rate his power now encreases but that he may be so he threaten to cut their Banks and let in the Sea to drown them and their Country if they will not yeild it up to him may they not if they find they cannot resist him submit themselves to him and make the best terms they can for themselves and are they not then obliged by the Authors own Principles to continue his Subjects and yet here is no actual War or inundation but threats only to force them to this submission So that the Authors Supposition is false that no case can happen but an actual War only which can reduce a People to such terms of extremity as to compell them to an absolute abnunciation of all Soveraignity and so likewise is this consequence also which he assumes from thence then war which causeth that necessity is the prime means of extorting such Soveraignity and not the free gift of the People who cannot otherwise chuse but give away that Power which they cannot keep for they might either leave their Country or bury themselves in it But it seems the Author had forgot his Logick or else he would have remembred to distinguish between Causa sine qua non and Causa efficiens a cause which does not properly give being to a thing and yet without which it could not have been produced Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner yet the true Cause of his becoming a lawful Servant to his taker does not proceed from his conquering him but from his coming to Terms with him that he shall be dismist of his Fetters or Imprisonment upon Condition he will serve faithfully and not run away and all Moralists consider those actions they call mixt as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones though they commenced from some kind of force since in this case the Merchant might if he pleased keep his goods if he would venture his life So in many cases may a Conquered People if they have never neither by themselves or their representatives owned the Conquerer But as much as the Author quarrells at the word usufructuary Right in Grotius as too base to express the Right of Kings and as derogatory to the dignity of Supreme Majesty yet the the French are not so scruplous but in the absolutest Monarchy of Europe plainly declare that their King hath but an usufructuary right to his Kingdom and the Territories belonging thereunto or that he can any way charge them with his debts or alienate or dispose of them without the consent of the States of France See Mezeray in the reign of this King 1527. and was so solâ—mnly declared by that great Assemby des notables called by K. Francis the First to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid their sense was that Burgundy which by those Articles was to be delivered up was an inseparable Member of the Crown of which he was but the usufructuary and so could not dispose of the one any more than of the other nor was this any new opinion but as old as St. Lewis who being desired by the Emperour Frederic III. to restore the King of England his just Rights To which the said King replyed whose words I will faithfully translate as they are in Matthew Paris p. 765. Anno Dom. 1249. By the holy Cross with which I am signed I would willingly do it if my Counsel i. e. the Estates would permit it because I love the King of England as my Cosen but it were hard at this very instant of my Pilgrimage viz. for the holy land to disturb the whole body of my Kingdom by contradicting the Counsels of my Mother and all my Nobles although the Intercessors are very dear to me neither is this to make a Kingdom all one with a Ferm as the Author words it since in the civil Law it signifies not only one that barely receives the rents or profits but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner though he have not power to sell or give it away Nor I suppose will any French or English Subject unless such bigotted ones as the Author acknowledge any Forraign Prince or other Person can obtain an absolute Dominion over them by Conquest I am sure they were not of that opinion between two hundred and three hundred years agoe when the King of England brought a plausible Title into France and had it backt by almost an entire Conquest of the whole Kingdom and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris and yet after all this the French had so little Conscience as to proclame Charles the Dauphin King of France and to drive the English out of the Country and renounce their allegiance which they had sworn to our Kings Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary P. 69. to bestow Supreme power in succession But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown let us see the consequences of this Doctrine For the Crown must be of England in the nature of an absolute Fee Simple and is consequently chargeable by any act or alienable by the Testament of the King in being So that then King John had Power to make this Kingdom feudatary and tributory to the Pope and so the Pope hath still a good Title to it And since Religion with these Gentlemen diminishes nothing from the right and absoluteness of Monarchy the same King might have made over his Kingdom to the Emperor of Moroco as the Historians of those times relate he would and so the Sarracen Prince might have entred upon the non-performance of the Conditions and have turned out his Vassal and been King here himself which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms let any man consult Matthew Paris and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate Anno 1216. P. 280. that no King could give away his Kingdom without the consent of his Barons who are obliged to defend it and all the Nobility there present began to cry out at once that they would assert this Priviledge till death That no King or Brince could by his sole Will give away his Kingdom or make it tributary by which the Nobles of the Kingdom might become Slaves Nor did the English Nobility think otherwise since this was one of the causes of their taking Arms against King John Matt. Paris 1245. p. 659. 666. and afterwards in his
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
Right ceased before that of the Legatees could begin So that it seems to me at present that the power of bequeathing either the persons of men or goods was but a consequence of an absolute Propriety in things which arises from Compact in a Common-wealth as I shall hereafter prove Therefore out of this State a Will cannot bind the persons of the Children or Servants so bequeathed And for this cause we find Abraham Gen. 24. v. 2 3. binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt because they doubted whether they could oblige them to do it by their Testament But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature but proceeds purely from a continued Custom of the Kingdom or Civil Law thereof else why had not Henry VIII or Edward VI power to limit or bequeath the Crown to whom they pleased as well as William the Conquerour And to look into other Countries what now renders Women uncapable of succeeding to the Crown of France yet capable of inheriting that of England Spain and divers other Kingdoms of Europe but the Customs or particular Constitutions of the Estates of these Kingdoms which no Will or Testament can alter What else hinders the Grand Seignior that he cannot disinherit his eldest Son if he survive him Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. but the Custom of the Ottoman Empire And what is this Custom but as the Author himself acknowledges in the case of England the Commom Law of the Country Freeholders Inquest p. 62. which is said to be Common Custom Thus to protect the Customs which the Vulgar shall chuse is to protect the Common Laws of England So that it was the Will of the People and not the Prince alone that made this a Law for if this Law of the Succession of the Crown depended upon his Will then if he be an absolute Monarch that when sufficiently declared being the onely Law might alter it when he would 〈◊〉 and so he might bequeath the Crown to whom he pleased But every one that understands the present Laws of Descent of the Crown of France or the manner of Succession in the Ottoman Empire knows that i◠the King of France or Grand Seignior as absolute as they are should bequeath their Kingdoms to any other than the right Heir this Will would signifie nothing and no body would obey this Successor of their appointing And if any man think to evade this by saying That the Succession of the Crown is a Fundamental Law of the Government and that a Prince may be Absolute and yet not have a power to alter that as he may every thing else I would ask him who made this a Fundamental Law at first whether the King then in being or the King with the Consent of the People upon the first institution of the Government If the King made it alone since he is supposed to have made it at first for the good of the People of which he is the Judge and is supposed in Law never to die why then is not he as competent a Judge of what is good for the People now as a King that lived a thousand years agone was what was fit for the People then and consequently hath as much Right of altering the Succession for the Peoples benefit as he that established it at first since every Law may be altered by the same Power that made it But if he say it is a Fundamental Law because long custom hath made it so then it is apparent such a Law hath its force from the Consent of the People at first or since Custom being nothing else Or lastly if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution then it can neither be altered without their Consent and so consequently no Princes Testament is good as to that farther than the People or their Representatives give their assent thereunto And the same Law holds in the Father of a Family since this Author will have no difference between him and a King but onely secundum Magis Minus If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament let us return again to that of Descent and see if that will prove a better foundation to build this natural Right of Princes upon For my part I think that it is not onely impossible to know who was Adam's right Heir of his Fatherly Power now after five or six thousand years but might likewise be as uncertain as soon as ever the breath was out of his body For supposing Eve survived him why should not her natural Right of governing the Children which she her self brought forth and which out of Wedlock would have belonged to her revive and take place before any Right of her eldest Son to whom upon this ground she must have become subject if she would continue part of the Family or natural Commonwealth which she could not avoid there being none but her Children or Grandchildren in the world and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth So that for ought I see the Mother of the Family hath the best Right to the Government in the state of Nature after the Husbands death upon the Authors own grounds For if the Commandment of Honour thy Father and thy Mother signifie more than bare Reverence and Respect as appears by the Apostles Exposition of this Commandment Ephes 6. v. 1. Children obey your Parents in the Lord which he makes the same with Honour thy Father and thy Mother then this Obedience which was due to the Father belongs likewise to her when his power ceases But passing over this difficulty and allowing this Fatherly Authority to descend to Adam's next Heir it might have been a great Question who this next Heir was supposing Cain to have been disinherited for the murder of Abel and to have gone away and built a City and set up a Government by himself Yet let us suppose Abel left a Son behind him who survived Adam his Grandfather which he might very well do and yet the Scripture be silent in it since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews and therefore says little of his other Children but by the by I would ask the Author or any man else who was Adam's Heir after his death whether this Son of Abel or Seth whom we will suppose likewise to
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
no more to be said And as for the places out of St. Paul and Peter it not being my designe to write Divinity-Lectures I shall refer the Reader to the learned Commentators onely I shall take notice that his Assertion That these Apostles wrote their Epistles when the name of the Authority and People of Rome was still in being though the Emperours had usurped a Military Power and yet though the Government was for a long time in most things in the Senate and People of Rome yet for all this neither of the two Apostles take notice of any such Popular Government and our Saviour himself divides all between God and Caesar and â—llows nothing to the People All which though but a Negative Argument against Popular Government and â—o not conclusive yet the foundation of it is not true For though in Rome there remained a shadow of the Power in the Senate yet it was onely in such cases as â—he then Emperours committed to their judgment as â—he Kings of France do now make use of the Parliament of Paris onely to ease themselves of divers troublesome Causes or to take off the odium from themselves as in the condemnation of Sejanus and divers other Conspirators against them and yet they reserved the last Appeal to themselves in Cases both Civil and Capital as may be observed in St. Paul's appeal to Caesar and it is certain that the Roman Emperours in those times put men to death as often as they had a mind to it by their own power made what Edicts they pleased and appointed Proconsuls and Governours of Provinces as often as they saw it convenient and had all Money coined with their Image or Superscription and received and disposed of all Tributes publick Taxes And yet this Author doubts whether Tiberius Claudius or Nero were absolute Monarchs when they had all the Prerogatives that a Monarch could have I come now to the Author's Observations on Aristotle's Politicks It will be easie to prove that he makes use of him in all places that make for his Hypothesis but takes no notice of those that make against it a usual course among Writers especially in Politicks or Divinity Nor does he onely do this but likewise oftentimes perverts Aristotle's sence to make it subservient to his own of which I shall produce these instances In his first Quotation p. 3. he renders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for the eldest in every house is King Whereas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not here signifie to be an absolute Monarch but to govern as a Master of a Family or chief Ruler a power faâ— short of that of an absolute Monarch And so Lambinus hath rendered it in his Version So likewise he hath misplaced these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and makes them to come in as a reason of what he says before concerning a perfect Monarchy whereas this sentence precedes the former and there are three or four sentences between them and therefore it cannot serve for a Consequent where it is really an Antecedent Nor is this sentence truely rendered by the Author For a King according to Law makes no kind of Government whereas he should have said No distinct species of Government for so are these last words to be rendered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or else he would make Aristotle contradict himself if after he had spoke so much in other * Vid. 3 Pol. c. 14. Speaking of the ancient