called The Assembly of the Wise termed in Latine Conventum Magnatum or Praesentia Regis Procerumque Prelaterumque collectorum The Meeting of the Nobility or the Presence of the King Prelates and Peers Assembled or in General Magnum Concilium or Commune Concilium and many of our Kings in elder times made use of such great Assemblies for to Consult of important Affaires of State all which Meetings in a General sense may be termed Parliaments Great are the Advantages which both the King and People may receive by a well-ordered Parliament there is nothing more expresseth the Majesty and Supreme Power of a King than such an Assembly wherein all his People acknowledge him for Soveraign Lord and make all their Addresses to him by humble Petition and Supplication and by their Consent and Approbation do strengthen all the Laws which the King at their Request and by their Advice and Ministry shall ordain Thus they facilitate the Government of the King by making the Laws unquestionable either to the Subordinate Magistrates or refractory Multitude The benefit which accrews to the Subject by Parliaments is That by their Prayers and Petitions Kings are drawn many times to redress their Just grievances and are overcome by their importunity to grant many things which otherwise they would not yield unto for the Voice of a Multitude is easilier heard Many Vexations of the People are without the knowledge of the King who in Parliament seeth and heareth his People himself whereas at other times he commonly useth the Eyes and Ears of other men Against the Antiquity of Parliaments we need not dispute since the more ancient they be the more they make for the Honour of Monarchy yet there be certain Circumstances touching the Forms of Parliaments which are fit to be considered First we are to rememember that until about the time of the Conquest there could be no Parliaments assembled of the General States of the whole Kingdom of England because till those days we cannot learn it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws When Iulius Caesar landed he found 4 Kings in Kent and the British Names of Dammonii Durotriges Belgae Attrebatii Trinobantes Iceni Silures and the rest are plentiful Testimonies of the several Kingdoms of Brittains when the Romans left us The Saxons divided us into 7 Kingdoms when these Saxons were united all into a Monarchy they had always the Danes their Companions or their Masters in the Empire till Edward the Confessors Days since whose time the Kingdom of England hath continued United as now it doth But for a Thousand years before we cannot find it was entirely setled during the Time of any one Kings Reign As under the Mercian Law The West Saxons were confined to the Saxon Laws Essex Norfolk Suffolk and some other Places were vexed with Danish Laws The Northumbrians also had their Laws apart And until Edward the Confessors Reign who was next but one before the Conquerour the Laws of the Kingdom were so several and Uncertain that he was forced to Cull a few of the most indifferent and best of them which were from him called St. Edwards Laws Yet some say that Eadgar made those Laws and that the Confessor did but restore and mend them Alfred also gathered out of Mulmutius laws such as he translated into the Saxon Tongue Thus during the time of the Saxons the Laws were so variable that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom 13 A second Point considerable is whether in such Parliaments as was in the Saxon's times the Nobility and Clergy only were of those Assemblies or whether the Commons were also called some are of Opinion that though none of the Saxon Laws do mention the Commons yet it may be gathered by the word Wisemen the Commons are intended to be of those Assemblies and they bring as they conceive probable arguments to prove it from the Antiquity of some Burroughs that do yet send Burgesses and from the Proscription of those in Antient Demesne not to send Burgesses to Parliament If it be true that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns yet it may be doubted whether other Kingdoms had the same usage but sure it is that during the Heptarchy the People could not Elect any Knights of the Shire because England was not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Brittain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was Secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any Natural Liberty of the People for all those Liberties that are claimed in Parliament are the liberties of Grace from the King and not the Liberties of Nature to the People for if the liberty were Natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are Claimed
CAROLUS Secundus Dei Gratia Angliae Scotiae Franciae et Hiberniae Rex Fidei Defensor etc. Patriarcha OR THE Natural Power OF KINGS By the Learned Sir ROBERT FILMER Baronet Lucan Lib. 3. Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Principe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed and are to be sold by Walter Davis Book-binder in Amen-Corner near Pater-noster-row 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Filmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so Exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the loss of my Preferment in the Church of Westminster which gave me the opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the infelicity than I am at this present in reference to that satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or Chose Governours 1 ARistotle examined about the Fredom of the People and justisied 2 Suarez disputes against the Regality of Adam 3 Families diversly defined by Aristotle Bodin and others 4 Suarez contradicting Bellarmine 5 Of Election of Kings 6 By the major part of the People 7 By Proxie and by Silent Acceptation 8 No example in Scripture of the Peoples Choosing their King Mr. Hookers judgement therein 9 God governed alwayes by Monarchy 10 Bellarmine and Aristotles judgement of Monarchy 11 Imperfections of the Roman Democratie 12 Rome began her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 VVhether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Historians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judge nor correct their King 18 No Tyrants in England since the Conquest CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1 REgal Authority not subject to Positive Laws Kings were before Laws The Kings of Judah and Israel not tyed to Laws 2 Of Samuel's Description of a King 3 The Power ascribed to Kings in the New Testament 4 VVhether 