out of France yet our Ancestors the English Saxons had a Meeting which they called The Assembly of the Wise termed in Latine Conventum Magnatum or Proesentia Regis Procerumque Prelaterumque collectorâ—â— The Meeting of the Nobility or the Presence of the King Prelates anâ— Peers Assembled or in General Magnuâ— Concilium or Commune Concilium anâ— many of our Kings in elder times madâ— use of such great Assemblies for to Consult of important Affaires of State aâ— which Meetings in a General sense maâ— be termed Parliaments Great are the Advantages which bâ—â— the King and People may receive by well-ordered Parliament there is nâ—thing more expresseth the Majesty a Supreme Power of a King than such Assembly wherein all his People knowledge him for Soveraign Lord and make all their Addresses to him by humble Petition and Supplication and by their Consent and Approbation do strengthen all the Laws which the King â—â—at their Request and by their Advice and Ministry shall ordain Thus they facilitate the Government of the King by making the Laws unquestionable either to the Subordinate Magistrates or â—refractory Multitude The benefit which â—â—crews to the Subject by Parliaments is That by their Prayers and Petitions Kings are drawn many times to redress their Just grievances and are overcome by their importunity to grant many â—hings which otherwise they would not â—ield unto for the Voice of a Multitude is easilier heard Many Vexations of the People are without the knowledge of the King who in Parliament seeth â—nd heareth his People himself whereas â— other times he commonly useth the â—yes and Ears of other men Against the Antiquity of Parliaments â—e need not dispute since the more anâ—ent they be the more they make for â—e Honour of Monarchy yet there be certain Circumstances touching the Forms of Parliaments which are fit to be considered First we are to remember that until about the time of the Conquest there could be no Parliaments assembled of the General States of the whole Kingdom of England because till those days we cannot learn it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws When Julius Coesar landed he found 4 Kings in Kent and the British Names of Dammonii Durotriges Belgaeâ— Attrebatii Trinobantes Iceni Silures and the rest are plentiful Testimonies oâ— the several Kingdoms of Brittains wheâ— the Romans left us The Saxons divide us into 7 Kingdoms when these Saxonâ— were united all into a Monarchy they had always the Danes their Companions or their Masters in the Empire tiâ— Edward the Confessors Days since whoâ— time the Kingdom of England hath continued United as now it doth But for a Thousand years before we cannot finâ— it was entirely setled during the Timâ— of any one Kings Reign As under thâ— Mercian Law The West Saxons were confined to the Saxon Laws Essex Norfolk Suffolk and some other Places were vexed with Danish Laws The Northumbrians also had their Laws apart And until Edward the Confessors Reign who was next but one before the Conquerour the Laws of the Kingdom were so several and Uncertain that he was forced to Cull a few of the most indifferent and best of them which were from him called St. Edwards Laws Yet some say that Eadgar made those Laws and that the Confessor did but restore and mend them Alfred also gathered out of Mulmutius laws such as he translated into the Saxon Tongue Thus during the time of the Saxons the Laws were so variable that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom 13 A second Point considerable is whether in such Parliaments as was â—n the Saxon's times the Nobility â—nd Clergy only were of those Assemâ—lies or whether the Commons were also called some are of Opinion that â—hough none of the Saxon Laws do mention the Commons yet it may be gathered by the word Wisemen the Commons are intended to be of those Assemblies and they bring as they conceive probable arguments to prove it from the Antiquity of some Burroughs that do yet send Burgesses and from the Proscription of those in Antient Demesne not to send Burgesses to Parliament If it be true that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns yet it may be doubted whether other Kingdoms had the same usage but sure it is that during the Heptarchy the People could not Elect any Knights of the Shire because England was not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Usurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Brittain was the undoubted Heir of the Crown upon whom King John Usurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Usurpation and was Secondly sostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any Natural Liberty of the People for all those Liberties that are claimed in Parliament are the liberties of Grace from the King and not the Liberties of Nature to the People for if the liberty were Natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of
