part of Henry the Third's Reign in whose dayes 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 dayes 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 Counsellours 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-Baâ—…ons 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 Kingdome chose such Lords of Court-Barons to â—…e present in Parliament The Lords of Manors â—…ame not at first by Election of the People as Sir Edw. Coke treating of the institution of Court-Baâ—…ons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alâ—…red it appeareth that the first Kings of this Realm â—…ad 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 Realâ—… enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath Coke's Instituteâ—… First part Fol. 58. Here by the way I cannot but note that if thâ—… first Kings had all the Lands of England in Demean 〈◊〉 Sir Edward Coke saith they had And if the firâ—… Kings were chosen by the People as many thinâ—… they were then surely our Forefathers were a verâ—… bountiful if not a prodigal People to give all thâ—… Lands of the whole Kingdom to their Kings witâ—… Liberty for them to keep what they pleased and tâ—… give the Remainder to their Subjects clogg'd anâ—… cumbred with a Condition to defend the Realmâ—… This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude thâ—… former Point Sir Edward Coke's Opinion is thâ—… in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Commâ—… Councel doth displease many and is denied aâ—…tending to the Disparagement of the Commons anâ—… to the Discredit and Confutation of their Opinioâ—… who teach that the Commons are assigned Councelloâ—… to the King by the People therefore I will call in Mâ—… Pryn to help us with his Testimony He in his Booâ—… of Treachery and Disloyalty c. proves that before thâ—… Conquest by the Laws of Edward the Confessoâ—… cap. 17. The King by his Oaths was to do Iustice 〈◊〉 the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament aâ—… above the King and ought to bridle him when he exorâ—…tates from the Laws He further tells us the Peers anâ—… Prelates have oft translated the Crown from the right Heâ—… 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 Kingdome 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 Bishops and Peers promising the amendment of the Lawâ—… according to all their Pleasures and Liking was by thâ—… all proclaimed King 10. Lewis of France Crowned King by the Barons in stead 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 thâ—… 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 hiâ—… 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 Masteâ—… Pryn will be very well content if we will admiâ—… 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 iâ—… the main Point that Master Pryn by the Title of hiâ—… Book is to make good and to prove As to the second Point which is That untill 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 untill 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 had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of His Privy Councel alone And
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX 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 Understanding 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 Aslembly 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 Counsel 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 Usage 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 dayes 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 onely 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 Chancellour 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 Councel 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 Councel 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 first be transmitted hither under the Great Seal of that Kingdom and having received Allowane 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 Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after â—…he establishment of the Parliament by colour of it that â—…hey had so great Daring If any desire to know the â—…ause why Hen. 1. called the People to Parliament â—…t was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the â—…etter to assure himself against Robert his elder Brother â—…e flattered the People with those Charters yea King John â—…hat confirmed them had the like Respect for Arthur Dâ—… Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original â—…rom Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had â—…rst an obscure Birth by Usurpation and was fostered and â—…ewed to the World by Rebellion in brief the King calâ—…ed the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that â—…he Commons were not called unto Parliament until Hen. 3. dayes this appears by divers of the Precâ—…dents formerly cited to prove that the Barons weâ—… the Common Councel For though Hen. 1. called aâ—… the People of the Land to His Coronation and agaiâ—… in the 15. or 18. year of his Reign yet alwayes hâ—… did not so neither many of those Kings that diâ—… succeed him as appeareth before Secondly for calling the Commons by Writ find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words lâ—… ancient times after the King had summoned His Parliament innumerable multitudes of People did maâ—… their Access thereunto pretending that Privilege â—… Right to belong to them But King Hen. 3. haviâ—… Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that noâ—… might come to His Parliament but those who were specâ—…ally summoned To this purpose it is observed bâ—… Master Selden that the first Writs we find accompaniâ—… with other Circumstances of a Summons to Parliamenâ—… as well for the Commons as Lords is in the 49 â—… Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these Words King Hen. 3. out of a great Multitude which wâ—… seditious and turbulent called the very best by Writ â—… Summons to Parliament for he after many Troubles aâ—… Vexations between the King himself and Simon â—… Monefort with other Barons and after appeased dâ—…decree and ordain That all those Earls and Barons uâ—…to whom the King himself vouchsafed to direct Hâ—… Writs of Summons should come to his Parliament anâ—… no others but that which he began a little before hâ—… Death Edward 1. and his Successours constantly oâ—…served and continued The said prudent King Edwarâ—… summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Understanding Also Master Cambden in another place saith that in the time of Edw. 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Whereas Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Worthy Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath Ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10. H. 6. Our Lord the King ordained that Knightâ—… be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his Commandment hath ordained that if any Assault or Fray be made on them that comâ—… to Parliament or other Councel of the King the Parâ—… which made any such Affray or Assault shall pay doublâ—… Damages and make Fine and Ransom at the Kings Wilâ—… 23. H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8. Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That the said Statutes should be duely kept 2. That the Sheriffs shall deliver Precepts to Maiors and Bayliffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners aâ—… Bailiffs for concealing of Felonies shall make grievoâ—… Fines at the Kings pleasure Chap. 13. Ordains That such as be found culpablâ—… of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoâ—…er that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he thâ—… shall take Reward for deliverance of such shall be at thâ—… Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall maâ—… Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they takâ—… shall be Grievously punished at the Kings pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to Treat upon Debates between Us and certain Great Men it was accorded that in our next Parliament provision shall be made by Us and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from Religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Underwoods and Bushes in High-wayes murder be done the Lord shall make Fine at the Kings pleasure 28 Edw. 1. If a Gold-smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by Ransome at the Kings pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the gift of any Subsidy to which the King answers He would conferr with the Lords and do what should be best according to their Adâ—…ice and the last day of Parliament He gave this Anâ—…er That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of then Petitions or knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any wayes change the Good Customs and Usages Made and Used of Antient Times 5 Hen. 4. c. 6. Whereas one Savage did Beat and maime one Richard Chedder Esquire Menial Servanâ—… to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTESTAS PRINCIPIS NON EST INCLUSA LEGIBUS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. we read of a Restitution iâ—… Bloud and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regalty to grant or deny such of their Petitions as pleaseth Himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King oâ—… Sovereign Lord calling to His remembrance the duty of Allegiance of His Subjects of this His Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in His Wars for the Defence of Him and the Land against every Rebellion Power and Might reared against Him and with Him to enter and abide in Service in Battel if Case so require and that for the same Service what fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by his Commandement within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same Year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against His Rebels and Enemies for the Subduing and Repressing of them and their malitious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Commonwealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen and that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He â—…ished not the making of many Laws since the more we make the less Liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edw. Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Io. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of the Commons which being received by the King part He received part He put out and part he ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been alwayes acknowledged for Laws and Statutes We have amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14 Hen. 3. which is nothing but a Letter of the King to Gerard Son of
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
That there is no Form of Government but Monarchy only 2 That there is no Monarchy but Paternal 3. That there is no Paternal Monarchy but Absolute or Arbitrary 4. That there is no such thing as an Aristocratie or Democratie 5. That there is no such Form of Government as a Tyranny 6. That the People are not born Free by Nature DIRECTIONS FOR Obedience to Government IN Dangerous or Doubtful Times ALL those who so eagerly strive for an original Power to be in the People do with one Consent acknowledge that originally the Supreme Power was in the Fatherhood and that the first Kings were Fathers of Families This is not only evident and affirmed by Aristotle but yielded unto by Grotius Mr. Selden Mr. Hobbs Mr. Ascam and all others of that Party not one excepted that I know of Now for those that confess an original Subjection in Children to be governed by their Parents to dream of an original Freedom in Mankind is to contradict themselves and to make Subjects to be Free and Kings to be Limited to imagine such Pactions and Contracts between Kings and People as cannot be proved ever to have been made or can ever be described or fancied how it is possible for such Contracts ever to have been is a boldness to be wondred at Mr. Selden confesseth that Adam by donation from God was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children And by Donation or Assignation or some kind of Concession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of Private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City It is confessed that in the Infancy of the World the Paternal Government was Monarchical but when the World was replenished with multitude of people then the Paternal Government ceased and was lost and an Elective kind of Government by the People was brought into the World To this it may be answered That the paternal Power cannot be lost it may either be transferr'd or usurped but never lost or ceaseth God who is the giver of Power may transferr it from the Father to some other he gave to Saul a Fatherly power over his Father Kish God also hath given to the Father a Right or Liberty to alien his Power over his Children to any other whence we find the Sale and gift of Children to have been much in Use in the beginning of the World when men had their Servants for a possession and an Inheritance as well as other Goods whereupon we find the power of Castrating and making Eunuchs much in Use in old times As the power of the Father may be lawfully transferr'd or aliened so it may be unjustly usurped And in Usurpation the Title of an Usurper is before and better than the Title of any other than of him that had a former Right for he hath a possession by the permissive Will of God which permission how long it may endure no man ordinarily knows Every man is to preserve his own Life for the Service of God and of his King or Father and is so far to obey an Usurper as may tend not only to the preservation of his King and Father but sometimes even