Heroical Kingdoms places of a King according to Law he should make it no kind of Government at all So likewise p. 4. he misrenders these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That of all Governments Monarchy is the best and a Popular State the worst Whereas any one but meanly skill'd in Greek knows that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 does not signifie Monarchy but Kingship and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is not a Popular Estate but an Aristocratical Commonwealth and in the same Chapter put in opposition to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I shall not trouble my self to inquire whether Aristotle distinguishes well between an Aristocracy and an Oligarchy or between an Oligarchy and a Democracy or whether he do well to exclude Artificers from any Vote in the Government These I shall leave to be defended by those that are greater admirers of him than my self onely I will see that if I can he have fair play and not that sence put upon him that he never meant And therefore I shall turn over to p. 12. where he quotes another place out of Aristotle's fourth Book cap. 13. That the first Commonwealth among the Grecians after Kingdoms was made of those that waged War From whence he would infer That the Grecians after they left off to be governed by Kings fell to be governed by an Army So that any Nation or Kingdom that is not charged with the keeping of a King must perpetually be at the charge of paying and keeping of an Army Which though it happened true during the corrupt Oligarchy of the Rump which was â—ut an armed Faction contrary to the sense of this Nation yet is not a necessary Consequent of all Commonwealths Neither is it the Author's sence in this place as may appear by what he says before and what â—ollows these words That he meant no such thing a standing Army in constant Pay being a thing unknown among the Greek Commonwealths where every Freeman served in person as a Horseman or on foot according to his ability as any that reads those Histories may easily observe and a Guard of Strangers or a constant standing Army was ever held the Body of Tyranny as it still continues in all absolute Monarâ—hies from France to China But to return to Aristle in the place before cited by the Author where speaking just before of the Government of the Maleans and other Greek Commonwealths he says That their Government consisted not onely of those Footmen that bore Arms but of those that had served in the Army And then follows these words quoted by the Author 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are not well rendered by those that waged War since they should rather be rendered by those that went to the Wars this Force not being to defend them from their own Citizens but Neighbours with whom they were still at Wars for it appears that not onely those had a share in the Government who were actually in Arms but those also that had served in the Army for Aristotle says immediately after That their Strength consisted chiefly at first of Horsemen and that as the Common-wealths increased in the strength and number of them that were of ability or substance to bear Arms the Administration of the Commonwealth was communicated to more From whence it appears that as also at first among the Romans they onely had a Voice in their Councils or Assemblies who were able to maintain themselves in the Wars at their own charge As amongst us none have a
place more which the Author does not quote fairly Anarchy of a limited Monarchy p. 294. where Aristotle reckoning up the several sorts of Monarchies The last says he is the Heroick which flourished in Heroical times to whom the People did * The Greek word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of their own accord willingly obey and they were paternal and †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which confutes the Author's fancy that a King according to Law makes no kind of Government legal And then reckoning up the occasions reasons of their Obedience he concludes thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And these were chosen Kings by the consent of those that were willing Lambinus renders it à voluntariis and left the Kingdom so obtained to their Children Which whole sentence is omitted by the Author because it makes against his Hypothesis and proves that the most ancient Kingdoms began by Election of the People So true is that excellent Simile of the elder Dr. Don's That Sentences of good Authors whilst they remain in their proper place like the hairs of an Horses tail concenter in one root of strength and ornament but pulled out one by one serve only to make Snares And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence where it makes for them they allow it and make use of it but where it is against them it is false or signifies nothing I shall now cursorily look over the rest of this Discourse where p. 23. though it be true what Aristotle says That the People must act as a Monarch and become as one Person before it can govern So after they are so united into one Senate or Council it is no good Argument to say That the whole Multitude does not govern where the major part onely rules because many of the Multitude that are so assembled are so far from having any part in the Government that they themselves are governed against and often contrary to their wills those people to contract it being the major part in one Vote that are perhaps of another opinion in another and so every change of business begets a new major part For though it is true every individual person does not actually agree to every Vote yet implicitly he does since at the first institution of the Government the first Compact was That the agreement of the major part should conclude the whole Assembly and whoever either then would not or now refuses to be so concluded is still in the state of Nature in respect of all the rest and is not to be lookt upon as a Member of that Commonwealth but as an Enemy and a Covenant-breaker I shall not quarrel with the Author if he hold that Monarchy does most conduce to the main ends of Government Religion towards God and Peace towards men since I agree with him that absolute Monarchy if a man could be sure the Monarch would still continue prudent and just were the best sort of Government for mankind Onely I cannot but smile to finde the Author p. 27. so much admire the high respect the great Turk pays the Mufti or chief Bishop as he calls him where by the by I never heard the Turkish Church-Government was Episcopal before yet every printed Relation can tell us that this wonderful Reverence is but a meer piece of Pageantry the Idol being of his own making and whom he again unmakes at his pleasure a sort of Ordination I suppose the Author would not allow to those of an indelible Character It is true indeed what the Author affirms p. 29. That Rome being in any desperate condition was still forced to flie to Monarchy chusing a Dictator with absolute Power Yet this was onely as a General in time of War or some great civil Commotion being very near it where it must be confest that the absolute power of one is best at such times which needed a speedy Remedy And argues no more the Romans good opinion of Monarchy than it does any mans approbation of Martial Law which though perhaps the best that can be used in War it will not therefore follow that it were to be chosen in times of Peace no more than because Brandy may do a man good when he is sick in his stomach therefore he ought to drink it constantly So that as one benefit of the Dictatorship was the help it gave them upon an Extremity so the next happiness they wisht for after that was over was that the Dictator would lay down his Office again And the People of Rome were never more tyrannized over and opprest than when these Dictators held their Power by force contrary to their Institution and longer than there was need of them as may be seen in the Examples of Sylla and Caesar But the Consuls though they had in many things especially in calling the Senate and in commanding the Army a Kingly power yet it was not absolute but was liable to be questioned by the Senate and People as any man that reads the Roman History may observe See the Oration of Valerius in Dionysius Halicarnassaeus lib. 7. upon the difference between the Senate and People I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin but besides his personal faults he was never their lawful King having ascended the Throne by the murder of his father-in-Father-in-Law Servius Tullius and kept it by the power of a standing Army without the due Election of the Senate and People which was contrary to the Institution of that Kingdom which was Elective The Author p. 32. makes a great difficulty to grant the Roman Commonwealth to be Popular It is true it was not so absolutely but was mixt with an Aristocracy in the Government of the Senate and with Regal power in the Authority of the Consuls yet it is plain the supreme Power remained in the Body of the People And though by the unequal division of the Centuries it is true the greater part of the common People were seldom admitted to vote being concluded by the major part of the first 97 Centuries who consisted of the better and richer men yet this inequality begot the Tributa Comitia which with the Author 's good leave was more absolute than the former Coâ—itia Centuriata For Dion Halicarnas lib. 9. relating â—he original of these Tributa Comitia and how they â—iffered from the other says That the latter were transâ—cted in one day without any Auspicia and could make 〈◊〉 Law at once without any precedent Senatus Consulâ—um which the Curiata Comitia could not And â—hough it is true that the power of making War and Peace and creating of Magistrates remained in the Comitia Curiata yet the judging of great and capital Crimes and of altering and making Laws remained â—n the Tributa Comitia as may be observed in the â—anishment of Coriolanus and other punishments by â—hem inflicted and all Appeals were to this Assembly Yet
in the Assembly of Estates To which the answer is obvious that though it is true the Monarchs passing of Laws whether in the great Council or in his privy Council be but a matter of form if the Legislative power remain wholly in himself yet since even the forms and Circumstances in doing things are such essential things without which business cannot be done If therefore the people made it part of their original Contract with their Prince at first that he should make no laws but what should be of their proposing and drawing up and that he might refuse if he pleased the whole but should not alter any part of it This though in its self a matter of form yet being at first so agreed is indeed an original and fundamental constitution of the Government Therefore the Author is as much mistaken in his Divinity as his Law when Patriarcha P. 97. Resolves the question in the affirmative Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws That the Subject ought to break the laws if his King command him Where as as the Author hath put it nothing is more contrary to Law and Reason for so it would be no sin for Souldiers or others to give and take away mens Goods by force or turn them out of their houses if they could produce the Kings Commission for it and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal for though it was forged yet the forgery being known but to very few it was in respect of those who acted by vertue thereof all one as if it had been true and according to this Authors Divinity Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants since the King by his Commission commanding a man to serve him in the Wars he may not examine whether the War be just or unjust but must obey since he hath no authority to judge of the causes of War which if spoken of such Wars as a King hath a right to make is true but of all warin general nothing is more false as appears by the instance before given nor are the examples the Author there brings at all satisfactory as that not only in humane Laws but also in Divine a thing may be commanded contrary to law and yet obedience to such commands is necessary the sanctifying the Sabbath is a Divine law yet if a Master command his Servant not to go to Church upon a Sabbath day the best Divines teach us that the Servant must obey this Command though it may be sinful and unlawful in the Master because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding Where if the Author suppose as I do not that the Sunday which he improperly calls the Sabbath cannot be sanctified without going to Church or that going to Church on that day is an indispensible duty the Master commanding the contrary ought no more to be obeyed than if he should command his Servant to rob or steal for him but if going to Church be a thing indifferent or dispensible at some times then the Author puts a Fallacy upon his Readers arguing from the non-performance of a thing which is doubtful or only necessary secundum quid in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful Since it is sinful for any Subjects to obey the King 's private or personal Commands in things unlawful and contrary to known positive laws The laws only seting the bounds of Property in all Commonwealths so that though it be no sin in Turky or Muscovy for an Officer to go and setch any mans head by vertue of the Grand Seigniors Commission without any trial or accusation I suppose any man that valued his life would say it were murder for any person to do the same by the Kings bare Commission in England and yet there is nothing but the Laws and Customs of each Government that creates the difference Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law since there are some Laws which the King hath power to dispence with and others which he hath not and others which he may dispence with but yet only for the publick good in cases of extreme necessity But to affirm as the Author does without any qualification or restriction that it is a sin to disobey the Kings personal Commands in all cases however issued out favours of Mr. Hobs Divinity as well as Law nor does the Author himself when he hath thought better on 't Patriark P. 99. assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws and to defend the peoples rights as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right So it is true the King hath a power to pardon all Felonies and Manslaughters and perhaps Murders too yet supposing this power should be exerted but for one year towards all Malefactors whatsoever any man may easily imagin what such a Prerogative would produce So that the publick good of the Kingdom ought to be the rule of all such Commands and where that fails the right of commanding ceases Ib. 99. As for the instance of the Court of Chancery it is not a breach of the Kings Preogative but part of the Common Law of this Kingdom so no man that understands any thing of Law or Reason will affirm that it is a Court of that exorbitant power that it is limited by no rules or bounds either of Common or Statute Law or of the Laws of aequum and bonum or that every thing that a Chancellour who is keeper of the Kings Conscience decrees must be well and truly decreed since this were to set up an absolute Tyrany But I shall now proceed to examine the rest of the reasons the Author gives either in this Treatise or his Patriarcha against the possibility of a limited Monarchy He finds fault with Mr. H. P. 281. ' For asserting that a Monarch can have any limitation ab Externo and that the sole means of Soveraignty is consent and fundamental contract which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection upon which our Author inquires thus if the sole means of a limited Monarchy be the consent and fundamental contract of a Nation how is it that he saith a Monarch may be limited by after condescent is an after condescent all one with a fundamentnl contract or with an original and radical constitution why yet he tells us it is a secundary original constitution A secundary original that is a second first