POLITICAL DISCOURSES OF Sir Robert Filmer Baronet VIZ. Patriarcha or the Natural Power of Kings The Free-holders Grand-Inquest Observations upon Aristotles Politicks Directions for Obedience to Government ALSO Observations upon Mr. Hobbs's Leviathan Mr. Milton against Salmatius Hugo Grotius de Jure Belli Pacis Mr. Hunton's Treatise of Monarchy WITH An ADVERTISEMENT to the Jurymen of England touching WITCHES LONDON Printed in the Year M DC LXXX Patriarcha OR THE Natural Power OF KINGS By the Learned Sir ROBERT FILMER Baronet Lucan Lib. â— Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Principe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed and are to be sold by Walter Davis Book-binder in Amen-Corner near Pater-noster-row 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Filmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so Exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the loss of my Preferment in the Church of Westminster which gave me the opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the infelicity than I am at this present in reference to that satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Usurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or Chose Governours 1 ARistotle examined about the Fredom of the People and justisied 2 Suarez disputes against the Regality of Adam 3 Families diversly defined by Aristotle Bodin and others 4 Suarez contradicting Bellarmine 5 Of Election of Kings 6 By the major part of the People 7 By Proxie and by Silent Acceptation 8 No example in Scripture of the Peoples Choosing their King Mr. Hookers judgement therein 9 God governed alwayes by Monarchy 10 Bellarmine and Aristotles judgement of Monarchy 11 Imperfections of the Roman Democratie 12 Rome began her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 VVhether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Historians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judge nor correct their King 18 No Tyrants in England since the Conquest CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1 REgal Authority not subject to Positive Laws Kings were before Laws The Kings of Judah and Israel not tyed to Laws 2 Of Samuel's Description of a King 3 The Power ascribed to Kings in the New Testament 4 VVhether Laws were invented to bridle Tyrants 5 The Benefit of Laws 6 Kings keep the Laws though not bound by the Laws 7 Of the Oaths of Kings 8 Of the Benefit of the Kings Prerogative over Laws 9 The King the Author the Interpreter and Corrector of the Common Laws 10 The King Iudge in all Causes both before the Conquest and since 11 The King and his Councel anciently determined Causes in the Star-Chamber 12 Of Parliaments 13 VVhen the People were first called to Parliaments 14 The Liberty of Parliaments not from Nature but from the Grace of Princes 15 The King alone makes Laws in Parliament 16 He Governs Both Houses by himselfe 17 Or by His Councel 18 Or by His Iudges ERRATA Page 4. line 3. for Calume read Calvin CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of Mankind New Plausible and Dangerous 2 The Question stated out of Bellarmine Some Contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 and from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Usurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and their Agreement SInce the time that School-Divinity began to flourish there hath been a common Opinion maintained as well by Divines as by divers other Learned Men which affirms Mankind is naturally endowed and born with Freedom from all Subjection and at liberty to choose what Form of Government it please And that the Power which any one Man hath over others was at first bestowed according to the discretion of the Multitude This Tenent was first hatched in the Schools and hath been fostered by all succeeding Papists for good Divinity The Divines also of the Reformed Churches have entertained it and the Common People every where tenderly embrace it as being most plausible to
to ordain over themselves a King or Consul or other Magistrates and if there be a lawful Cause the Multitude may change the Kingdom into an Aristocracy or Democracy Thus far Bellarmine in which passages are comprised the strength of all that ever I have read or heard produced for the Natural Liberty of the Subject Before I examine or refute these Doctrines I must a little make some Observations upon his Words First He saith that by the Law of God Power is immediately in the People hereby he makes God to be the immediate Author of a Democratical Estate for a Democracy is nothing else but the Power of the Multitude If this be true not only Aristocracies but all Monarchies are altogether unlawful as being ordained as he thinks by Men whenas God himself hath chosen a Democracy Secondly He holds that although a Democracy be the Ordinance of God yet the people have no power to use the Power which God hath given them but only power to give away their Power whereby it followeth that there can be no Democratical Government because he saith the people must give their Power to One Man or to some Few which maketh either a Regal or Aristocratical Estate which the Multitude is tyed to do even by the same Law of Nature which Originally gave them the Power And why then doth he say the Multitude may change the Kingdom into a Democracy Thirdly He concludes that if there be lawful Cause the Multitude may change the Kingdom Here I would fain know who shall judge of this lawful Cause â—f the Multitude for I see no Body else can then this is a pestilent and dangerous Conclusion 3 I come now to examine that Argument which is used by Bellarmine and â—s the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People It is thus framed That God hath given or ordained Power is evident by Scripture But God hath given it to no particular Person because by Nature all Men are Equal therefore he hath given Power to the People or Multitude To Answer this Reason drawn from the Equality of Mankind by Nature I will first use the help of Bellarmine himself whose very words are these If many men had been together created out of the Earth they all ought to have been Princes over their Posterity In these words we have an Evident Confession