Prison by Privilege of Parliament upon the Judges Answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the King's Name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Cases There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the Advice and Counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS Apud Selden 21 Edw. 3. fol. 60. Apud Selden Selden Selden Selden Selden Selden Cambden Cotton Stow. Selden Selden Selden Selden Chanc. Egerton * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. lib. 3. c. 8. Lib. 2. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. c. 11. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 8. c. 12. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 31.5 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 5. (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 4. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 4. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. c. c. 13. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 7. Lib. 3. c. 9. Lib. 3. c. 11. Lib. 6. c. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 7. c. 9. Lib. 2. c. 8. (a) L. 3. c. 7. (b) L. 4. c. 10. (c) L. 3. c. 6. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Cive cap. 1. sect 10. 94. 87. Lib. 4. c. 8. Lib. 1. c. 4. P. 3. P. 13. P. 6. P. 1. P. 12. P. 5. P. 40. P. 12. P. 14. P. 16. P. 15. P. 17. P. 5. P. 2. P. 6. P. 12. P. 7. P. 54. P. 7. P. 1. P. 12. P. 13. P. 8. P. 16. P. 17. P. 14. P. 17. P. 49. P. 17. P. 18. P. 38. P. 18. P. 25. P. 56. P. 25. P. 26. P. 38. P. 26. P. 28. Arist. Pol. l. 3. c. 16. Cap. 1. Lib. 1. Cap. 2. Cap. 2. Cap. 2. Cap. 2. Lib. 2. Qu. 4. Cap. 12. Lib. 5. Sect. 18. Cap. 1. Sect. 4. Cap. 4. Sect. 1. Lib. 2. Cap. 5. Cap. 7. Cap. 7. Sect. 1. Cap. 7. Sect. 2. Chap. 7. Sect. 1. Chap. 7. Sect. 1. Lib. 2. Cap. 2. Cap. 7. Sect. 2. Ainsworth upon Deut. 18. 1 King 20.16 Gen. 27.29 Arist Pol. Lib. 1. c. 2.
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
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Vse is as in the conge d' eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told the Queen whereupon Sir Henry Knivet said It should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Woolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly He voucheth an Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Judicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of the Councel may mean the Kings Privy Councel or his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooveful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary
that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
could not continue Or doth it make the Act of our Fore-fathers in abrogating the natural Law of Community by introducing that of Propriety to be a sin of a high presumption The prime Duties of the Second Table are conversant about the Right of Propriety but if Propriety be brought in by a Humane Law as Grotius teacheth then the Moral Law depends upon the Will of man There could be no Law against Adultery or Theft if Women and all things were common Mr. Selden saith That the Law of Nature or of God nec vetuit nec jubebat sed permisit utrumque tam nempe rerum communionem quà m privatum Dominium And yet for Propriety which he terms primaeva rerum Dominia he teacheth That Adam received it from God à Numine acceperat And for Community he saith We meet with evident footsteps of the Community of things in that donation of God by which Noah and his three Sons are made Domini pro indiviso rerum omnium Thus he makes the private Dominion of Adam as well as the common Dominion of Noah and his Sons to be both by the Will of God Nor doth he shew how Noah or his Sons or their Posterity had any Authority to alter the Law of Community which was given them by God In distributing Territories Mr. Selden saith the consent as it were of Mankind passing their promise which should also bind their Posterity did intervene so that men departed from their common Right of Communion of those things which were so distributed to particular Lords or Masters This Distribution by Consent of Mankind we must take upon Credit for there is not the least proof offered for it out of Antiquity How the Consent of Mankind could bind Posterity when all things were common is a Point not so evident where Children take nothing by Gift or by Descent from their Parents but have an equal and common Interest with them there is no reason in such cases that the Acts of the Fathers should bind the Sons I find no cause why Mr. Selden should call Community a pristine Right since he makes it but to begin in Noah and to end in Noah's Children or Grand children at the most for he confesseth the Earth à Noachidis seculis aliquot post diluvium esse divisam That ancient Tradition which by Mr. Selden's acknowledgment hath obtained Reputation every where seems most reasonable in that he tells us That Noah himself as Lord of all was Author of the Distribution of the World and of private Dominion and that by the appointment of an Oracle from God he did confirm this Distribution by his last Will and Testament which at his Death he left in the hands of his eldest Son Sem and also warned all his Sons that none of them should invade any of their Brothers Dominions or injure one another