likewise in Denmark the Author himself cannot deny but that Kingdom is limited for he could not before the late war with Sweden either make War or Peace raise mony or make laws without the consent of his Senate who were a constant representative of all the Nobility But for the Election of a new King or for the making of new Laws the whole body of the Nobility and Clergy were to be present and consent As for Scotland the Government of it hath alwayes so much resembled England that it being now the same Prince I shall not say more of it but that it hath alwayes been a limited if not a mixt Government In Sweden the Kings power is much the same only the Commons have representatives in the assembly of Estates which they had not in Poland and Denmark But in Denmark and Sweden the Kings until of Late that they became Hereditary were never received or owned as Lawful until they were Crown'd and had Sworn to observe and maintaine the Laws of the Kingdom and priviledges of the Nobility and People But the Authour thinks he hath gotten a great advantage because he finds that in Poland and Denmark the Commons have no representatives in the Assembly of Estates and that therefore in some limited Monarchies the whole Community in its underived Majesty do not ever convene to Justice Which signifie little for these that are now the Nobility may be Heirs to those that once had the whole propriety of the Country in their hands when these Kingdoms were erected and so tho the body of the People encreased yet the ancient Nobility never admitted them into a share of the Government As in Venice without doubt all the Ancient Planters of those Islands had Votes in the Government and it was then popular though it is now restrained to the ancient Families or those new ones they now admit and is much such an other cavil as that in England Before the reduceing the Nobiles Minores to two Knights of the Shire the Commons had no Votes in the great Council or Parliament which opinion see confuted in Mr. Petyt's Treatise of the ancient Rights of the Commons of England and in the learned Treatise call'd Jani Anglorum facies nova And this appears more plainly in Denmark where every Lord of a Mannor or Territory is a Nobleman and hath a Vote in the Diet or Assembly of the Estates or else it might have begun as in Poland which is but an Association of so many petty Princes for mutual defence under an Elective Head who when they entred into this Confederac reserved to themselves the power they had before over their Subjects and Vassals which how absolute that was any man may find that understands the Sclavonians Genius in so much that from the absolute Subjection of that People to their Lords we have the Word SLAVE to this day But the Author himself confesses the Kingdom of Poland to be limited but it is only by the Nobility who are for all this forced to please the King and to second his will to avoid discord which is very true and is requisite in all limited Governments that the King Nobility and People should agree and as it is their duty to comply with his desires as much as may be without giving up their liberties lives and fortunes absolutely to his disposal So it is his to answer his Peoples desires in all things which are for their benefit Not that I praise the Form of Government in Poland since of all those that own the name of King I am so far of the Authors mind as to think it most liable to Civil Dissentions But before I dismiss this Subject I must take notice of a mistake in the last Page of this Authors present Treatise which is that the People or Community in all these three Realms are as absolute Vassals as any in the world which is not true unless it be affirmed of the Vilains Or Vassals of the Nobility which is granted are more absolute Vilains than ours were in England but as for the free born See Pontanus Hist Dan. soterus de Stat. Suecia or ordinary Free-holders in Denmark and Sweden and for the Merchants and Artificers dwelling in Townes and Cities they have all their distinct priviledges and are free both their Persons and Fortunes and cannot be oppressed by the Nobility nor taxed but by the Dyet or Assembly of Estates but perhaps the Authors Friends may now cavil and say that these are no Monarchies at all because a Monarchy is the Government of one alone in which neither Nobility nor People have any share to which I shall say no more then that these People call their Governments Monarchies as participating more of that then any other forme and they are owned to be true Kings all the world over and if the Gentlemen of the Authours opinion will quarrel about words my business is not to dispute from Grammar but reason so that these Kingdoms may be called Monarchies as they are in Europe but if these Gentlemen think it not fit to call them so let them consider how much all this Authors discourse will concerne our Government in England or elsewhere in Europe Having now taken a short view of the Ancient Governments of most of the Moderne Kingdoms that have been erected since the ruin of the Roman Empire we will conclude with the Government of our own Countrey and inquire whether ever it were an absolute despotick Monarchy or no. As for the Original of the Saxon Government it is evident out of Tacitus and other Authours that the Ancient Germans from whom our Saxon Ancestors descended and of which Nation they were a part never knew what belonged to an absolute despotick power in their Princes And after the Saxons coming in and the Heptarchy having been erected in this Island the Ancient form of Government was not altered as I shall prove by and by therefore though the Monkish Writers of those times have been short and obscure in that which is most material in a History viz. the form of their Government and manner of succession to the Crown amongst them stuffing up their books with unnecessary stories of miracles and foundations of Churches and Abbeys Yet so much is to be pickt out of them that the Government of the West-Saxons which was that on which our Monarchy is grafted was not despotical but limited by Laws that the King could not seise mens lands or goods without Process that he could not make Laws without the consent of his Wittena Gemote or Great Counsel Nor take away mens lives without a Legal trial by their Peers See Mr. Petyt 's Preface to his foremention'd Treatise and that this Government hath never been altered but confirmed by their Successors both of the Danish and Norman Race as appears by their Charters and confirmations and many confirmations of Magna Charta and other Statutes as there is no man that is but moderately vers'd in the
is but like the advice and direction which the Kings Councel gives the King which no man says is a Law to the King Igrant this distinction provided the Author will likewise admit another that though the King is not obliged by Laws or to any Judges of them as to Superiors or as to the compulsory Power of them Yet in respect of God and his own Conscience he is still obliged to observe them and not to dispence with them in those cases which the Law does not give him a power so to do and since it is true that it is the rewards and punishments annext that give laws their Sanction therefore there are certain rewards which will naturally bless Princes that keep their Laws such as peace of Conscience Security the affections of their People c. and if I call the contrary effects to these natural punishments that are commonly the consequences of the breach of them I think I should not speak absurdly since the Author himself tells us P. 93. Albeit Kings who make the Laws are as King James there teacheth us above Laws yet will they rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King degenerates into a Tyrant so soon as he seems to rule it is there printed in the Copy according which is nonsence contrary to his Laws and certainly a Tyrant can never promise himself security either from his own Conscience or from Men but whereas he says the direction of the Law is only like the advice which the Kings Councel gives him which no man says is a Law to him is false for the Kings Councel should never advise him to do that which he cannot whith a safe Conscience perform but the Kings Conscience can never advise him to break those Laws that are the boundaries between his Prerogatives and the Peoples just Rights and therefore though it is true in some cases where the King sees the Law rigorous or doubtful he may mitigate or interpret the Execution thereof by his Judges to whom he hath made over that power in the intervalls of Parliament and though perhaps some particular Statutes may be his Authority be suspended for causes best known to himself and Council Yet this does not extend to Laws of publick concernment and for that I will appeal to the Conscience of any true Son of the Church of England whether he thinks for Example that the Proclamation for indulgence contrary to the Statute made against Conventicles were binding or no Neither is this that follows consistent with what the Author hath said before That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good will and for good Example or so far forth as the general Law of the safety of the Commonwealth doth naturally bind him For in such sort only positive Laws may may be said to bind the King not by being positive but as they are naturally the best and only means for the preservation of the Common-wealth So that if a King thinks any the firmest and most indispensible Laws that have been made suppose Magna Charta or the Statute de Tallagio non concedendo for example not to be for the safety of the Commonweal it is but his declaring that he will have them no longer observed and the work is done nor will this that follows help it though true that all Kings even Tyrants and Conquerors are bound to preserve the Lands Goods Liberties and lives of all their Subjects not by any Municipal Laws so much as the natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the publick Good of the Subjects All which is very well but if this Monarch thus succeeding in the place of the natural Father is the sole Judge of what things are necessary for the common good what if he have a mind to keep these Children for Children and subjects slaves are all one with this Authour as some unnatural Fathers do as cheap as they can or to make the most of them will let them enjoy no more but the scanty necessaries of life and will think fair water brown bread and wooden shooes sufficient for a Farmer and 300 l. or 400 l. per annum enough in Conscience for a Country Gentleman or desiring to be absolute and therefore to have a constant standing Army to raise mony with as some Monarchs do and being resolved that for the future all the just rights and priviledges of his Clergy Nobility and People shall signifie nothing will take all the over-plus of his Childrens Estates eaving them no more then a poor and miserable subsistence he may lawfully do what he will with his own and it is all his upon the first intimation of his pleasure by Edict or Proclamation But perhaps some honest Divine may start up and tell him he will be damned for thus abusing his power or breaking his Coronation Oath what What if this Father of his people shall laugh at him for a fool and think himself too cunning to believe any such thing or what if his Son or Successor be resolved not to run his head any more into the snare of a Coronation Oath but finding himself invested in all the absolute power of his Predecessour without any unjust act of his own since we know Princes seldome loose any thing they have once got will exercise it as he pleases for his own humour or glory and thinks himself not obliged in Conscience to restore any of those rights his Predecessor hath ursuped upon his People I know not what benefit this may be to the Prince but this I am sure of it would very little mend the Subjects condition to be told their former Monarch was damned or that this may follow him when they are now slaves nor is this a mere Chimera since a Neighbouring people over against us lost their liberties by much such a kind of proceeding And therefore this Authour hath found out a very fit interpretation of the Kings Coronation Oath Vide Iuramenta Regis quando coronatur old Stat. ed 1556. for whereas he used to Swear that he will cause equal and upright justice to be administred in all his judgments and to use discretion with mercy and truth according to his power and that the just Laws and customes quas vulgus elegerit I will not translate it shall chuse to be observed to the honour of God Yet our Author will have the King obliged to keep no laws but what he in his discretion Judges to be upright which is to make the Oath signifie just nothing as I have proved already wherein he abominably perverts the sense of this Oath for that which he puts first is really last And the words by which he Swears to observe the Laws and customes granted by King Edward and other his Predecessors are absolute and without