that Creation made man Prince of his Posterity And indeed not only Adam but the succeeding Patriarchs had by Right of Father-hood Royal Authority over their Children Nor dares Bellarmie deny this also That the Patriarchs saith he were endowed with Kingly Power their Deeds do testifie for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with subordination to the First Parent whâ— is Lord-Paramout over his Children Children to all Generations as being the Grand-Father of his People 4 I see not then how the Children of Adam or of any man else can be free from subjection to their Parents And this subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself It follows that Civil Power not only in general iâ— by Divine Institution but even the Assignment of it specifically to the Eldest Parents which quite takes away thaâ— New and Common distinction which refers only Power Universal and Absolute to God but Power Respective in regard of the Special Form of Government to the Choice of the people This Lordship which Adam by Comâ—â—nd had over the whole World and Right descending from him the Paâ—â—â—archs did enjoy was as large and â—ple as the Absolutest Dominion of â—y Monarch which hath been since the â—eation For Dominion of Life and â—eath we find that Judah the Father â—onounced Sentence of Death against â—amar his Daughter-in-law for playâ—â—g the Harlot Bring her forth saith 〈◊〉 that she may be burnt Touching â—ar we see that Abram commanded an â—rmy of 318 Souldiers of his own Faâ—ily And Esau met his Brother Jacob â—ith 400 Men at Arms. For matter of â—eace Abraham made a League with â—â—imelech and ratified the Articles with â— Oath These Acts of Judging in Caâ—al Crimes of making War and conâ—â—uding Peace are the chiefest Marks of â—overeignty that are found in any Monarch 5 Not only until the Flood but â—fter it this Patriarchal Power did conâ—â—nue as the very name Patriarch doth â—â— part prove The three Sons of Noah â—ad the whole World divided amongst them by their Father for of them â—â— the whole World over-spread according to the Benediction given to him aâ— his Sons Be fruitful and multiply aâ— replenish the Earth Most of the Civilâ— Nations of the Earth labour to fetâ— their Original from some One of tâ—â— Sons or Nephews of Noah which weâ— scattered abroad after the Confusion Babel In this Dispersion we must certainly find the Establishment of Regâ— Power throughout the Kingdoms of tâ—â— World It is a common Opinion that at thâ— Confusion of Tongues there were â—â— distinct Nations erected all which weâ— not Confused Multitudes without Heaâ—â— or Governours and at Liberty to chooâ—â— what Governours or Government theâ— pleased but they were distinct Families which had Fathers for Rulers over them whereby it appears that even iâ— the Confusion God was careful to preserve the Fatherly Authority by distributing the diversity of Languages according to the diversity of Families for so plainly it appears by the Text First after the Enumeration of the Sonâ— of Japhet the Conclusion is By these â—ere the Isles of the Gentiles divided in their Lands every one after his Tongue after their Families in their Nations so â—t is said These are the Sons of Ham â—fter their Families after their Tongues â—â— their Countreys and in their Nations The like we read These are the Sons of â—hem after their Families after their Tongues in their Lands after their Nations These are the Families of the Sons of Noah after their Generations in their Nations and by these were these Nations divided in the Earth after the Flood In this Division of the World some are of Opinion that Noah used Lots for the distribution of it others affirm he â—ayled about the Mediterranean Sea in Ten years and as he went about appointed to each Son his part and so made the Division of the then known World into Asia Africa and Europe according to the Number of his Sons â—he Limits of which Three Parts are all â—ound in that Midland Sea 6 But howsoever the manner of this Division be uncertain yet it is most certain the Division it self was by Families from Noah and his Children over which the Parents were Heads and Princes Amongst these was Nimrod who nâ— doubt as Sir Walter Raleigh affirms was by good Right Lord or King over his Family yet against Right did hâ— enlarge his Empire by seizing violentlâ— on the Rights of other Lords of Families And
in this sense he may be saiâ— to be the Author and first Founder oâ— Monarchy And all those that do attribute unto him the Original Regal Power do hold he got it by Tyranny oâ— Usurpation and not by any due Election of the People or Multitude oâ— by any Faction with them As this Patriarchal Power continued in Abraham Isaac and Jacob even until the Egyptian Bondage so we find it amongst the Sons of Ismael and Esau Iâ— is said These are the Sons of Ismael and these are their Names by their Castles and Towns Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their families their places by their nations 7 Some perhaps may think that these Princes and Dukes of Families were but â—ome petty Lords under some greater Kings because the number of them are so many that their particular Territories â—ould be but small and not worthy the Tiâ—e of Kingdoms but they must consider â—hat at first Kings had no such large Dominions as they have now adays we find â— the time of Abraham which was about â—00 years after the Flood that in a little â—orner of Asia 9 Kings at once met in Baâ—â—il most of which were but Kings of â—ities apiece with the adjacent Territoâ—es as of Sodom