to the preservation of the Usurper himself when probably he may thereby be reserved to the Correction or Mercy of his true Superiour though by Humane Laws a long Prescription may take away Right yet Divine Right never dies nor can be lost or taken away Every man that is born is so far from being Free-born that by his very Birth he becomes a Subject to him that begets him under which Subjection he is always to live unless by immediate Appointment from God or by the Grant or Death of his Father he become possessed of that power to which he was subject The Right of Fatherly Government was ordained by God for the preservation of Mankind if it be usurped the Usurper may be so far obeyed as may tend to the preservation of the Subjects who may thereby be enabled to perform their Duty to their true and right Sovereign when time shall serve in such Cases to obey an Usurper is properly to obey the first and right Governour who must be presumed to desire the Safety of his Subjects the Command of an Usurper is not to be obeyed in any thing tending to the destruction of the Person of the Governour whose Being in the first place is to be looked after It hath been said that there have been so many Usurpations by Conquest in all Kingdoms that all Kings are Usurpers or the Heirs or Successors of Usurpers and therefore any Usurper if he can but get the possession of a Kingdom hath as good a Title as any other Answer The first Usurper hath the best Title being as was said in possession by the Permission of God and where an Usurper hath continued so long that the knowledge of the right Heir be lost by all the Subjects in such a case an Usurper in possession is to be taken and reputed by such Subjects for the true Heir and is to be obeyed by them as their Father As no man hath an infallible Certitude but onely a moral Knowledge which is no other than a probable perswasion grounded upon a peaceable possession which is a warrant for subjection to Parents and Governours for we may not say because Children have no infallible or necessary certainty who are their true Parents that therefore they need not obey because they are uncertain it is sufficient and as much as Humane Nature is capable of for Children to rely upon a credible perswasion for otherwise the Commandement of Honour thy Father would be a vain Commandment and not possible to be observed By Humane positive Laws a Possession time out of mind takes away or barrs a former Right to avoid a general Mischief of bringing all Right into a disputation not decideable by proof and consequently to the overthrow of all Civil Government in Grants Gifts and Contracts between man and man But in Grants and Gifts that have their original from God or Nature as the Power of the Father hath no Inferiour power of man can limit nor make any Law of Prescription against them upon this ground is built that common Maxim that Nullum tempus occurrit regi No time bars a King All Power on Earth is either derived or usurped from the Fatherly power there being no other original to be found of any Power whatsoever for if there should be granted two sorts of power without any subordination of one to the other they would be in perpetual strife which should be Supreme for two Supremes cannot agree if the Fatherly power be supreme then the power of the People must be subordinate and depend on it if the power of the People be
the People may choose what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. c. 3. Also that the People choosing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiours is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No Doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us he rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the Cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition that in some Places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion that People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right and you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this that the People may grant away their Power without retaining any part But what is this to what the People have done for though the People may give away their Power without Reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his Favour the Point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged that in all Presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any Benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings Part who are in Possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the People the Labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an Instant with any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius that although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implyed that it was upon condition to be well-governed and that the Non-performance of that implyed Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said that the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected that he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be that by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say that it is by any necessity of the Law of Nature or by any positive Law of God he teacheth that non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth onely approve it ut humanum and humano modo He tells us further that Populus potest eligere qualem vult gubernationis forâ—…am ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they â—…ay make temporary Kings as Dictators and Protectors jus quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his â—…i potestatem revocabiliter dederunt ac proinde non idem est
is void being made by any Owner whatsoever against the â—…ules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the Power of a Parent dâ—…th so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith the Son is in all things Free and of his own Authority always that Duâ—… remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are alwayes bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws onely which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the Permission of the transcendent Fatherly power of the Supreme Prince Children may be dispensed with or privileged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth that the Power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith that the Power over the Son or Daughter to dissolve Vows was not perpetual but did indure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three wayes Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Usufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdome That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title onely make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth onely put the Conquerour in possession of his old Right but not create a New The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdome which gives a Form to the Kingdom but a Continuation of the Old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right onely for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are Free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he have a Title it is an unjust War that takes the Kingdom from him If he have no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule that where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the judgment of Grotius But if it be admitted that he that attempts to conquer have a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Ubi Iudicia deficiunt incipit Bellum Lib. 2. c. 1. And thus upon the matter I cannot find in Grotius's Book de Iure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est qua se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2. c. 5. If Subjection be the Gift of the People how can Supreme Power pleno Iure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a