although it look fine yet examined to the bottom signifies little for it is not true that every the least transgression of the bounds of Law is a subversion of the Government it self since if done perhaps only to one or a few persons it does not follow that therefore it must be a leading case and so bring on a prescription against publick Liberty in all cases Neither does the Subjects bearing with it not contribute otherwise then accidentally to this breach of Liberty Since he is obliged to bear it not because it is just but because he either may hope to have redress by the ordinary course of Law or else by petitioning the Assembly of Estates when they meet who are partly ordained on purpose to remonstrate the Grievances of Subjects to their Prince and thereupon to have them redressed Nor is this limited Monarch as the Author would infer less obliged to govern according to Law in smaller or private matters then in great and publick ones Only in many smaller matters Princes or their Officers may through ignorance or inadvertency sometimes transgress the true bounds of Law which they would not do perhaps if they were better informed And so likewise if the Subject bear it it is not from the Legality of the Act but from this great Maxime in Law and Reason that a mischief to some private men is better than an inconvenience in giving every private person power that thinks himself injured by the Prince or his Officers to be his own Judg and right himself by force since that were contrary to the great duty of every good Subject of endeavouring to preserve the common peace and happiness of his Country which ought to be preferred before any private mans Interest So on the other side if the oppression or breach of Laws be general and extend to all the People alike if the reason of the case alter why may not the practicedo so too ' But Mr. H. gives us another remedy in this case that if the Monarchs Act of Exorbitancy or Transgression be mortal and such as suffered dissolves the Frame of the Government and publick Liberty then the illegality is to be laid open and redressment sought by Petition Which is true for an Appeal to the Law from the violence of subordinate Ministers is really a Petition for Justice to the King himself who is by the Law supposed present in the persons of his Judges that represent him and this the Author himself in a better humour does confess in his Patriarcha P. 93. The people have the Law as a familiar interpreter of the Kings pleasure which being published throughout the Kingdom doth represent the presence and Majesty of the King also the Judges and Magistrates are restrained by the common Rules of Law from using their own Liberty to the injury of others since they are to judg according to the Laws and not to follow their own Opinions And because it might so happen that the King may be sometimes surprised or importuned to write Orders or Letters to the Judges to direct them to act contrary to the Law The King himself in Parliament hath declared See the Oath of the Justices 18. E. 3. what Oath these Justices shall take when they are admitted into their Office where among other things they swear thus And that ye deny no man common right by the Kings Letters nor none other mans nor for none other cause and in case such Letters do come to you contrary to the Law that ye do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding the same Letters and concludes thus And in case ye be from henceforth found in default in any of the points aforesaid ye shall be at the Kings will of Body Lands or Goods thereof to be done as shall please him as God help you c. And the Lord Chief-Justice Anderson and his Fellow-Justices in the Common-Pleas who upon so great a point as Cavendishes Case was 35 El. having consulted with all the Judges of England delivered their Opinions solemnly in writing that the Queen was obliged by her Coronation-Oath to keep the Laws and if they should not likewise observe them they were forsworne Anderson p. 154 155. Which Will of the Kings is supposed to be as well declared by the House of Peers his supreme Court of Justice as by any other way See the Judgment upon Tresillian and the rest of his Brethren 21 Rich. 2. and the Impeachment of the House of Commons against the Judges that gave their Opinions contrary to Law in the case of Ship-money Vide the subsequent Act of Parliament 17 Car. 1. Chap. 14. declaring that upon the Tax called Shipmoney and the Judgment Entr. 1. H. 7. 4. b. the judicial opinions of the said Justices and Barons were and are contrary to the Laws and Statutes of this Realm and the Liberty of the Subjects c. which if it be truely observed there can never be any fear of a Civil War or popular Commotion since our Law supposes the King can do no wrong that is in his own person And therefore Sir John Markham when Chief Justice told King Edward the 4th That the King cannot arrest any Man himself for suspition of Treason or Fellony as other of his Lieges may for if it be a wrong to the party grieved he has no remedy Therefore if any Act or thing be done to the Subject contrary to the Law the Judges and Ministers of Justice are to be questioned and punished if the Laws are violated and no reflection made upon the King who is still supposed to do his Subjects Right Si factam fuerit injustum says Bracton per inde non fuerit factum Regis And thus much will serve for a further Answer to the Authors Query before mentioned Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws since all the Subjects both great and small are supposed to know what the Rights and Priviledges of the Subject are as well as what are the Prerogatives of the Crown nor are these reserved Cases so many or so difficult as the Anthor would make us believe but that they may be easily understood without Appealing to any other Judg then the Conscience of every honest man And though the King may for our common defence in time of War make Bulwarks upon another mans Land or command a House to be pull'd down if the next be on Fire or the Suburbs of a City to be demolished in time of War to make it serviceable though men may justify their obedience in such Cases yet it were folly and madness from thence to argue that the King were as much to be obeyed if he commanded us to pull down a whole Town for his Diversion or to take away all mens Lands or Goods at his Pleasure Since if he should be so weak as to command it it were his unhappiness
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
comitum omnium Sapientum Seniorum Populorum totius Regni And whoever will but examine the said Collection of Sr. Henry Spelman will find almost all the Ecclesiastical Constitutions confirmed if not made in the Wittena Gemote the Great Synode or Council So that what this Author says of the difference of the Laws and Customs of the several Kingdoms during the Heptarchy makes nothing against us as long as we can prove that in the main the Government of them all was alike in the three great Liberties of the Subjects viz. Trial by a Mans equals and absolute Propriety in Lands and Goods which the Kings could not justly take from them and a Right to joyne in the making of all Laws and raising Publick Taxes or Contributions for War So that without doubt these Wittena Gemotes or great Councils were Ordained for some Nobler and Higher purpose then either to give the King advice what Wars to make or what Laws to make or barely to Remonstrate their grievances as this and some other Modern Authors would have it for what King would call so great a Multitude those Antient Parliaments consisted of to be his Councellors Or would call together the whole Body of a Nation only to be made acquainted with their grievances which he might have known with greater ease to himself and less charge to the Subjects by having them found by the Grand Inquest in the County-Court And so to have been presented to him by the Earl or Alderman of each particular County whereas we find these great Councils imploy'd in businesses of a higher Nature such as the confirmation of the Kings Charters the Proposing of Laws the Election of Archbishops other great Officers So that the Higher any Man will look back the more large uncontroulable he will find the Power of this great Assembly Since before the Conquest and afterwards too we find them to have often Elected Kings when the Children of their last King were either Minors or supposed unfit to Govern So that whoever will take the pains to consult our Ancient Saxon and English Historians will find that there was never Anciently any Fundamental or unalterable Law of Succession nor was it fixed for any two Discents in a right Line from Father to Son without interruption until Henry the Third and then it lasted so but Four Generations reckoning him for the first And as for these particular Laws or Customs the Author mentions whether King Edgar or Alfred first Collected them as were also Corrected and Confirmed by both the Edwards to wit the Elder and the Confessor they still owed their Authority to the King Vi. Lambert de priscis Anglorum Legibus p. 1â—9 and his Barons and his People as Malmesbury before asserts As for the Danish Laws they never prevail'd but in those Countrys which the Danes intirely Conquered which consisted mostly of them as Norfolk Suffolk and Cambridge-shire but as for the rest of England it was governed by its own Laws and enjoyed its Ancient Customs in the Reign of King Knute and his Successors of the Danish Race See the Charter of K. Knute quoted by Mr. Peâ—yt in his said Treatise pag. 146. But to come to the Authors next Reason why there can be no Fundamental Laws in this Kingdom viz. Because the Common Law being unwritten doubtful and difficult cannot but be an uncertain Rule to govern by which is against the Nature of a Rule which always ought to be certain This is almost the same Argument as the Papists make use of against the Scriptures being a Rule of Faith only their Reason is that the Scriptures are obscure because they are Written and need an Expositor viz. The Church or Tradition but with Authors it is contrary the Law is doubtful because unwritten whereas all that understand any thing of the Nature of the Laws of England know very well that the Common Law whose Authority depends not on any set Form of Words but the Sence and Reason of the Law is much less doubtful and makes fewer Disputes then the Statute-Law but though it be granted that many things in the Common Law are doubtful and difficult yet in the Main and Fundamental parts of it but just now recited it is plain enough As the Scriptures though doubtful or obscure in some things yet are plain and certain in all Points necessary for Salvation and why it is harder for an ordinary Countrey Fellow in a Civil Government to know when he is Condemned to be Hang'd without trial or to have his Goods or Money taken from him by a Fellow in a Red-coat without any Law then for him to judg in the State of Nature when another Man lies with his Wife or goes about to Rob or Murther him I know not His last Reason against making Common Law only to be the Foundation when Magna Charta is excluded from being according to Mr. H. a Fundamental Law and also all ' other Statutes from being limitations to Monarchy since the Fundamental Laws only are to be judg and these are Statute Laws or Superstructures This is also meer Sophistry since no Man in Metaphors or Similitudes ever expects an absolute Truth but what if the great part of the Magna Charta were Fundamental Laws before either King Stephen or King John granted it and that they did but restore what some of their Predecessors had before by oppression taken from their Subjects since there is little or none of it but was part of King Edward's Laws and consequently the Ancient Saxon Law before the Conquest and the like may be said of all other Constitutions in limited Monarchies as suppose in Denmark the Crown which was before Elective is now by the Concession of the Estates become Successive I believe no Men of this Authors Opinion will deny that this is not now a Fundamental Law in that Kindom and can never be altered without the Consent of the King and the Estates and yet this is a Law that follows after the Government was Instituted nor can I see any Reason why this Rule may not hold as well on the Peoples side as the Kings Why Rules of Play may not be made as well after the Gamesters are in at Play as when they first began and may not be as well called Fundamental Laws of the Game since if they are not observed it may be lawful for any of the Gamesters to fling up his Cards and play no more though he be at play with the Authors Natural Monarch his own Father But our Author will not leave off so but must give us one stabing Paragraph more against Fundamental Laws which is thus ' Truely the Conscience of all Mankind is a pretty large Tribunal for these Fundamental Laws to pronounce Sentence in It is very much that Laws which in their own Nature are dumb and always need a Judg to pronounce Sentence should now be able to speak and pronounce Sentence themselves Such a Sentence surely must
certain Revenue appointed for this end of which burthen if you are afterwards a weary you shall not be able to Depose him again since he obtain'd the Kingdom by your choice and consent and so cannot be taken from him So that it is plain that this place does not at all serve to Patronize evil Princes so neither that there is here any limited Power conferred by God after the manner of a constant and unalterable Precept and of which no constitutions can diminish any part since here only the necessary Charges and Burthens as well of an absolute as of a limited Royalty are described therefore it is wholly in the will of a free People whether they will have an absolute Power or will deliver it with certain Laws so that those Laws contain nothing that is wicked or which may destroy the ends of Government for although Men at the beginning did freely enter into a civil Society yet since they were before obliged to the observation of the Law of Nature they ought to Constitute such Rules of Power and civil Obedience which might be agreeable to that Law and to the lawful ends of all Common-wealths But as it may rightly be understood by what sort of Promise a Kingly Government may cease to be absolute for every promise hath not that force it is to be understood that a King upon his taking the Kingdom may oblige himself either by a General or special Promise which for the most part is confirmed by the Religion of an Oath A General Promise may be made either tacitely or expresly A tacite Promise of Governing well is understood in the very acceptance of the Kingdom although there were nothing expresly Promised yet most commonly this promise ought to be made expresly not without an Oath the solemnity of certain rights neither is it unusual that in this promise the Office of a King should be described by a Periphrasis or enumeration of the principal Parts as suppose it be that he will take care of the Publick safety that he will defend the good and punish the bad that he will Administer indifferent Justice that he will oppress no Body or the like Such Promisses do not all detract from absoluteness of his Power since the King is indeed obliged by those general Promises to govern well but what Method or what means he shall make use of for this end is left to his will and discretion but a special promise and in which both the Method and means to be used in the Administring the Government are particularly expressed seem to have a twofold Power for one only obliges the Conscience of the King but the other makes the Obedience of the Subjects depend upon its performance as upon an express condition A Promise of the first sort is thus If the King should swear for example that he will not bestow any Offices of trust on such a sort of Men that he will not grant any Priviledges to any which shall redound to the prejudice of others that he will make no new Laws or impose new Taxes or Customs or will not use Foreign Souldiers or the like Yet if there be no certain Council or Assembly Coustituted which the King should be obliged to consult whether the occasions of the Common-wealth require he should depart from those Engagements for there is still in all of them that tacite exception still understood unless the Safety of the Common-wealth the Supreme Law in all such Engagements require otherwise and which Council by its own right and not precariously can take cognizance of those affairs and without whose consent the Subjects cannot be obliged to observe the Kings commands in such matters here the Administration of the supreme Authority being restrained to certain Laws if the King shall act otherwise unless in cases of great necessity he is without doubt guilty of the breach of his Oath yet there does not therefore belong any power to the Subject to deny Obedience to the Kings commands or of making those actions void For if the King do say That the safety of the People or some remarkable advantage to the Commonwealth requires him to break his Promise as that presumption always ought to go along with the Kings actions the Subjects in this case have not any thing to reply because they have no faculty of taking Cognizance of those