Gomorrah Shinar c. In â—he same Chapter is mention of Melchiseâ—ck King of Salem which was but the Ciâ—â— of Jerusalem And in the Catalogue of â—â—e Kings of Edom the Names of each â—ing's City is recorded as the only Mark â— distinguish their Dominions In the â—and of Canaan which was but a small cirâ—it Joshuah destroyed Thirty one Kings â—nd about the same time Adonibeseck had â—o Kings whose Hands and Toes he had â—t off and made them feed under his Taâ—â—e A few years after this 32 Kings came â— Benhadad King of Syria and about Seventy Kings of Greece went to the Wars of Troy Caesar found more Kings in France than there be now Princes there and at his Sailing over into this Island he found four Kings in our County of Kent These heaps of Kings in each Nation are an Argument their Territories were but small and strongly confirms our Assertion that Erection of Kingdoms came at first only by Distinction of Families By manifest Footsteps we may trace this Paternal Government unto the Israelites coming into Aegypt where thâ— Exercise of Supreme Patriarchal Jurisdiction was intermitted because they were in subjection to a stronger Prince After the Return of these Israelites ouâ— of Bondage God out of a special Caâ— of them chose Moses and Josuah successively to govern as Princes in thâ— Place and Stead of the Supreme Fathers and after them likewise for a time hâ— raised up Judges to defend his People in time of Peril But when God gavâ— the Israelites Kings he reestablished thâ— Antient and Prime Right of Lineal Succession to Paternal Government And whensoever he made choice of any special Person to be King he intended that the Issue also should have benefit thereof as being comprehended sufficiently â—n the Person of the Father although the Father only was named in the Graunt 8. It may seem absurd to maintain that Kings now are the Fathers of their People since Experience shews the contrary It is true all Kings be not the Natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the Natural Parents of the whole People and in their Right succeed to the Exercise of Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers And therefore we find that God told Cain of his Brother Abel His Desires shall be subject â—nto thee and thou shalt rule over him Accordingly when Jacob bought his Brother's Birth-right Isaac blessed him thus Be Lord over thy Brethren and â—et the Sons of thy Mother how before thee As long as the first Fathers of Families lived the name of Patriarchs did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and only the Right of the Father descends to the true Heir then the Title of Prince or King was more Significant to express the Power of him who succeeds only to the Right of that Fatherhood which his Ancestors did Naturally enjoy by this means it comes to pass that many a Child by succeeding a King hath the Right of a Father over many a Gray-headed Multitude and hath the Title of Pater Patriae 9. It may be demanded what becomes of the Right of Fatherhood in Case the Crown does escheate for want of an Heir Whether doth it not then Devolve to the People The Answer is It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir for an Heir there always is If Adam himself were still living and now ready to die it is certain that there is One Man and but One in the World who is next Heirâ— although the Knowledge who should be that one One Man be quite lost 2. This Ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supreme Power is devolved to the Multitude and that they have Power to Rule and Chose what Rulers they please No the Kingly Power escheats in such cases to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the Uniting of great Families or petty Kingdoms we find the greater Monarchies were at the first erected and into such again as into their first Matter many times they return again And because the dependencie of ancient Families is â—oft obscure or worn out of Knowledge â—herefore the wisdom of All or Most Princes have thought fit to adopt many times â—hose for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enobled them or Made them fit and capable of such Reâ—al Favours All such prime Heads and â—athers have power to consent in the uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please And he that is so Elected claims not his Power as a Donative from the People but as being substituted properly by God from whom he receives his Royal Charter of an Universal Father though testified by the Ministry of the Heads of the People If it please God for the Correction of the Prince or punishment of the People to suffer Princes to be removed and others to be placed in their rooms either by the Factions of the Nobility or Rebellion of the People in all sucâ— cases the Judgement of God who haâ—â— power to give and to take away Kingdoms is most just yet the Ministry of men who execute God's Judgment without Commission is sinful and damnable God doth but use and