because from thence Discord and Civil War would necessarily follow Many Conclusions in Grotius his Book de Jure Belli Pacis are built upon the foundation of these two Principles 1. The first is That Communis rerum usus naturalis fuit 2. The second is That Dominium quale nunc in usu est voluntas humana introduxit Upon these two Propositions of natural Community and voluntary Propriety depend divers dangerous and seditious Conclusions which are dispersed in several places In the fourth Chapter of the first Book the Title of which Chapter is Of the War of Subjects against Superiours Grotius handleth the Question Whether the Law of not resisting Superiours do bind us in most grievous and most certain danger And his Determination is That this Law of not resisting Superiours seems to depend upon the Will of those men who at first joyned themselves in a Civil Society from whom the Right of Government doth come to them that govern if those had been at first asked if their Will were to impose this burthen upon all that they should chuse rather to dye than in any case by Arms to repel the Force of Superiours I know not whether they would answer That it was their Will unless perhaps with this addition if Resistance cannot be made but with the great disturbance of the Common-wealth and destruction of many Innocents Here we have his Resolution that in great and certain danger men may resist their Governours if it may be without disturbance of the Common-wealth if you would know who should be Judge of the greatness and certainty of the Danger or how we may know it Grotius hath not one word of it so that for ought appears to the contrary his mind may be that every private man may be Judge of the Danger for other Judge he appoints none it had been a foul Fault in so desperate a piece of Service as the resisting of Superiours to have concealed the lawful Means by which we may judge of the Greatness or Certainty of publick Danger before we lift up our hands against Authority considering how prone most of us are to censure and mistake those things for great and certain Dangers which in truth many times are no dangers at all or at the most but very small ones and so flatter our selves that by resisting our Superiours we may do our Country laudable Service without Disturbance of the Common-wealth since the Effects of Sedition cannot be certainly judged of but by the Events only Grotius proceeds to answer an Objection against this Doctrine of resisting Superiours If saith he any man shall say that this rigid Doctrine of dying rather than resisting any Injuries of Superiours is no humane but a Divine Law It is to be noted that men at first not by any Precept of God but of their own Accord led by Experience of the Infirmities of separated Families against Violence did meet together in Civil Society from whence Civil Power took beginning which therefore St. Peter calls an humane Ordinance although elsewhere it be called a divine Ordinance because God approveth the wholesom Institutions of men God in approving a humane Law is to be thought to approve it as humane and in a humane manner And again in another place he goeth further and teacheth us That if the Question happen to be concerning the primitive Will of the People it will not be amiss for the People that now are and which are accounted the same with them that were long ago to express their meaning in this matter which is to be followed unless it certainly appear that the People long ago willed otherwise lib. 2. cap. 2. For fuller Explication of his Judgment about resisting Superiors he concludes thus The greater the thing is which is to be preserved the greater is the Equity which reacheth forth an Exception against the words of the Law yet I dare not saith Grotius without Difference condemn either simple men or a lesser part of the People who in the last Refuge of Necessity do so use this Equity as that in the mean time they do not forsake the Respect of the
it to one kind that is to Monarchy or the Government of one alone and the determination of it to the individual person and line of Adam are all three Ordinances of God Neither Eve nor her Children could either limit Adams power or joyn others with him in the Government and what was given unto Adam was given in his person to his posterity This paternal Power continued Monarchical to the Flood and after the Flood to the confusion of Babel when Kingdoms were first erected planted or scattered over the face of the World we find Gen. 10.11 it was done by Colonies of whole Families over which the prime Fathers had supreme power and were Kings who were all the Sons or Grand-children of Noah from whom they derived a fatherly and regal Power over their Families Now if this supreme Power was setled and founded by God himself in the Fatherhood how is it possible for the people to have any right or title to alter and dispose of it otherwise What Commission can they shew that gives them power either of Limitation or Mixture It was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the acts of his will and as in him so in all others that have supreme Power as appears by the judgment and speech of the people to Joshuah when he was supreme Governour these are their words to him All that thou commandest us