actions whether the necessity of the Common-wealth required them or not from which this is apparent that they do not take a sufficient caution if they will allow their King but a limited Power and yet hath not Constituted some great Council without whose consent those actions excepted cannot be exercised or unless there lie upon the King a necessity of calling the Estates whenever he deliberates upon the exercise of those Legislative Powers for that is better than if it should be necessary for the King to consult some Council consisting only of some few of his Subjects since it may easily happen that the private advantages of those few may differ from the publick good and likewise they for their own private Interest may not agree in those things which are truly beneficial for their Prince But the Authority of a King is more closly restrained if it be expresly agreed between the King and People upon the conferring the supreme power upon Him or his Ancestors that he should Administer it according to certain Fundamental Laws and concerning those matters which he hath not absolute Power to dispose of that he leave them to a great Council of the People or Nobility neither may decree any thing in those matters without their consent and if they should be done otherwise that the Subjects would not be obliged to observe his commands in such things neither yet is the Supreme Power rendred defective by such Fundamental Constitutions For all the acts of Supreme Power may be exercised in such a Kingdom as well as in an absolute one unless that in the one the King uses his own Judgment alone as decisive but in the other there is as it were a concomitant Cognizance remaining in the great Council upon which power of the Supreme Authority it does not radically but as it were conditionally depend sine qua non neither are there in such a Common-wealth two distinct wills forall things which the Common-wealth wills it wills them by the Kings will alone although it might happen form that limitation that certain conditions not being observed the King cannot legally will some things and so wills them in vain but neither does the King cease to have the supreme Power in such a Kingdom or that this Council is therefore above the King For these are no true consequences that because this Person cannot do all things according to his own humour therefore he hath not supreme Power I am not obliged to obey this Man in all things therefore I am his Superior or Equal and these are likewise very different I am bound to perform what this Man
pleases because I have obliged my self to it by compact and I am obliged to follow this Mans will because he can enjoyn me thus by his supreme Authority But supreme and absolute are not one and the same thing for that denotes the absense of a Superiour or an Equal in the same order or degree but this a faculty of exerciseing any right by a Man 's own Judgment and Will but what if there be added a Commissary clause that if he shall do otherwise he shall forfeit his Kingdom as the Arogonians of Old after the King had sworn to their Priviledges did promise him Obedience in this manner Vid Hotomani Frarcogallia C. 12. We who are of as great Power as thou do Create thee our King and Lord on this condition that thou observe our Laws and Priviledges if otherwise not Here it is certain that an absolute King cannot be He to whom the Kingdom is thus committed under a Commissary Clause or Condition but that this King may have for all this a regal Power though limited I see no reason to the contrary for although we grant a Temporary Authority cannot be acknowledged for Supreme because it depends upon a potestative condition and which can never be in the Princes power Yet a King of this sort above-mention'd is not therefore subject to the power of the People with whom the cognizance is whether he keep his Oath or not for besides that such a Commissary Clause is wont to comprehend only such plain things which are evident to any Mans sences and so are not liable to dispute So that this power of taking cognizance does not at all suppose any Jurisdiction by which the Actions of the King as a Subject may be judged but is nothing else than a bare Declaration whereby any Man takes notice that his manifest right is violated by another See Grotius Lib. 1. Cap. 3. § 16. And Baecler upon him who are both of the same Opinion Grotius indeed in the same place speaks more obscurely when he says That the Obligation arising from the promises of Kings does either fall upon the exercise of the act or also directly upon the very power of it if he act contrary to promises of the former sort the act may be called unjust and yet be valid if against those of the latter it is also void as if he should have said Sometimes a King promises not to use part of his Supreme Authority but after acertain manner and sometimes he plainly renounces some part thereof concerning which there are two things to be observed first that also some acts may be void which are performed contrary to an Obligation of the former sorts as for example if a King swear not to impose any Taxes without the consent of the Estates I suppose that such Taxes which the King shall Levy by his own will alone to bevoid Secondly That in the latter form the parts of the supreme power are divided But that the Nature of limited Kingdoms may more thoroughly be understood it is to be observed that the affairs which occur in Governning a Common-wealth are of two kinds for of some of them it may be agreed beforehand because whenever they happen they are still but of the same Nature but of others a certain Judgment cannot be made but at the time present whether they are beneficial to the Publick or not for that those circumstances which accompany them cannot be forseen Yet concerning both that People may provide that he to whom they have commited this limited Kingdom should not depart from the Common good in the former whilst it prescribes perpetual Laws or Conditions which the King should be obliged to observe in the latter whilst he is obliged to consult the assembly of his People or Nobility Thus the People being satisfied of the truth of their Religion and what sort of Ecclesiastical Government or Ceremonies do best suit their Genius so it is in Sweden may condition with the King upon his Inauguration that he shall not change any thing in Religious matters by his sole Authority So every Body being sensible how often Justice would be injured if Sentence should always be given by the sole Judgment of the Prince ex aequo hono without any written or known Laws and that Passion VI. Tacit An. L. 13. 4. 2. Interest or unskilfulness would have too great a sway for avoiding this inconvenience the people may oblige their King that either he shall compose a Body of just Laws or observe those that are already extant and also that Judgment be given according to those Laws in certain Courts or Colledges of Justice and that none but the most weighty Causes should come before the King by way of Appeal This is likewise the Law of Sweden So likewise since it is well known how easily Riches obtained by the Labour of others may be squandered away by Luxury or Ambition therefore the Subjects Goods should not lie at their Princes mercy to sustain their Lusts Some Nations have wisely assigned a certain Revenue to their Prince such as they supposed necessary for the constant Charges of the Common-wealth but if greater expences were necessary they would have those referred to the Assembly of Estates And since also some Kings are more desirous than they ought to be of Military Glory and running themselves into unnecessary Wars may put themselves and their Kingdoms in hazard therefore some of them have been so cautious that in the conferring the regal Dignity they have imposed this necessity upon their Kings that if they would make offensive Wars upon their Neighbours they should first advise with their great Council and so likewise it might be ordained concerning other matters which the People judged necessary for the Common-wealth lest that if an absolute power of ordering those things were left to the Prince the common good of the People would perhaps be less considered And since the people would not leave to this limited King an absolute power in those Acts which are thus excepted but that an Assembly either of the whole people or of those that represent them divided into their several Orders it is further to be observed that the power of this Council or Assembly is not alike every where For in some places the King himself though every where absolute may have appointed a Council or Senate without whose approbation he will not have his decrees to be valid Which Senate without doubt will only have the Authority of Councellors and though they may question the Kings Grants or Decrees and reject those which they judg inconvenient for the Common-wealth yet they do not this by any inherent Right but by a power granted them from the King himself Who would this way prevent his decreeing any thing through hast imprudence or the perswasion of Flatterers that might prove hurtful to his State to which may be referred what Plutarch mentions in his Apothegms ' That the Aegyptian Kings
Vote to chuse Parliament-men but Freeholders or as in old times none but those who served in the Wars in person had Votes in the Withena Gemote or Great Council And yet this was no standing Army no more than those in Greece So likewise neither are these words fairly rendered in the same page 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that in a Popular State The Soveraign Power is in the Sword and those that are possessed of the Arms but are thus to be rendered In this kind of Government i. e. Popular those govern and have greatest Power who bear Arms and fight for the rest which is but reasonable I shall not trouble my self with the rest of those Contradictions and Faults he find◠with Aristotle since I look upon this Treatise of Politicks as the most confused he hath writ onely it seems this Author did but skim over Aristotle when he so confidently asserts That the natural Right of the People to found or elect their own kind of Government is not once disputed by him which whether he asserts or no let these words judge lib. 5. Pol. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which may be thus Englished But of Kingdoms by discent this may be supposed the cause of their dissolution besides those al◠ready mentioned viz. when it happens to many of them who not being endued with the power of a Tyrant but onely with a Kingly Authority become contemned whilst they will unjustly abuse their Subjects for then there is an easie dissolution of the Government for he is not a true King over those that like not his Government but a Tyrant P. 20 21. He finds fault with Aristotle for making the main distinction between right Forms of Government and those that are imperfect or corrupt to consist solely in this That where the profit of the governed is respected there is a right Government but where the profit of the Governours is onely regarded there is a corruption or transgression of Government By this it is supposed by Aristotle that there may be a Government which he calls a Tyranny onely for the benefit of the Governour That this Supposition is false may be proved from Aristotle himself to instance in the point of Tyranny And therefore the Author endeavours to make him contradict himself thus Tyranny saith Aristotle lib. 3. cap. 7. is a Despotical or Masterly Monarchy Now he confesseth l. 3. c. 6. That in truth the Masterly Government is profitable both to the Servant by nature and the Master by nature And he yields a solid reason for it viz. It is not possible if the Servant be destroyed the Mastership can be saved Whence it may be inferred That if the Masterly Government of Tyrants cannot be safe without the preservation of them whom they govern it will follow That a Tyrant cannot govern for his own profit onely And thus his main definition of Tyranny fails as being grounded on an impossible Supposition By his own confession no Example can be shewn of any such Government that ever was in the world as Aristotle describes Tyranny to be for under the worst of Kings though many particular men have unjustly suffered yet the Multitude or People in general have found benefit and profit by the Government If Aristotle were alive I doubt he would say this Author plaid the Sophister with him and did not onely misquote his words but pervert his meaning For first Aristotle does not say in that place he quotes or in any other that I know of That Tyranny is a Despotical or Masterly Monarchy And therefore all he builds upon this Concession is false It is true indeed Aristotle says That the Government of the Master is profitable both to the Servant by nature and the Master by nature that is upon his supposition that they are either so by nature But the Author omits what immediately follows because it would vindicate Aristotle's true meaning for his next words are Nevertheless it i. e. the Masterly power regards chiefly the profit of the Master and of the Servant but by accident but Oecumenical Government or that of a Master over the Wife Children and Servants is for their sakes whom he governs and for the common good of them all Hence it appears plainly that Aristotle when he says that a Tyranny is for the benefit of the Governour alone he does not mean that the Subjects can have no benefit at all by it since it is the Tyrants interest they should live and get Children or else he would quickly want Subjects Thus the Children of Israel under the Tyranny of Pharaoh had Meat Drink and Cloaths and were not so low kept but they got Children apace and yet we find God thought them opprest and heard their cry But Aristotle clears the point when he distinguishes an absolute Masterly power over a Slave from that of a Father of a Family the Master in the former considering onely his own profit and the preservation of the Slave but by accident and so an ill-natured brutish Master takes care of the life of his Slave that works in the Mines or Sugar-works in the Indies not out of any love to the person of the Slave but because he cannot subsist without him So a Grasier or Butcher takes care of his Cattel that they thrive and do well as they call it yet every body knows that they take this care onely for their Carcasses which yield them so much ready money at the Market So that indeed a Tyrant onely considers his own good in the welfare of his Subjects and looks upon them as no better than brute Beasts in which he hath an absolute property to shear or kill as he thinks it most conduces to his own profit without considering to what end he is set over them As the Grand Seignior makes use of the bodies of his poor Christian-slaves for Subjects I cannot call them to fill up Ditches and to blunt the edge of his Enemies Swords But that all Kings are bound to preserve the Lands Goods and Lives of their Subjects the Author himself confesses Patriarcha p. 94. Though not by any municipal Law so much as the natural Law of a Father which binds them to ratifie the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects So then I hope there is some difference between the Government of a Father over his Children and that of an absolute Lord over his Slaves notwithstanding our Author's Quotation out of Aristotle whereby he would make them all one viz. That a Kingdom will be a Fatherly Government Which is true if you take it in the best sence for that affection that Kings like Fathers should have for their Subjects And so it is plain Aristotle intended it by the words immediately foregoing thus For the Society of a Father with his Sons has an appearance of a Kingdom not that it is so indeed But to make an end with Aristotle I will give you one