Election of a Prince Is there any Example of it ever found in the Whole World To conceit such a thing is to â—magine little less than an Impossibility And so by Consequence no one Form of Government or King was ever established according to this supposed Law of Nature 6. It may be answered by some That if either the Greatest part of a Kingdom or if a smaller part only by Themselves and all the Rest by Proxy or if the part not concurring in Election do after by a Tacit Assent ratifie the Act of Others That in all thesâ— Cases it may be said to be the World of the whole Multitude As to the Acts of the Major part oâ— a Multitude it is true that by Politicâ— Humane Constitutions it is oft ordained that the Voices of the most shall over-rule the Bâ—est and such Ordinances bind because where Men are Assembled by an Humane Power that power that doth Assemble them can also Limit and Direct the manner of the Execution of that Power and by such Derivative Power made known by Law or Custom either the greater part or two Thirds or Three parts of Five or the like have power to oversway the Liberty of their Opposits But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no Inferiour Power can alter limit or diminishâ— no One Man nor a Multitude can give away the Natural Right of another The Law of Nature is unchangeable and howsoever One Man may hinder Another in the Use or Exercise of his Natural Right yet thereby No Man â—oseth the Right of it self for the Right â—nd the Use of the Right may be distinguished as Right and Possession are â—oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power â—o over-rule the Rest of the Multitude â—t must follow that the Acts of Multitudes not Entire are not Binding to All but only to such as Consent unto them 7. As to the point of Proxy it cannot be shewed or proved That all those that have been Absent from Popular Elections did ever give their Voices to some of their Fellows I ask but one Example out of the History of the whole World let the Commonweal be but named wherever the Multitude or so much as the Greatest part of it consented either by Voice or by Procuration to the Election of a Prince The Ambition sometimes of One Man sometimes of Many or the Faction of a City or Citizens or the Mutiny of an Army hath set up or put down Princes but they have never tarried for this pretended Order by proceeding of the whole Multitude Lastly if the silent Acceptation oâ— a Governour by part of the People be an Argument of their Concurring iâ— the Election of him by the same Reason the Tacit Assent of the whole Commonwealth may be maintained From whence it follows that every Prince that comes to a Crown either by Succession Conquest or Usurpation may be said to be Elected by the People which Inference is too ridiculous for in such Cases the People are so far from the Liberty of Specification that they want even that of Contradiction 8. But it is in vain to argue against the Liberty of the People in the Election of Kings as long as men are perswaded that Examples of it are to be found in Scripture It is fit therefore to discover the Grounds of this Errour It is plain by an Evident Text that it is one thing to choose a King and another thing to set up a King over the People this latter power the Children of Israel had but not the former This Distinction is found most evidenâ— in Deut. 17. 15. where the Law of God saith Him shalt thou set King over thee whom â—â—e Lord shall choose so God must Eliâ—e and the People only do Constituâ—e Mr. Hooker in his Eighth Book â—f Ecclesiastical Policy clearly expounds â—is Distinction the words are worthy â—â—e citing Heaps of Scripture saith he â—e alledged concerning the Solemn Coroâ—â—tion or Inauguration of Saul David Soâ—mon and others by Nobles Ancients and the people of the Commonwealth of Isrâ—el as if these Solemnities were a kind of Deed whereby the Right of Dominion is given which strange untrue and unnatural conceits are set abroad by â—ed-men of Rebellion only to animate â—nquiet Spirits and to feed them with â—ossibilities of Aspiring unto the Thrones they can win the Hearts of the People whatsoever Hereditary Title any other before them may have I say these â—njust and insolent Positions I would â—ot mention were it not thereby to make the Countenance of â—ruth more Orient For unless we will openly proclaim Defiance unto all â—aw Equity and Reason we must for â—here is no other Remedy acknowledg that in Kingdoms Hereditary Birth-right giveth Right unto Sovereign Dominion and the Death of the Predecessoâ— putteth the Successor by Blood in Sâ—sin Those publick Solemnities before mentioned do either serve for an open Testification of the Inheritor's Right or belong to the Form of induciâ—â— of him into possession of that thing â—â— hath Right unto This is Mr. Hooker Judgment of the Israelites Power tâ— set a King over themselves No doubt but if the people of Israel had had power to choose their King they would never have made Choice of Joas a Child but of Seven years old nor of Manases a Boy of Twelve since as Solomon saith Wo to the Land whose King a Child Nor is it probable they would have elected Josias but a very Child and a Son to so Wicked and Idoâ—trous a Father as that his own Servants murthered him and yet all thâ— people set up this young Josias anâ— slew the Conspirators of the Death oâ— Ammon his Father which Justice of the People God rewarded by making this Josias the most Religious King thaâ— ever that Nation enjoyed 9. Because it is affirmed that â—e People have power to choose as â—ell what Form of Government as â—hat Governours they please of which mind is Bellarmine in those â—aces we cited at first Therefore it necessary to Examine the Strength â— what is said in Defence of popular Commonweals against this Natural Form of Kingdoms which I maintain'd Here I must first put the â—ardinal in mind of what he affirms Cold Blood in other places where saith God when he made all Manâ—d of One Man did seem openly to â—â—nifie that he rather approved the Goâ—â—rnment of One Man than of Many â—â—ain God shewed his Opinion â—â—en he endued not only Men but Creatures with a Natural Propensiâ—â— to Monarchy neither can it be â—â—ubted but a Natural Propensity is be referred to God who is Auâ—â—or of Nature And again in a â—â—ird place What Form of Government God confirmed by his Authoriâ—â— may be gathered by that Commonâ—al which he instituted amongst the Hebrews which was not Aristocratical as