we will do whosoever he be that doth rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death We may not say that these were evil Councellours or flattering Courtiers of Joshuah or that he himself was a Tyrant for having such arbitrary power Our Author and all those who affirm that power is conveyed to persons by publick consent are forced to confess that it is the fatherly power that first enables a people to make such conveyance so that admitting as they hold that our Ancestors did at first convey power yet the reason why we now living do submit to such power is for that our Forefathers every one for himself his family and posterity had a power of resigning up themselves and us to a supreme Power As the Scripture teacheth us That supreme Power was originally in the Fatherhood without any limitation so likewise Reason doth evince it that if God ordained that Supremacy should be that then Supremacy must of necessity be unlimited for the power that limits must be above that power which is limited if it be limited it cannot be supreme so that if our Author will grant supreme Power to be the Ordinance of God the supreme Power will prove it self to be unlimited by the same Ordinance because a supreme limited Power is a contradiction The Monarchical Power of Adam the Father of all flesh being by a general binding Ordinance setled by God in him and his posterity by right of fatherhood the form of Monarchy must be preferred above other forms except the like Ordinance for other forms can be shewed neither may men according to their relations to the form they live under to their affections and judgments in divers respects prefer or compare any other form with Monarchy The point that most perplexeth our Author and many others is that if Monarchy be allowed to be the Ordinance of God an absurdity would follow that we should uncharitably condemn all the Communities which have not that form for violation of Gods Ordinance and pronounce those other Powers unlawful If those who live under a Monarchy can justifie the form they live under to be Gods Ordinance they are not bound to forbear their own justification because others cannot do the like for the form they live under let others look to the defence of their own Government if it cannot be proved or shewed that any other form of Government had ever any lawful beginning but was brought in or erected by Rebellion must therefore the lawful and just obedience to Monarchy be denied to be the Ordinance of God To proceed with our Author in the 3 d. page he saith The Higher Power is Gods Ordinance That it resideth in One or more in such or such a way is from humane designment God by no word binds any people to this or that form till they by their own act bind themselves Because the power and consent of the People in Government is the burden of the whole Book and our Author expects it should be admitted as a magisterial postulation without any other proof than a naked supposition and since others also maintain that originally Power was or now is in the People and that the first Kings were chosen by the People they may not be offended if they be asked in what sence they understand the word People because this as many other words hath different acceptions being sometimes taken in a larger otherwhile in a stricter sence Literally and in the largest sence the word People signifies the whole multitude of mankind but figuratively and synecdochically it notes many times the major part of a multitude or sometimes the better or the richer or the wiser or some other part and oftentimes a very small part of the People if there be no other apparent opposite party hath the name of the People by presumption If they understand that the entire multitude or whole People have originally by nature Power to chuse a King they must remember that by their own principles and rules by nature all mankind in the World makes but one People who they suppose to be born alike to an equal freedom from Subjection and where such freedom is there all things must of necessity be common and therefore without a joynt consent of the whole People of the World no one thing can be made proper to any one man but it will be an injury and an usurpation upon the Common right of all others From whence it follows that natural freedom being once granted there cannot be any one man chosen a King without the universal consent of all the People of the world at one instant nemine contradicente Nay if it be true that nature hath made all men free though all mankind should concur in one vote yet it cannot seem reasonable that they should have power to alter the law of nature for if no man have power to take away his own life without the guilt of being a murtherer of himself how can any people confer such a power as they have not themselves upon any one man without being accessories to their own deaths and every particular man become guilty of being felo de se If this general signification of the word People be disavowed and men will suppose that the People of particular Regions or Countries have power and freedom to chuse unto themselves Kings then let them but observe the consequence Since nature hath not distinguished the habitable World into Kingdoms nor determined what part of a People shall