Scripture will easily be answered as first how Adam's Children could have any right to any of the things of the world since that the world and all things in it were given by God to Adam and Eve before their Children were born and so being born after this grant they could have no farther interest in any thing than their Parents pleased to allow them to whom all things were granted before As for this particular grant or Dominion of Adam I have all ready shewn its weakness and that the Grant was not Personal to Adam and Eve alone but to all Mankind though made to them as the Protoplasts or representatives thereof and as for the right of occupancy I have already layd down that no man in the state of nature hath a right to more land or territory than he can well manure for the necessities of himself and Family that is can reduce into actual possession otherwise a man that first sets his foot on an uninhabited Island would have an absolute right to the whole though it were a Thousand miles long or to all the Territory he could discover with his Eyes so that no man could make use of one foot of land in that Island but by his permission But another Objection is That even in the state of Innocency there neither ought nor could have been such a Community because since all order is agreeable to right reason and the best order of possessing the things which were granted by God to Mankind was only proper to that â—ate in which the abstaining from that which was anoâ—ers might best be practiced Since that Law must be â—rit upon mens minds even before the fall at least before â—e law given thou shalt not steal by which there is estaâ—lisht a certain and distinct Propriety to every man in the â—ings he possesses In answer to which it may be reâ—lyed that no man can tell what kind of life men â—ould have led had they continued in the state of â—nnocency or whether Propriety or Community â—ould have suited best with their way of life though rather encline to the latter since there had been â—o need of enclosure the Earth producing all things â—eedfull for the life of man without his labours â—nd going naked could need no more things than what were meerly necessary but after the fall 〈◊〉 untill which they needed no laws as being uncaâ—able of sinning these Commandments thou shalt â—ot steal nor covet thy neighbours goods did take â—lace even during this Communion of things For â—he same law of Nature or Reason that now forbids â—en to covet or take from each other any of those â—hings which he enjoys by the laws of the Common-wealth where he lives does before the institution â—f the laws about an absolute Property likewise forâ—id the taking away from any man those things which were necessary for the subsistance of himself â—r Family and was either actually possessed â—f as being in his hands or lying in his preâ—ence or to such things as he had perhaps laid by for â—uture occasions nor is there any more obligaâ—ion upon Mankind from these Commandments â—hou shalt not steal thou shalt not covet to institute â—n absolute distinct Property in all things than â—here is that we should still have slaves among us because the Jews seldom using any other servants God commands them that they should not covet such 〈◊〉 slave any more than his Ox or his Al 's For the Law was only intended to take place as far as the Subject was capable Having now answered all the considerable Arguments that can be made against the possibility of a primitive Communion I hope this great difficulty which hath puzled some Divines which is prior in nature Propriety or civil Government is now cleared since it is apparent Propriety understood either as the application of natural things to the uses of particular Men or else as the general agreement of many men in the division of a Teritory or Kingdom must be before Government one main end of which is to maintain the Dominion or Property before agreed on Having run over all that is most considerable in these observations both concerning the natural Dominion of Adam and consequently shewn the original of Dominion and Property I shall concern my self very little in the difference between the Author and Grotius concerning the Power of the people to resist and punish Kings in which I shall say no more than that a Prince who is subject to be so punished is not really a King in the sense that the word King ought to be understood since a King is properly one that hath no Superior and consequently is not capable of Punishment all punishments as I said before being properly the effects of a Superior over an Inferior so that the Kings of Sparta were no more than Generals of the Army and if the Duke of Venice should have the title of King given him to morrow he would still be but the Head of the Senate since the one was liable to be put to death by the Ephori as the other is still by the Counsel of Ten. But if there are any such desperate inconveniences as the Author mentions that attend this Doctrine of natural freedom and Community of all things it is more than I can find or I believe any man else that will consider the nature of mankind and when that is done if things are contraâ—ry to his notions of them it is not his declaiming will alter mens Judgements much less the nature of the things themselves As for Grotius's three ways whereby Supreme Power may be had Obs P. 63. as 1. By full right of Propriety 2. By an usufructuary and 3. By a temporary right I think in most things Grotius may very well be defended though not in all For whereas he acknowledges two ways whereby a King may obtain a full right of Propriety in a Kingdom That is either by a just war or by donation from the People I do not see the Author finds fault with him upon any just grounds because he hath not shewn how a War can be just without a precedent Title in the Conqueror as if no war could be just nor no Conquest made without such a precedent Title For all men know that a war may commence upon other scores than old Titles and in such wars the Prince or State that hath the right of their side may prosecute this war either untill they gain this first demand or else absolutely subdue their Adversary So that he mistakes â—n saying that Grotius will have a Title only to make the War just so that all he says upon this false supposition signifies just nothing but as for what he says about a Conqueror's having no new Title but being remitted to his old one is true Nor do I see any inconvenience from it For if he were an absolue Monarch before he were put out he cannot Attain more than he had before so if he or â—is
and if that condescent be an act of Grace doth not this condesent to a limitation come from the free determination of the Monarchs will if he either formally or virtually as the Author supposeth desert his absolute or Arbitrary power which he hath by conquest or other right Which last words of Mr. H. though I confess they are ill exprest yet I see no down right contradiction in the sence Mr. H. meant them if any man please to consult him he there says That a Monarch may either be limited by original constitution or an after condescent therefore these words the sole means of Soveraignty is the consent and fundamental contract is not meant of a limited Monarchy any more than of another but of any Soveraignty whatever So likewife though these words a secundary original constitution may seem to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to destroy each other yet as the Author explains himself you will find they do not in sense for he only supposes that a Prince who hath an absolute Arbitrary power either by succession or election finding it not so safe and easie as he conceives it would be for him if he came to new terms with his people would desert some of that despotick power and govern by let rules or Laws which he obliges himself and his Successors by Oath or some other conditions never to make or alter without the consent of his Subjects I see not why this may not in one sense be called a second original constitution for he was at first an absolute King by which was the original constitution and his coming to new Terms with them may be termed in respect of this a secundary original constitution or agreement of the government though founded upon the former old right which the Monarch had to govern as for a King by Conquest it cannot indeed in respect of him be properly called a secundary constitution since the Conquerour had no right to clame an absolute subjection from the Subjects until they submitted to him so as that they might not drive him out again if they were able until he came to some Terms with them Thus I think no sober man but will maintain that the people of England might lawfully have driven out William I. called the Conquerour supposing he had claimed by no other title but Conquest alone which when he had sworn to observe and maintain all the Laws and liberties of the people of England and had been thereupon Crown'd and received as King and had quitted his pretensions by Conquest or force and had taken the Oaths and homage of the Clergy Nobility and People they could not then without Rebellion endeavour to do And certainly had he not thought his title by Conquest not so good as the other of King Edward's Testament he would never have quitted the former and sworn to observe the Laws of his Predecessor so likewise Henry I. Mat. Paris from whom all the Kings and Queens of England have since claim'd upon his Election and Coronation for other title he had none granted a Charter whereby he renounced divers illegal practices which Flatterers may call Prerogatives which his Father and brother had exercised contrary to King Edward's Laws and their own Coronation Oaths so that here is an Example of one of the Authors absolute Monarchs who by a right of Conquest might pretend to the exercise of an arbitrary power yet renounced it and only retained so much as might serve for the well governing of his Subjects and his own security It is not therefore true which this Author affirms that this accepted of so much power as the people pleased to give him since they neither desired nor did he grant them any more but those just rights they had long before enjoyed under their former Kings before his Father's coming into England However I conceive this wise Prince was of the opinion of Theopompus King of Lacedemon Plut. in Lycurgo who when his wife upbraided him that he would leave the royal dignity to his Sons less than he found it no rather replyed he greater as more durable and therefore Plutarch in the same place ascribes the long continuance of the Lacedemonian Kingdom to the limited power of their Kings in these words ' and indeed when Envy is removed from Kings together with excess of power it followed that they had no cause to fear that which happened to the Kings of the Massenians and Argives from their Subjects But because this Author tells Mr. H. that if we should ask what proofs or examples he hath to justify his Doctrine of a limited Monarchy in the Constitution he would be as mute as a fish we will shew two or three examples of the antiquity of such limited Monarchies though they were not of the same model with those that are at this day found among the Germanes and other northern Nations descended from thence In Macedon the Kings descended of Caranus as Callisthenes says in Arrian did obtain an Empire over the Macedonians not by force but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by Law So Curtius Lib. IV. The Macedonians were used to Kingly Government but in a greater appearance of liberty than other Nations For it is certain the lives of their Subjects were not at their disposal as appears from the same Author Lib. VI. The Army by an antient custom of the Macedonians did judg of Capital causes i. e. in time of War but in peace it belonged to the People the power of their Kings signified litle unless his Authority was before of some force And this was by original constitution for we do not find that ever the Kings of Macedon altered any thing in their original constitution yet they had the Soveraignty in most things and their persons were sacred So likewise among the antient Romans where Romulus from a Captain of Volunteers became a King Dyonisius Halicar Lib. II. Tells us that after Romulus had made a speech to his Souldiers and followers to this effect that he left it to them to consider what Government they would chuse for whatsoever they pitcht upon he should submit to it and though he did think himself unworthy the Principality yet he should not refuse to obey their Commands concluding that he thought it an Honour for him to have been declared the Leader of so great a Colony and to have a City called by his name Whereupon the people after some deliberation among themselves chose him their King or limited Monarch since both the Senate and people had from the very beginning their particular shares in the Government the Senates making this great Counsel which yet were for the greater part of them chosen out of the Patricians by the Tribes Dyon Hal. Lib. 11. and Curiae with these he consulted and referred all business of lesser moment which he did not care to dispatch himself for be reserved to himself the last Appeal in causes and to be Pontifex Maximus or Cheif Priest and Preserver