Tragical Slaughter of Citizens at home deserved Commiseration from their vanquished Enemies What though in that Age of her Popularity she bred many admired Captains and Commanders each of which was able to lead an Army â—ough many of them were but ill reâ—â—ited by the People yet all of them â—ere not able to support her in times 〈◊〉 Danger but she was forced in her â—â—eatest Troubles to create a Dictator who was a King for a time thereby giving this Honourable Testimony of Monarchy that the last Refuge in Perils of States is to fly to Regal Authority And though Romes Popular Estate for a while was miraculouâ—â—â—â— upheld in Glory by a greater Prudâ—nce than her own yet in a short time after manifold Alterations she was ruined by her Own Hands Suis ipsa Roma viribus ruit For the Arms she had prepared to conquer other Nations were turned upon her Self and Civil Contentions at last settled the Government again into a Monarchy 13. The Vulgar Opinion is thaâ— the first Cause why the Democratical Government was brought in was to curb the Tyranny of Monarchies But the Falshood of this doth best appear by the first Flourishing Popular Estate of Athens which was founded not because oâ— the Vices of their last King but that his Vertuous Deserts were such as thâ— people thought no man Worthy â—nough to succeed him a pretty waâ—ton Quarrel to Monarchy For wheâ— their King Codrus understood by thâ— Oracle that his Country could not be saved unless the King were slain iâ— the Battel He in Disguise entered hiâ— Enemies Camp and provoked a Common Souldier to make him a Sacrifice for his own Kingdom and with his Death ended the Royal Government for after him was never and more Kings of Athens As Athens thus or Love of her Codrus changed the Government so Rome on the contrary out of Hatred to her Tarquin â—d the like And though these two famous Commonweals did for contrary â—uses abolish Monarchy yet they both agreed in this that neither of them thought it fit to change their State to a Democratie but the one chose â—â—chontes and the other Consuls to â— their Governours both which did â—ost resemble Kings and continued â—â—till the People by lessening the Authority of these their Magistrates did â— degrees and stealth bring in their â—opular Government And I verily beâ—â—â—ve never any Democratical State â—ewed it self at first fairly to the â—orld by any Elective Entrance but â—ey all secretly crept in by the Backâ—â—or of Sedition and Faction 14. If we will listen to the Judgment of those who should best know â—e Nature of Popular Government â— shall find no reason for good men desire or choose it Zenophon that brave Scholar and Souldier disallowed the Athenian Commonweal for that they followed that Form of Government wherein the Wicked are always in greatest Credit and Vertuous men kept under They expelled Aâ—ristides the Just Themistocles died iâ— Banishment Meltiades in Prison Phocion the most virtuous and just man of his Age though he had been chosen forty five times to be their General yet he was put to Death with all his Friends Kindred and Servants by the Fury of the People without Sentence Accusation or any Cause at all Nor were the People of Rome much more favourable to their Worthies they banished Rutilius Metellus Coriolanus the Two Scipio's and Tullyâ— the worst men sped best for as Znophon saith of Athens so Rome was a Sanctuary for all Turbulent Discontented and Seditious Spirits The Impunity of Wicked men was such that upon pain of Death it was forbidden all Magistrates to Condemn to Death or Banish any Citizen oâ— to deprive him of his Liberty or so much as to whip him for what Offence ever he had committed either against â—e Gods or Men. The Athenians sold Justice as they â—d other Merchandise which made â—lato call a Popular Estate a Fair here every thing is to be sold The â—fficers when they entered upon their â—harge would brag they went to a â—olden Harvest The Corruption of â—ome was such that Marius and Pompey durst carry Bushels of Silver to the Assemblies to purchase the â—oices of the People Many Citizens â—der their Grave Gowns came Armâ— into the Publick Meetings as if â—â—ey went to War Often contrary â—ctions fell to Blows sometimes with â—ones and sometimes with Swords â—e Blood hath been suckt up in the â—arket Places with Spunges the Riâ—â—r Tiber hath been filled with the â—ead Bodies of the Citizens and the â—â—mmon Privies stuffed full with them If any man think these Disorders Popular States were but Casual such as might happen under any â—nd of Government he must know that such Mischiefs are Unavoidable and of necessity do follow aâ—â— Democratical Regiments and the Reason is given because the Nature of all People is to desire Liberty without Restraint which cannot bâ— but where the Wicked bear Ruleâ— and if the People should be so indiscreet as to advance Vertuous Men they lose their Power For that Good Men would favour none but the Good which are always the fewer in Number and the Wicked and Vitious which is still the Greateâ— Part of the People should be excluded from all Preferment and iâ— the End by little and little Wise men should seize upon the State and take it from the People I know not how to give a better Character of the People