major part or indeed any considerable part of the whole people of any nation ever assembled to any such purpose For except by some secret miraculous instinct they should all meet at one time and place what one man or company of men less than the whole people hath power to appoint either time or place of elections where all be alike free by nature and without a lawful summons it is most unjust to bind those that be absent The whole people cannot summon it self one man is sick another is lame a third is aged and a fourth is under age of discretion all these at some time or other or at some place or other might be able to meet if they might chuse their own time and place as men naturally free should In Assemblies that are by humane politique constitution the superior power that ordains such assemblies can regulate and confine them both for time place persons and other circumstances but where there is an equality by nature there can be no superior power there every Infant at the hour it is born in hath a like interest with the greatest and wisest man in the world Mankind is like the sea ever ebbing or flowing every minute one is born another dies those that are the people this minute are not the people the next minute in every instant and point of time there is a variation no one time can be indifferent for all mankind to assemble it cannot but be mischievous always at the least to all Infants and others under age of discretion not to speak of women especially Virgins who by birth have as much natural freedome as any other and therefore ought not to lose their liberty without their own consent But in part of salve this it will be said that Infants and Children may be concluded by the votes of their Parents This remedy may cure some part of the mischief but it destroys the whole cause and at last stumbles upon the true original of government For if it be allowed that the acts of Parents bind the Children then farewel the doctrine of the natural freedome of mankind where subjection of Children to Parents is natural there can be no natural freedome If any reply that not all Children shall be bound by their Parents consent but onely those that are under age It must be considered that in nature there is no nonage if a man be not born free she doth not assign him any other time when he shall attain his freedome or if she did then Children attaining that age should be discharged of their Parents contract So that in conclusion if it be imagined that the people were ever but once free from subjection by nature it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever without apparent wrong to a multitude of people It is further observable that ordinarily Children and Servants are far a greater number than Parents and Masters and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject unto is most unnatural and in effect to give the Children the government over their Parents To all this it may be opposed What need dispute how a people can chuse a King since there be multitude of examples that Kings have been and are now adays chosen by their people The answer is 1. The question is not of the fact but of the right whether it have been done by a natural or by an usurped right 2. Many Kings are and have bin chosen by some small part of a people but by the the whole or major part of a Kingdom not any at all Most have been elected by the Nobility Great men and Princes of the blood as in Poland Denmarke and in Sweden not by any collective or representative body of any Nation sometimes a sactious or seditious City or a mutinous Army hath set up a King but none of all those could ever prove they had right or just title either by nature or any otherwise for such elections We may resolve upon these two propositions 1. That the people have no power or right of themselves to chuse Kings 2. If they had any such right it is not possible for them any way lawfully to exercise it You will say There must necessarily be a right in somebody to elect in case a King die without an Heir I answer No King can die without an Heir as long as there is any one man living in the world It may be the Heir may be unknown to the people but that is no fault in nature but the negligence or ignorance of those whom it concerns But if a King could die without an Heir yet the Kingly power in that case shall not escheat to the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1. 2. where Solomon speaks to All Israel that is to the Captains the Iudges and to every Governour the CHIEF OF THE FATHERS and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel 1 King 8. 1. and the 2 Chr. 5. 2. If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their people or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the others subject unto him every man by nature is a King or a Subject the obedience which all Subjects yeild to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon Gods providence who only hath right to
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke
I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmarke withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of life and death over their Subjects without appeal and the King to give no Office without consent of the Councel There is a Chancelour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Councel and from this Councel to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the people or community may assume its own power if neither of these Kingdomes have most Countries have not nay none have The people or Community in these three Realms are as absolute vassals as any in the world the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Councel in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdome such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the people are so far from liberty that he saith Divers particular Lords exact not onely Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Iudgments The End AN ADVERTISEMENT TO THE JURY-MEN of ENGLAND TOUCHING WITCHES ADVERTISEMENT To the JURY-MEN OF ENGLAND THE late Executon of Witches at the Summer Assises in Kent occasioned this brief Exercitation which addresses it self to such as have not deliberately thought upon the great difficulty in discovering what or who a Witch is To have nothing but the publick Faith of the present Age is none of the best Evidence unless the universality of elder times do concur with these Doctrines which ignorance in the times of darkness brought forth and credulity in these days of light hath continued Such as shall not be pleased with this Tractate are left to their liberty to consider whether all those Proofs and Presumptions number'd up by Mr. Perkins for the Conviction of a Witch be not all Condemned or confessed by himself to be unsufficient or uncertain He brings no less than eighteen signs or proofs whereby a Witch may be discovered which are too many to be all true his seven first he himself confesseth to be insufficient for Conviction of a Witch His eight next proofs which he saith men in place have used he acknowledgeth to be false or insufficient Thus of his Eighteen proofs which made a great shew fifteen of them are cast off by himself there remains then his sixteenth which is the Confession of a Witch yet presently he is forced to yield That a bare Confession is not a sufficient proof and so he cometh to his seventeenth proof which is two credible witnesses and he here grants that the League between the Devil and the Witch is closely made and the practices of Witches be very secret that hardly a man can be brought which upon his own knowledge can aver such things Therefore at last when all other proofs fail he is forced to fly to his eighteenth proof and tells us that yet there is a way to come to the knowledge of a Witch which is that Satan useth all means to discover a Witch which how it can be well done except the Devil be bound over to give in evidence against the Witch cannot be understood And as Mr. Perkins weakens and discredits all his own proofs so he doth the like for all those of King James who as I remember hath but Three Arguments for the discovery of a Witch First the secret Mark of a Witch of which Mr. Perkins saith it hath no power by Gods Ordinance Secondly The discovery by a fellow Witch this Mr. Perkins by no means will allow to be a good proof Thirdly the swimming of a Witch who is to be flung cross ways into the water that is as Wierus interprets it when the Thumb of the right Hand is bound to the great Toe of the left Foot and the Thumb of the left Hand to the great Toe of the right Foot Against this Tryal by water together with a disability in a Witch to shed Tears which King James mentions Delrio and Mr. Perkins both argue for it seems they both write after King James who put forth his Book of Daemonologie in his youth being in Scotland about his age of thirty years It concerns the people of this Nation to be more diligently instructed in the Doctrine of Witch-craft than those of Forraign Countries because here they are tyed to a stricter or exacter Rule in giving their sentence than others are for all of them must agree in their Verdict which in a case of extream difficulty is very dangerous and it is a sad thing for men to be reduced to that extremity that they must hazard their Consciences or their Lives A DIFFERENCE BETWEEN An English and Hebrew WITCH THE Point in Question is briefly this Whether such a Witch as is Condemned by the Laws and Statutes of this Land be one and the same with the Witch forbidden by the Law of Moses The Witch Condemned by our Statute-law is 1 Iacob Cap. 12. One that shall use practice or exercise any Invocation or Conjuration of any evil or wicked spirit or consult covenant with entertain or employ feed or reward any evil or wicked spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the
greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of Life as that because they can find no other wayes to defend themselves or because they are so pressed with Poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War onely which reduceth a People to such terms of Extremity as compells them to an absolute Abrenuntiation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Sovereignty and not the free Gift of the People who cannot otherwise choose but give away that Power which they cannot keep Thus upon the Reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Iust War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Iustice Iustitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith that all Kings are not made by the People which may be sufficiently understood by the Examples of a Father of a Family receiving Strangers under the Law of Obedience In both these Passages we have a close and curt acknowledgment that a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle that Dominion came in by the Will of the People and so consequently to overthrow his Usufructuary Kings of whom I am next to speak Grotius saith that the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And that men of their own accord came together into Civil Society from whence springs Civil Power and the People may choose what Form of Government they please Upon these Suppositions he concludes that Kings elected by the People have but an Usufructuary Right that is a Right to take the Profit or Fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Usufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Usufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibiles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Usufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the Part and Duty of a King to govern and he hath a Right so to do and to that End Supreme Power is given unto him the taking of the Profit or making Use of the Patrimony of the Crown is but as a means onely to enable him to perform that great work of Government Besides Grotius will not onely have an elected King but also his lawful Successors to have but an Usufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no Power to alienate it for he supposeth the primary Will of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delata sunt concedo non esse praesumendum eam fuisse Populi voluntatem ut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People for he saith the Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Unum quiddam and in it self indivisible yet he saith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to be that the Government or the Governed may be divided an Example he gives of the Roman Empire which was divided into the East and West but whereas he saith fieri potest c. It may be the People choosing a King may reserve some Actions to themselves and in others