that he had no more understanding But it would be our Crime and we alone were punishable if we should obey such a Command and it is only upon this supposition whether the sufficiency of the Protection of our Laws and the integrity of the Judges declared in the 14th of his now Majesties Reign by the Act concerning the Militia be full that it is a Traiterous Position that Arms may be taken by his Majesties Authority against his Person or against those Commissioned by him in persuance of Military Commissions Because they suppose the King will not make use of the Militia for the destruction but the preservation of the Subjects just Rights and because all Officers of the Army or Militia are at their Peril to take notice whether their Orders are according to Law or not For they put it thus though to take free Quarter or to hang a man by Martial-Law in time of War be lawful yet to do so in time of Peace though in the Kings Name is Robbery and Murder And of this Opinion is that antient Book called the Mirror of Justices Chap. 1. Sect. 10. De Larcine En cest Peche viz. Robbery chiont tonts ceux que pernont le' autrun per l' Authorite del Roy en le' autre Grand Seigneur sans le gree de ceux aux queux les biens sont Into this Crime viz. Robbery all those do fall who take the Goods of another by the Authority of the King or any other great Lord without their Consent ' Nor I dare fay will any honest well meaning Subject be discontented if in case of extream necessity or some sudden danger the King should somewhat exceed his Prerogative for the defence of the Kingdom further then the Law will allow Since in matters of private concern a Man will not be angry with his Agent or Factor whom he hatâ—â—mpowered to look after his Business in another Countrey if the Agent perceiving the person for whom he is intrusted does not understand how his concerns in that place stand and that the Affair will not permit him to send again for farther Orders if he act contrary to his first Instructions since if he did not his Friends or Masters business would be lost Much more in the case of a King who besides the peoples concerns with which he is intrusted hath likewise his own Crown and Dignity at Stake So likewise a King will easily pardon a Subject who upon a sudden Insurrection or Invasion raises Forces and marches against the Enemy without staying for a Commission and when a Prince hath so well satisfied his Subjects that he never intends to make use of this Prerogative but for the good and preservation of his people he may do almost what he pleases and no body will be concerned And this made Queen Elizabeth meet with that great Affection and Confidence that she did throughout her whole Reign for though she sometimes exercised as high Acts of Prerogative as some of her Predecessors yet she had the good luck to have scarce any of them questioned in Parliament because the whole Nation was satisfied she acted for the best and sought no other end but the publick good and safety of the Kingdom Which had she permitted Spain to have swallowed up France and the Low-Countries it would have been a hard task to perswade them But Mr. H. proceeds in the same Paragraph and supposes that redressment by Petition failing that is that the Judges either do not or will not act according to their Oathes then if the Exorbitancy ' or transgression be mortal to the Government prevention by resistance ought to be and if it be apparent and appeal be made to the Consciences of Mankind then the Fundamental Laws of that Monarchy must judg and pronounce sentence in every mans Conscience and every man so far as concerns him must follow the Evidence of Truth in his own Sense to oppose or not oppose according as he can in Conscience acquit or Condemn the Act of the Governour or Monarch This our Author finds fault with ' First concerning the laying open of illegal Commands he will have Mr. H's meaning to be that each private Man in his peculiar case should make a publick Remonstrance to the World of the illegal Acts of the Monarch and then if upon his Petition he cannot be relieved according to his Desire he ought to make Resistance Whereupon the Author would know who can be Judg whether the illegality be made sufficiently apparent It is a main point since every man is prone to flatter himself in his own cause and to think it good and that the wrong or injustice he suffers is apparent when moderate and indifferent men can discover no such thing and in this case the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erronious In which Annimadversion of our Author he first lays that to Mr. H's Charge which he does no where affirm that every particular Subject when injured should make a publick remonstrance to the people but only lay it open to the Monarch or his Judges that represent him by Petition And sure there is a great deal of difference between a Petition and a Remonstrance He does not say that every single Subject failing of Redress by Petition ought to make resistance in his own case for he before supposes the Exorbitant Act or Transgression not to be Mortal such as suffered dissolves the Frame of the Government and publick Liberty And that in such lighter cases for the publick Peace we ought to submit and make no resistance at all but de jure cedere which can never fall out as long as this Transgression or Exorbitance extends it self only to some particular men 2. Our Author will have no particular man to be Judg in his own Cause I grant it if by Judg he means Execution too by publick resistance Otherwise a mans passing his judgment or declaring it that he thinks himself injured suppose by a Decree in Chancery or Act of Parliament does not disturb the Goverment or publick Peace But he may if he please bring his Appeal or a new Bill in Parliament and have the unjust Decree or Act reversed which he can never do if he did believe he ought not to make the injustice or illegality of this Act or Decree apparent to those that are to give him redress but if this Exorbitant Act or Transgression be general and presses upon all alike I deny that the Judgment of the common people cannot be gathered or known by any possible means or if it could it were like to be various and erroneous For suppose the illegal Act were so publickly declared that for the future all Taxes should be raised without consent of Parliament or that all menshould be tried for their Lives without Juries I would fain know whether the Judgment not only of the Commonalty but of all
Confessors days Since whose time the Kingdom of England hath remained as it does In which passage the Author hath discovered either a great deal of Ignorance or inadvertency in the History and Government of his Country For first he Confesses that the English Saxons had a Meeting which they called the Assembly of the Wife termed in Latine Conventus Magnatum or Praesentia Regis Procerumque Prelatorum Collectorum or in general Magnum or Commune concilium c. All which Meetings may in a general sence be termed Parliaments yet he will not allow there could be any Parliaments assembled of the general Estates of the whole Kingdom for the reason he gives us before What he means by until about the time of the Conquest I know not but this is certain that from the time of King Egbert who is reckoned the first Monarch the great Council or Wittena Gemore consisted of the General Estates of the West-Saxon-Kindom and if the whole people of England had not their Representatives there it was because they were represented by their Tributary Princes or Kings who Governed Subordinately to this Monarch until the coming of the Danes Thus the West-angles had their particular Kings in the time of King Ethelwolf St. Edmund the last King being Conquered by the Danes So likewise had the Mercians their King Beorced their last King being driven out by the same Invaders about the same time and after the Kingdom was at Peace again and the Danes in great part subdued or quiet King Alfred Re-conquering the mercian-Mercian-Kingdom gave it in Marriage to a Saxon Nobleman called Etheldred who had Married his Daughter Elsteda who was long after her Husbands Death Lady or Queen of the Mercians Rerum Anglick Scriptores post Bedam Ed Fra. p. 857. yet did these feudatory Princes always appear and make a Part in the Wittena Gemore or great Council of the Monarch thus we may find in Jugulphus that Withlafe King of the Mercians made a promise of the Lands and Liberties of the Abby of Croyland which he after confirms by his Charter in Prisentia Dominorum meorum Egberti Regis Westo-Saxoniae Athelwolwafij filij ejus coram pontificibus proceribus totius Angliae in Civitate Lundini ubi omnes Congregati sumas pro consilio capiendo contra Danicos Pyratat Littora Angliae infestantes which certainly was a great Council And that these Kings were tributary to the West Saxon Monarch the same Author tells a little further that Bertulph Brother of Witlafe succeeded his Nephew Wimund Id. p. 860 861. and was Tributary to Athelwolf King of West Saxony and by his Charter confirms the same Lands and Liberties to the said Monastery which had been granted by his Predecessors and this was done and confirmed unanimi consensu totius praesentis concilij hic apud Kingsbury Anno incar Domini 881. c. pro Regni negotis congregati and is thus subscribed Ego Olflac Pincerna Legatus Domini mei Regis Ethelwolf Filiorum suorum nomine illorum omnium Westsaxonum istum Chirographum Regis Bertulphi plurimum Confirmavi Ego Bertulphus Rex Mericorum palam omnibus prelatis Proceribus Regni mei Which shews us that besides the General Council of the whole Kingdoms these Mercian Tributary Kings had a Particular Council or Parliament of their own Kingdom without whose consent as also of their Paramount Monarch they could not part with the Lands and Royalties belonging to their Crown So likewise in the same Author Beorced King of the Mercians Anno Domini 868 confirms his Charter to the same Monastery at Snotringham coram fratribus amicis omni populo meo in obsidione Paganorum Congregatis To which likewise his supreme Monarch Elthred King of the West Saxons gives his consent and subscribes after the Bishops the like form we find in the passing of all the other Charters to this Monastery quoted by the said Author which are all of them confirmed by the King then Reigning in praesentia Archiepiscop Episcop Procerum or optimatum Regni Collectorum And before the Kingdom came to be united under one supreme King or Monarch there was also one great Council or Synod of the whole Kingdom where the chief and most powerful King or Monarch of the Heptarchy presided and in which they made their general Ecclesiastical Canons and also Civil Laws that were binding to the whole People of England and to which Persons that had been grieved or wronged by their particular Kings appealed and were righted and to this general Wittena Gemote that antient Writer Will. Malmsbuny speaking of the antient Customs and Laws of England says were made per generalem Senatum populi Conventum edictum therefore we find the first Synod or Council of Clovesho Anno Christ. 747. called by Ethelbald King of the Mercians who was then chief King or Monarch as they called him of the English Saxons and at which were present the said King with all his Princes and great Men Malm. de gest pontific as also all the Bishops of this Island but it more plainly appears in the second Council held at the same place called by Beornulf King of Mercia who presided therein Spelman Council p. 332. You will find one of the first things they did was to inquire whether any person had been unjustly dealt with or unjustly spoil'd or opprest whereupon Wulfred Arch-Bishop of Canterbury complain'd of the violence and Avarice of Kenwulf late King of the West Saxons which beingfully proved the said Council ordered Kenedrith the Abbess the daughter and Heir of the said King to make satisfaction to the said Arch-Bishop which was done accordingly out of the Lands of the said King see it at large in Spelmans Councils and Mr. Somner that Learned Antiquary in his Glossary to the decem Scriptores is clearly of opinion Spelman Council pag. 393. that this was all one with a Parliament Synodus magna Parliamentum nuncupatur So likewise the Canons of the Synode or Council of Catchyck Annol were confirmed by Offa King of the Mercians then Chief Monarch of this Island Tam Rex quam Principes sui cum senatoribus terrae decreta signo Cracis firmarunt And further that each of the Kingdoms of the Heptarchy had its particular Councils or Wittena Gemotes appears by that famous Council called by Ethelbert King of Kent about Six Years after his Reception of the Christian Religion which was called commine concilium tam Cleri quam Populi And no doubt this custom came not in with Christianity the Clergy onely here succeeding in the room of the Pogan Priests who among the Germans had always a place in their common Councils as we find in Tacitus See the passage before Cited p. Spelman Con. pag. 126. So likewise the first Laws we have extant were made by Ina King of the West Saxons Per commune concilium assensum omnium Episcoporum Principum Procerum
for who hath greater need of Prudence then he who deliberates of such great Affairs Who of more exact Justice then he who is above the Laws Who of a more severe modesty than he to whom all things are Lawful Who of greater Fortitude than he who keeps all things in safety Yet because the Judgment of any one man in discerning that which truly conduces to the publick safety may be easily deceived neither is there in all Men that strength of mind that they may know how in so great a Liberty to govern their Passions and Lusts as Herodian Li. 1. Cap. 4. well observes that it is difficult in the highest Liberty for a Man to restrain himself as it were to bridle his own desires Therefore it seemed most convenient to divers people not to commit so great a power to one mans sole discretion and he no more free from Errors than others but rather more subject to Vices and therefore would rather prescribe the Prince a certain Form or Method of dispatching of publick Affairs after it was at first found out what sort of constitutions or forms of dispatching publick Affairs did best suit with the Genius of the people and the Nature of the Common-wealth to be constituted Neither is there any injury done to the Prince who was at first raised to that Dignity by the free consent of the people upon those conditions For if it seemed grievous to take the supreme Authority because he could not manage it as he pleased he might have refused it if he would so the Conscience of the Oath by which they are obliged upon their taking this Authority ought to restrain them and their Successors from going about to make themselves absolute by secret Machinations and Designs Much less to subvert the Laws of the Kingdom by force Plin. Paneg. Since an Oath is not more Religiously to be observed by any than he whom it most chiefly concerns not to be perjured For that is too weak which some maintain that since Kings are ordained by God who injoyns them a true discharge of their Duty which cannot be performed without the exercise of the most absolute power and therefore God is to be supposed to have conferred such a proportion of power on all Kings as that they ought not to suffer the least part thereof to be diminished or circumscribed and that the People can neither rightly require or oblige their King to it no more than there can honestly be made such a bargain between a Husband and a Wife that he should connive at her stolen pleasures But as we have already sufficiently proved that as all Civil Government is from God yet is so left in Mans disposal at least to those that God did not give any particular Laws to what sort of Government they would set up as Phil. Melancthon in his Epitomy of Moral Philosophy honestly teaches That the forms of Kingdoms are different and in some places there are some degrees of Liberty more than in others For God approves all Forms of Government that are agreeable to Right Nature and Reason and as I think there is no where any Divine precept extant that a free People being about to chuse it self a King should chuse Cajus rather than Titius no more is there any certain form Divinely establish'd under which and no other Authority is to be conferred on Princes Neither are these Men any way helped by that place of 1 Sam. 8. where some will have only the bare unjust practice of Kings that the true right of all Kings is to be there described But Grotius Lib 1. c. 4. § 3. Taking a middle way lays down that there the bare actions of a King is described yet what hath the effect of a right to wit an Obligation of non resistance So that however a King may act against his Duty when he commits such things yet that his Subject sought no more to resist than if he had acted thus by the highest Right and therefore it is added that the People pressed by those vexations should cry to God because there remained no humane remedies So that this was called the Right of the King in that sence as the Roman Praetor was sayed jus reddere to judg right even then when he decreed unjustly however I conceive the true sence of this place may be thus understood there had been hitherto a Democracy among the