than can be gathered from such Authors as lived Amongst or Near the Popular States Thucydides Zenophon Livâ—â— Tacitus Cicero and Salust have set them out in their Colours I will borrow some of their Sentences There is nothing more uncertain than the People their Opinions are as variable and suddain as Tempests there is neither Truth nor Judgment in them they are not led by Wisdom to judg of any thing but by Violence and Rashness nor put they any Difference between things True and False After the manner of Cattel they follow the Herd that goes before they have a Custom always to favour the Worst and Weakest they are most prone to Suspitions and use to Condemn men for Guilty upon any false Suggestion they are apt to believe all News especially if it be sorrowful and like Fame they make it more in the Believing when there is no Author they fear those Evils which themselves have feigned they are most desirous of New Stirrs and Changes and are Enemies to Quiâ—et and Rest whatsoever is Giddy or Head-strong they account Manlike and Couragious but whatsoever is Modest or provident seems sluggish each man hath a Care of his Particular and thinks basely â—â— the Common Good they look upon Approaching Mischiefs as theâ— do upon Thunder only every maâ— wisheth it may not touch his own Person it is the Nature of theâ— they must Serve basely or Domâ—neer proudly for they know â—â— Mean Thus do they paint to the Life this Beast with many Headâ— Let me give you the Cypher â—â— their Form of Government As it â—â— begot
by Sedition so it is nourished by Arms It can never stand without Wars either with an Enemy abroad or with Friends at Home The only Means to preserve it is to have some powerful Enemies near who maâ— serve instead of a King to Govern it that so though they have not King amongst them yet they may have as good as a King Over them For the Common Danger of an Enemâ— keeps them in better Unity thaâ— the Laws they make themselves 15 Many have exercised their Wits in parallelling the Inconveniences â—f Regal and Popular Government but we will trust Experience before Speculations Philosophical it cannot be â—nyed but this one Mischief of Sedition â—hich necessarily waits upon all Populariâ—â— weighes down all the Inconveniences â—â—at can be found in Monarchy though â—â—ey were never so many It is said â—â—in for Skin yea all that a man hath â—ill he give for his Life and a man â—ill give his Riches for the ransome of â—s Life The way then to examine what â—roportion the mischiefs of Sedition â—nd Tyranny have one to another is â—â— enquire in what kind of Government â—ost Subjects have lost their Lives â—et Rome which is magnified for her Popularity and vilified for the Tyrannical Monsters the Emperours furnish us with Examples Consider-whether the â—ruelty of all the Tyrannical Emperours â—â—at ever ruled in this City did ever â—ill a quarter of the Blood that was pourâ— out in the last hundred years of her â—orious Common wealth The Murthers by Tyberius Domitian and Commodus â—ut all together cannot match that Civil Tragedy which was acted in that one Sedition between Marius and Sylla nay even by Sylla's part alone not to mention the Acts of Marius were fourscore and ten Senators put to death fifteen Consuls two thousand and six hundred Gentlemen and a hundred thousand others This was the Heighth of the Roman Liberty Any Man might be killed that would A favour not fit to be granted under a Royal Government The Miseries of those Licentious Times are briefly touched by Plutarch in these Words Sylla saith he fell to sheding of Bloud and filled all Rome with infinite and unspeakable Murthers This was not only done in Rome but in all the Cities of Italy throughout there was no Temple of any God whatsoever nâ— Altar in any bodies House no Liberty of Hospital no Fathers House which was not embrewed with Blood and horrible Murthers the Husbands were slain in the Wives Armes and the Children iâ— the Mothers Laps and yet they thaâ— were Slain for private Malice were no nothing in respect of those that were Murthered only for their Goods â—e openly Sold their Goods by the â—ryer sitting so proudly in his Chair of â—ate that it grieved the People more see their goods packt up by them to â—hom he gave or disposed them than see them taken away Sometimes he â—ould give a whole Countrey or the â—hole Revenues of certain Cities unto â—omen for their Beauties or to pleaâ—t Jeasters Minstrels or wicked â—ves made free And to some he â—ould give other mens VVives by force â—d make them be Married against their â—lls Now let Tacitus and Suetonius be â—rched and see if all their Cruel Emâ—rours can match this Popular Villaâ—â— in such an Universal Slaughter of Ciâ—ens or Civil Butchery God only â—s able to match him and over-matchâ—him by fitting him with a most reâ—â—rkable Death just answerable to his â—â—e for as he had been the Death of â—ny thousands of his Country-men so many thousands of his own Kindred the flesh were the Death of him for â—died of an Impostume which corruptâ—â— his Flesh in such sort that it turned to Lice he had many about him to Shift him continually Night and Day yet the Lice they wiped from him were nothing to them that multiplied upon him there was neither Apparel Linnen Bathes VVashings nor meat it self but was presently filled with Swarms of this vile Vermine I cite not this to extenuate the Bloody Acts of any Tyrannical Princes nor will I plead in Defence of their Cruelties Only in the Comparative I maintain the Mischiefs to a State to be less Universal under a