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 Kings Prerogative over Laws 9 The King the Author the Interpreter and Corrector of the Common Laws 10 The King Iudge in all Causes both before the Conquest and since 11 The King and his Councel anciently determined Causes in the Star-Chamber 12 Of Parliaments 13 VVhen the People were first called to Parliaments 14 The Liberty of Parliaments not from Nature but from the Grace of Princes 15 The King alone makes Laws in Parliament 16 He Governs Both Houses by himselfe 17 Or by His Councel 18 Or by His Iudges ERRATA Page 4. line 3. for Calume read Calvin CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of Mankind New Plausible and Dangerous 2 The Question stated out of Bellarmine Some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 and from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and their Agreement SInce the time that School-Divinity began to flourish there hath been a common Opinion maintained as well by Divines as by divers other Learned Men which affirms Mankind is naturally endowed and born with Freedom from all Subjection and at liberty to choose what Form of Government it please And that the Power which any one Man hath over others was at first bestowed according to the discretion of the Multitude This Tenent was first hatched in the Schools and hath been fostered by all succeeding Papists for good Divinity The Divines also of the Reformed Churches have entertained it and the Common People every where tenderly embrace it as being most plausible to Flesh and Blood for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude who magnifie Liberty as if the height of Humane Felicity were only to be found in it never remembring That the desire of Liberty was the first Cause of the Fall of Adam But howsoever this Vulgar Opinion hath
of the People or by any other way whatsoever or whether some Few or a Multitude govern the Commonwealth yet still the Authority that is in any One or in Many or in All these is the only Right and Natural Authority of a Supreme Father There is and always shall be continued to the End of the World a Natural Right of a Supreme Father over every Multitude although by the secret Will of God many at first do most unjustly obtain the Exercise of it To confirm this Natural Right of Regal Power we find in the Decalogue That the Law which enjoyns Obedience to Kings is delivered in the terms of Honour thy Father as if all power were originally in the Father If Obedience to Parents be immediately due by a Natural Law and Subjection to Princes but by the Mediation of an Humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate If we compare the Natural Rights of a Father with those of a King we find them all one without any difference at all but only in the Latitude or Extent of them as the Father over one Family so the King as Father over many Families extends his care to preserve feed cloth instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Privileges so that all the Duties of a King are summed up in an Universal Fatherly Care of his People CHAP. II. It is unnatural for the People to Govern or Chose Governours 1. ARistotle examined about the Freedom of the People and justified 2. Suarez disputing against the Regality of Adam 3. Families diversly defined by Aristotle Bodin and others 4. Suarez contradicting Bellarmine 5. Of Election of Kings 6. By the Major part of the People 7. By Proxy and by silent Acceptation 8. No Example in Scripture of the Peoples chosing their King Mr. Hooker's Iudgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Iudgment of Monarchy 11. Imperfections of the Roman Democratie 12. Rome began her Empire under Kings and perfected under Emperours In danger the People of Rome always fled to Monarchy 13. Whether Democraties were invented to bridle Tyrants or rather that they came in by Stealth 14. Democraties vilified by their own Historians 15. Popular Government more bloody than Tyranny 16. Of a mixed Government of the King and People 17. The People may not judge or correct their King 18. No Tyrants in England since the Conquest 1. BY conferring these Proofs and Reasons drawn from the Authority of the Scripture it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude to chose what Rulers they please Had the Patriarchs their Power given them by their own Children Bellarmine does not say it but the Contrary If then the Fatherhood enjoyed this Authority for so many Ages by the Law of Nature when was it lost or when forfeited or how is it devolved to the Liberty of the Multitude Because the Scripture is not favourable to the Liberty of the People therefore many fly to Natural Reason and to the Authority of Aristotle I must crave Liberty to examine or explain the Opinion of this great Philosopher but briefly I find this Sentence in the Third of his Politiques Cap. 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It seems to some not to be natural for one man to be Lord of all the Citizens since a City consists of Equals D. Lambine in his Latine Interpretation of this Text hath omitted the Translation of this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this means he maketh that to be the Opinion of Aristotle which Aristotle alleadgeth to be the Opinion but of some This Negligence or Wilful Escape of Lambine in not translating a word so Material hath been an occasion to deceive many who looking no farther than this Latine Translation have concluded and made the World now of late believe that Aristotle here maintains a Natural Equality of Men and not only our English Translator of Aristotle's Politiques is in this place misled by following Lambine but even the Learned Monsieur Duvall in his Synopsis bears them company and yet this Version of Lambine's is esteemed the best and Printed at Paris with Causabon's corrected Greek Copy though in the rendring of this place the Elder Translations have been more faithful and he that shall compare the Greek Text with the Latine shall find that Causabon had just cause in his Preface to Aristotle's Works to complain that the best Translations of Aristotle did need Correction To prove that in these words which seem to favour the Equality of Mankind Aristotle doth not speak according to his own Judgment but recites only the Opinion of others we find him clearly deliver his own Opinion that the Power of Government did originally arise from the Right of Fatherhood which cannot possibly consist with that Natural Equality which Men dream of for in the First of his Politiques he agrees exactly with the Scripture and