Hebrews but that which often resembled that sort of Kingdome which Aristotle calls Heroical The Judges incited by a divine instinct did for the most part rescue the oppressed People from their Enemies or else in Peace Judged Causes but in other matters were rather endued with a power of perswading than commanding but yet their Equipage and State being small was not born or encreased by any Publick Taxes yet the People weary of this Government would have a King after the manner of other Nations That is who should appear in great State and Splendour and should maintain a constant Guard or at least should still exercise his Subjects in Arms that they might still be able to meet their Enemies in the Field see Sam. XIII 2. XIV 48 52. Now Samuel that the People might consider of it soberly before hand lays open to them the Prerogatives of such a King and the inconveniencies of that Government You would have a King remarkable by a great deal of Splendour but such a one must be attended with a numerous Train and so will take your Sons and appoint them for himself and to be his Horsemen and to run before his Chariots You would have a King who should maintain an Army but it will be necessary that he appoint him Captains over Hundreds and Captains over Fifties and this must be of your Sons who were used before to look after your own business only the greatness of his affairs and the state of his Office will not permit this King to till his own Land Therefore of your Sons will he set some to Ear his Ground and Reap his Harvest and to make his Instruments of War and since besides he must need a great deal of Attendance and that it will not become the Dignity of his Wives or Daughters to look after the Houshold-affairs Therefore he will take your Daughters to be Confectioners to be Cooks and to be Bakers he will likewise stand in need of many Servants to dispatch the businesses of War and Peace and who all must have Salaries and therefore he will take your Fields and your Vineyards and your Olive-Yards and give them to your Servants and to this purpose he will take the Tenth of your Seed and of your Vineyards and give to his Officers and to his Servants and he will likewise when he hath need take your Men-servants and your Maid-servants and your young Men and your Asses and put them to his work In short he says no more than this If you will have a King he must be maintained like a King and a
observe a Law Note the Antiquity of of this excellent Law whereby they oblige their Judges by Oath that if the King require an unjust Sentence from them they should refuse him And in the same place it is noted that Antigonus 3. writ to his Cities that if by his Letter he should command anything contrary to his Laws they should not obey it but should think he failed thorough ignorance or misinformation and oftentimes importunate Requests are cluded this way whilst the Prince seems for quietness sake content to grant what he knows will be made void by this Senate or Court of Parliament As it hath been often in France yet when the King is resolved that his Will shall hold good and looks upon the contrary Reasons of this Parliament as not weighty enough to convince him it cannot then any longer contradict the Kings Will for it is not presumed that the King by constituting such a Court would irrevocably abdicate his Right of absolute power So that this Senate or Parliament hath indeed but a Derivative power from the King to be limited as he himself shall please although perhaps he will not exert this power but upon weighty considerations nor does this Court make the power of the King less than absolute since it only gives him occasion to review his own Acts and as it were Appeals from himself when surprised with Passions Prejudices or misinformation to himself in a more indifferent and considerate Temper The like may be said of the Assembly of Estates if they meet only for this purpose that they should be the Kings greatest Council by which the Requests and complaints of his People which often times are concealed in his private Council may come to the Kings ears who is then left free to Enact what he thinks expedient Vid. Gro. Li. 1. c. 3. § 10. But a Kingdom is truely limited when the Subjects at first conferred it on the King on this condition that he should assemble the Estates concerning some Acts without whose consent this Decree should not be valid yet it ought to be in the Kings power to call and dissolve this Assembly and to propose the business to be dispatcht therein unless we should go about to set up an irregular Common-wealth and leave the King no more than an empty Title but if these States being so convocated do of their own accord Propose those things which they conceive conducing to the good and safety of the Kingdom yet the Decrees or Acts constituted concerning them take their force from the Kings passing them Yet such an assembly of Estates do differ from Counsellors properly taken in this that although both of them can only move the King by reason only yet the King may very well reject the Reasons of these latter but not of the former neither ought the King to think himself contemned if these Estates do not consent to some things of his proposing For as he promised at first to have always before his Eyes the good of the Common-wealth of which a great many choice men are supposed to Judg more certainly than one A King may most commonly blame his own imprudence Passions or ill Fortune if the States happen to differ from him from whence it likewise appears that their fear is vain who think that by this means it is at the disposal of the Estates whether the Common-wealth shall be safe or not For it can scarcely be supposed that the King should be so negligent as to omit laying open to his Estates the necessities of the Kingdom or that the Estates being fully satisfied of them will ever go about to betray their own safety But this is certain since those who have conferred the limited power cannot be presumed either to intend to destroy or dissolve the Common-wealth or by their confederacy to order things so that the end of all Common-wealths cannot be obtained in it therefore there ought to be that favourable interpretation made of those Conventions that they really desire the common safety and would by no means do any thing contrary thereunto so likewise in making this compact that whatsoever they have so agreed to they are still to be supposed to have that intention that nothing should be done by reason of those conditions or parts which should prejudice the common safety and publick utility or whereby the Convulsion or Dissolution of the Common-wealth might follow But if such a chance should happen it would be most convenient that if the affair will allow of delay it should be proposed in the Assembly of Estates but where this cannot be done it may be the Kings Duty dexterously to correct those complaints that may break out to the destruction of the Common-wealth which also is of the the same force in respect of publick Laws Pint. in the Life of Agesilaus which the safety of the people and the supream Law commands sometimes to be silent As Agesilaus commanded the Laws of Licurgus to sleep for one day that those might return without ignominy that had fled at the Battel of Levetra However Mr. Hobs will allow no distinction between limited power and absolute but will have all supreme power to be absolute when it is to be observed that in all those assertions which are too rudely laid down by him there is a restriction to be added from the and of all Common-wealths as in what he lays down in his de Cive cap. 5. § 6. that he to whom in a Common-wealth there belongs the right of punishing can by right compel all to all things he pleases or as he expresses this limitation in the same place which are necessary for the common peace and safety and Cap. 6. § 13. when by the right of the supreme Governour he says there is connected so great an obedience of all the Subjects as is requisite for the Government of the Common-wealth so when in the place aforegoing he saith who ever hath so subjected his own will 'to that of the Prince that he may do whatever he pleases without punishment as also make Laws Judg differences punish whom he pleases use the strength power of all men according to his own will perform all these things by the highest right he hath then granted him the greatest power which can be granted But it is now to be considered by what intention or on what grounds men were moved to institute Common-wealths from whence it is clear that no body is understood to have conferred more power by his Will upon the Monarch then a reasonable man can judg necessary to that end and that although the ordering what may conduce to this end in this or that occasion does not remain in those that have transferred their power but in him on whom that power is transferred therefore the supream Ruler can compel the Subjects to all those things which are really condusing to the good of the Common-wealth but he ought not to go about to compel them to
those things that are contrary to the safety of the Common-wealth or against the Laws of Nature And if he endeavours any such thing without doubt he transgresses the bounds of his power Let us also consider the Arguments by which the same Author in his De Cive Cap. 6 § 17. endeavours to prove that all limitation of Soveraign power is absolutely vain he says that assembly which prescribed the Laws to the future King must have had absolute power either habitually or vertually If the Assembly remains constantly or adjourns their Meeting from Time to Time to a certain day and place their power will be perpetual and so the King will not have the Supream power but will be only a bare Magistrate Which we grant to be true if that Assembly can meet by its own Right and Decree of any Affairs of the Common-wealth and that the King be liable to give them an Account of his Actions But if it absolutely dissolve it self unless the Commonwealth be likewise dissolved there must in like manner a power be left somewhere of punishing those that transgress the Laws which without absolute power cannot be performed Which is false as also the Argument by which he would prove it for he who hath granted him by Right so much power that he can compel any of the Subjects by punishments hath so great power that greater cannot be conferred by them But for all this whoever will but consider the end of all Common-wealths and that those Subjects by the submission of their Wills and powers did not immediately become senceless Machines so that since they could grant the use of their united Forces to another upon condition and are able to judg whether this condition be performâ—d or not so they can likewise withdraw their Forces again upon the breach of the condition as likewise this is apparently false that there is no better provision against the abuse of Authority when it is granted limited then when it is left absolute for it is not who that he who hath power enough to defend all Men. which all that are not Fools will easily grant their Prince as also power enough to destroy them The Commands of a General which are sufficient to make the Souldiers stout to venture their Lives against an Enemy yet would be found of no force if he should command them to draw their Swords against each other So that prudent and worthy Princes though absolute will comply with the Genins of their Subjects and â—…t-times will be sparing to urge them too far though for their own advantage when they cannot be compelled to their Duty without some hazard to the Common-wealth But those Subjects are not less discreet who when they are satisfied what is not expedient for their Common-wealth have provided by Fundamental Laws that they should not be compelled to it by their Princes power So far speaks the judicious Mr. Pusendorf upon this Subject which though somewhat prolix I have thought fit to translate verbation because I would not be thought by going about to contract it to put my own sence upon his words and besides I know no man that hath writ more clearly of this Subject in avoiding on one side an absolute despotick Monarchy without falling into that Solacism in Politicks the division of the supreme power which he supposes truly inconsistant with Monarchy So that if the Reader is not satisfied with what I have here writ upon this Subject I am sorry his understanding and mine are not framed alike nor shall be angry with him if he like an absolute Monarchy better then that we live under Provided he will never Act any thing to produce publick disturbances or to introduce it either by force or fraud in this Kingdom Yet shall wish him no greater Prerogative then that of enjoying his own opinion without imposing it upon others who are not yet weary of their Estates and Liberties which since the People of this Nation are not yet weary of The World is wide enough and there are Countries where this which they admire as the primitive Government of the World and that which they perhaps Reverence as the Primitive Religion is practised in its full splendor and indeed are most suitable to each other All the hurt I wish those Gentlemen that they were all setled in any of them even which they like best Whilst all plain hearted English-men notwithstanding such subtile discourses as thofe of our Author are resolved to return the same Answer to them as the Temporal Lords did to the Bishops long since upon another occasion Nolumus Leges Angliae mutari of which I hope there is as little fear as there is or ever will be just occasion for it And so I shall quit my hands of this ungrateful task without troubling my self with his Discourse of Witches Since his other writings sufficiently assure us that whatever he was in other Learning he was no Witch in Politicks though he had Read Aristotle might perhaps be better read in the Fathers and Schoolmen or Civil-Law than in the Laws of Nature or those of his own Countrey FINIS ERRATA PReface Page 2. l. 14. dele not l. 18. hy r. by p. 5. r. despise observe p. 8. l. 32. compore r. compare the p. 15. l. 30. of Fathers r. of a Father l. 31. more true r. more certain l. 36. to r. thereto l. 37. dele without the help and assistance of others p. 24. l. 24. should make r. should have l. 26. in r. or in p. 29. l. 16. dele fourth p. 32. l. 33. d. not p. 37. l. 33. for excellent Pufendorf r. Mr. Pufendorf a late judicious Writer p. 40. l. 17 d. often p. 42. l 20. d. of p. 43. l. 17. ought quit r. ought to puit p. 44. l. 10. for a priviledg r. a liberty l. 21. and if r. for if l. ead have such r. have only such l. 31. fatherly r. or fatherly p. 37. 57. l. 28. puzzle r. distract p. 67. l. 14. require r. acquire l. 32. as I r. and p. 70. l. 13. d. perhaps p. 72. l. 25. d. goods p. 74. l. 5. or at their own dispose include within a Parenthesis p. 77. l. 8. upon r. upon them p. 83. l. 8. on r. than l. 31. r. without any stop after legat l. 32. owe his r. owe its p. 86. l. 32. the r. those l. 35. change r. charge p. 87. l. 29. it is r. they are p. 88. l. 20. his r. this p. 89. l. 6. consting r. consisting p. 90. l. 26. r. representative and d. body p. 92. l. 34. many r. so many p. 93. l. 7. but of r. but part of l. 13. d. from p. 95. l. 16. for an r. but an l. 24. d. hatred p. 99. l. 7. both of d. both p. 102. l. 3. at mans r. a mans p. 107. l. 20. Laws d. s ead l. 1. d. Custome p. 112. l. 32. r. misuse him p. 113. l. 25. most r. many p. 117. l. 30. all