Soveraign of All the Princes in the World To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined For Soveraignty being of it self Indivisible How can it at one and the same time be Divided betwixt One Prince the Nobility and the People in common The first Mark of Soveraign Majesty is to be of Power to give Laws and to Command over them unto the Subjects And who should those Subjects be that should yield their Obedience to the Law if they should have also Power to make the Laws Who should He be that could Give the Law being he himself constrain'd to Receive it of them unto whom he himself Gave it So that of necessity we must conclude that as no One in particular hath the Power to make the Law in such a State that there the State must needs be Popular Never any Commonwealth hath been made of an Aristocracy and Popular Estate much less of all the Three Estates of a Commonwealth Such States wherein the Right of Soveraignty is Divided are not rightly to be called Commonweals but rather the Corruption of Commonweals as Herodotus hath most briefly but truly written Commonweals which change their State the Soveraign Right and Power of them being Divided find no rest from Civil Wars If the Prince be an Absolute Soveraign as are the true Monarchs of France of Spain of England Scotland Turkey Muscovy Tartary Persia Aethiopia India and almost of all the Kingdoms of Africk and Asia where the Kings themselves have the Soveraignty without all doubt or question not Divided with their Subjects In this case it is not lawful for any One of the Subjects in particular or all of them in general to attempt any thing either by way of Fact or of Justice against the Honour Life or Dignity of the Soveraign albeit he had committed all the Wickedness Impiety and Cruelty that could be spoke For as to proceed against Him by way of Justice the Subject hath not such Jurisdiction over his Soveraign Prince of whom dependeth all Power to Command and who may not only Revoke all the Power of his Magistrates but even in whose Presence the Power of all Magistrates Corporations Estates and Communities cease Now if it be not lawful for the Subject by the way of Justice to proceed against a King How should it then be