lays this Foundation of Government The first Society saith he made of Many Houses is a Village which seems most naturally to be a Colony of Families or foster Brethren of Children and Childrens Children And therefore at the beginning Cities were under the Government of Kings for the eldest in every house is King And so for Kindred-sake it is in Colonies And in the fourth of his Politiques cap. 2 He gives the Title of the first and Divinest sort of Government to the Institution of Kings by Defining Tyranny to be a Digression from the First and Divinest Whosoever weighs advisedly these passages will find little hope of Natural Reason in Aristotle to prove the Natural Liberty of the Multitude Also before him the Divine Plato concludes a Commonweal to be nothing else but a large Family I know for this Position Aristotle quarrels with his Master but most unjustly for therein he contradicts his own Principles for they both agree to fetch the Original of Civil Government from the prime Government No doubt but Moses's History of the Creation guided these two Philosophers in finding out of this Lineal Subjection deduced from the Laws of the First Parents according to that Rule of St. Chrysostom God made all Mankind of One Man that he might teach the World to be Governed by a King and not by a Multitude The Ignorance of the Creation occasioned several Errors amongst the Heathen Philosophers Polybius though otherwise a most profound Philosopher and Judicious Historian yet here he stumbles for in searching out the Original of Civil Societies he conceited That Multitudes of Men after a Deluge a Famine or a Pestilence met together like Herds of Cattel without any
But the vanity of this Fancy is too evident it is a meer Impossibility or Contradiction for if a King but once admit the People to be his Companions he leaves to be a King and the State becomes a Democracy at least he is but a Titular and no Real King that hath not the Soveraignty to Himself for the having of this alone and nothing but this makes a King to be a King As for that Shew of Popularity which is found in such Kingdoms as have General Assemblies for Consultation about making Publick Laws It must be remembred that such Meetings do not Share or divide the Soveraignty with the Prince but do only deliberate and advise their Supreme Head who still reserves the Absolute power in himself for if in such Assemblies the King the Nobility and People have equal Shares in the Soveraignty then the King hath but one Voice the Nobility likewise one and the People one and then any two of these Voices should have Power to over-rule the third thus the Nobility and Commons together should have Power to make a Law to bind the King which was never yet seen in any Kingdom but if it could the State must needs be Popular and not Regal 17 If it be Unnatural for the Multitude to chuse their Governours or to Govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the Multitude may Correct or Depose their Prince if need be Surely the Unnaturalness and Injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his people either Originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof for either yet by no Law of any Nation can a Contract be thought broken except that first a Lawful Tryal be had by the Ordinary Judge of the Breakers thereof or else every Man may be both Party and Judge in his own case which is absur'd once to be thought for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Government that God hath laid upon them to judge and punish him by whom they should be Judged and punished themselves Aristotle can tell us what Judges the Multitude are in their own case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Judgment of the Multitude in Disposing of the Soveraignty may be seen in the Roman History where we may find many good Emperours Murthered by the People and many bad Elected by them Nero Heliogabalus Otho Vitellius and such other Monsters of Nature were the Minions of the Multitude and set up by them Pertinax Alexander Severus Gordianus Gallus Emilianus Quintilius Aurelianus Tacitus Probus and Numerianus all of them good Emperours in the Judgment of all Historians yet Murthered by the Multitude 18 Whereas many out of an imaginary Fear pretend the power of the people to be necessary for the repressing of the Insolencies of Tyrants wherein they propound a Remedy far worse than the Disease neither is the Disease indeed so frequent as they would have us think Let us be jugded by the History even of our own Nation We have enjoyed a Succession of Kings from the Conquest now for above 600 years a time far longer than ever yet any Popular State could continue we reckon to the Number of twenty six of these Princes since the Norman Race and yet not one of these is taxed by our Historians for Tyrannical Government It is true two of these Kings have been Deposed by the people and barbarously Murthered but neither of them for Tyranny For as a learned Historian of our Age saith Edward the Second and Richard the Second were not insupportable either in their Nature or Rule and yet the people more upon Wantonness than for any Want did take an unbridled Course against them Edward the second by many of our Historians is reported to be of a Good and Vertuous Nature and not Unlearned they impute his defects rather to Fortune than either to Council or Carriage of his Afsairs the Deposition of him was a violent Fury led by a Wife both Cruel and unchast and can with no better Countenance of Right be justifyed than may his lamentable both Indignities and Death it self Likewise the Deposition of King Richard II was a tempestuous Rage neither Led or Restrained by any Rules of Reason or of State Examin his Actions without a distempered Judgment and you will not Condemne 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 Baron's 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 Oathes 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 Iudge in all Causes both before the Conquest and since 11. The King and his
Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiteing with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Iudge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples Crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their Living under a Tyrant No man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but Gods Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatfoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apologie for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and All that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by Petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger Let none presume to Search into his Deeds much less to Oppose them When the Iews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the people nor advised them to stay their payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar. Nor must it here be said that Christ taught this Lesson only to the conquered Iews for in this he gave direction for all Nations who are bound as much in Obedience to their Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems S. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carryed a Sword Wilt thou not be afraid of the Power that is the Ruler that carryeth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And S. Paul concludes for this cause pay you tribute also for they are Gods Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to Gods Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoineth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to maniest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a Speaking Law he cannot mean that Kings themselves are an human Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are Human Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Gramatical Construction Him the Relative must be referred to the next Antecedent which is King Besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane
Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's meaning is in short obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen whereby they Subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the Positive Laws of any Nation Since the Compulsory Power of Laws is that which properly makes Laws to be Laws by binding men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the advice and direction which the Kings Council gives the King which no man says is a Law to the King 4 There want not those who Believe that the first invention of Laws was to Bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in Order Popular Estates could not Subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and though many of their Laws were very Severe and Bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves So the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the people 5. The reason why Laws have been also made by Kings was this when Kings were either busyed with Wars or distracted with Publick Cares so that every private man could not have accesse to their persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered unto him in the Tables of his Laws that so there might be no need to resort to the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The people have the Law as a Familiar Admonisher and Interpreter of the King's pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King Iames teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm That although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Iudgments indifferent and upright Iustice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Iudgment are Upright and those not literally always but according to Equity of his Conscience join'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for truth that Kings do swear to observe
the 12th Chapter of the Statute of Glocester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings Hand at Westminster requiring that they should do and Execute all and every thing contained in it although the same do not accord with the Statute of Glocester in all things The Statute of Rutland is the Kings Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Iudges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestique Terms of The King Commands or The King Wills or Our Lord the King hath established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meer Proclamations as the Provisions of Merton made by the King at an Assembly of the Prelates and Nobility for the Coronation of the King and his Queen Eleanor which begins Provisum est in Curia Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimae Praesentationis which was continued and allowed for Law until Tit. West 2. an 13. Ed. 1. cap. 5. which provides the contrary in express words This Provision begins Provisum fuit coram Dom. Rege Archiepiscopis Episcopis Baronibus quod c. It seems Originally the difference was not great between a Proclamation and a Statute this latter the King made by Common Council of the Kingdom In the former he had but the advice only of his great Council of the Peers or of his Privy Council only For that the King had a great Council besides his Parliament appears by a Record of 5. Hen. 4. about an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the King will Assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. Cap. 8. in these Words Forasmuch as the King by the advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Regal Power given him by God may do many things in such Cases should not be driven to extend the Liberties and Supremity of his Regal Power and Dignity by willfulness of froward Subjects It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a Second Parliament and the Statute made Proclamations of as great validity as if they had been made in Parliament This Law continued until the Government of the State came to be under a Protector during the Minority of Edward the Sixth and in his first year it was Repealed I find also that a Parliament in the 11th year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damned and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Commission Court affirms that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the 3d Rich. 2. the three Henries 4. 5. 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earles and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the Kings Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edward 1. made at His First Parliament General by His Council and by the assent of Bishops Abbots Priors Earles Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the Kings Council for as much as all the King's Council as well Iustices as others did agree that they should be put in Writing and observed The Statute of Acton Burnell saith The King for Himself and by His Council hath Ordained and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the Kings Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the Kings Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and Ordained by the King himself and all his Council The Statute made at York 9. Ed. 3. saith Whereas the Knights Citizens and Burgesses desired