Tyrant King for the Cruelty of such Tyrants extends ordinarily no further then to some Particular Men that offend him and not to the whole Kingdome It is truly said by his late Majesty King James a King can never be so notoriously Vitious but he will generally favour Justice and maintain some Order except in the particulars wherein his iâ— ordinate Lust carries him away Eveâ— cruel Domitian Dionysius the Tyrant anâ— many others are commended by Historians for great Observers of Justice â— natural Reason is to be rendered for iâ— It is the Multitude of People and the abundance of their Riches which are thâ—â— only Strength and Glory of eveâ— Prince The Bodies of his Subjects do him Service in VVar and their Goods supply his present wants therefore if not out of Affection to his people yet out of Natural Love to Himself every Tyrant desires to preserve the Lives and protect the Goods of his Subjects which cannot be done but by Justice and if it be not done the Princes Loss is the greatest on the contrary in a Popular State every man knows the publick good doth not depend wholly on his Care but the Common-wealth may well enough be governed by others though he tend only his Private Benefit â—he never takes the Publick to be his Own Business thus as in a Family where one Office is to be done by many Servants one looks upon another and every one leaves the Business for his Fellow until it is quite neglected by all nor are they much to be blamed for their Negligence since it is an even Wager their Ignorance is as great For Magistrates among the People being for the most part Annual do always lay down their Office before they understand it so that a Prince of a Duller understanding by Use and Experience must needs excell them again there is no Tyrant so barbarously Wicked but his own reason and sense will tell him that though he be a God yet he must dye like a Man and that there is not the Meanest of his Subjects but may find a means to revenge himself of the Injustice that is offered him hence it is that great Tyrants live continually in base fears as did Dionysius the Elder Tiberius Caligula and Nero are noted by Suetonius to have been frighted with Panick fears But it is not so where wrong is done to any Particular Person by a Multitude he knows not who hurt him or who to complain of or to whom to address himself for reparation Any man may boldly exercise his Malice and Cruelty in all Popular Assemblies There is no Tyranny to be compared to the Tyranny of a Multitude 16 What though the Government of the People be a thing not to be endured much less defended yet many men please themselves with an Opininion that though the People may
not Govern yet they may partake and joyn with a King in the Government and so make a State mixed of Popular and Regal power which they take to be the best tempered and equallest Form of Government But the vanity of this Fancy is too evident it is a meer Impossibility or Contradiction for if a King but once admit the People to be his Companions he leaves to be a King and the State becomes a Democracy at least he is but a Titular and no Real King that hath not the Soveraignty to Himself for the having of this alone and nothing but this makes a King to be a King As for that Shew of Popularity which is found in such Kingdoms â—s have General Assemblies for Consultation about making Publick Laws It must be remembred that such Meetings â—o not Share or divide the Soveraignty with the Prince but do only deliberate and advise their Supreme Head who â—ill reserves the Absolute power in â—imself for if in such Assemblies the â—ing the Nobility and People have â—ual Shares in the Soveraignty then â—e King hath but one Voice the Noâ—lity likewise one and the People one â—â—d then any two of these Voices should have Power to over-rule the third thus the Nobility and Commons together should have Power to make a Law to bind the King which was never yet seen in any Kingdom but if it could the State must needs be Popular and not Regal 17 If it be Unnatural for the Multitude to chuse their Governours or to Govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the Multitude may Correct or Depose their Prince if need be Surely the Unnaturalness and Injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his people either Originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof for either yet by no Law of any Nation can a Contract be thought broken except that first a Lawful Tryal be had by the Ordinary Judge of the Breakers thereof or else every Man may be both Party and Judge iâ— his own case which is absur'd once to be thought for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Government that God hath laid upon them to judge and punish him by whom they should be Judged and punished themselves Aristotle can tell us what Judges the Multitude are in their own case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Judgment of the Multitude in Disposing of the Soveraignty may be seen in the Roman History where we may find many good Emperours Murthered by the People and many bad Elected by them Nero Heliogabalus Otho Vitellius and such other Monsters of Nature were the Minions of the Multitude and set up by them Pertinax Alexander Severus Gordianus Gallus Emilianus Quintilius Aurelianus Tacitus Probus and Numerianus all of them good Emperours in the Judgment of all Historians yet Murthered by the Multitude 18 Whereas many out of an imaginary Fear pretend the power of the people to be necessary for the repressing of the Insolencies of Tyrants wherein they propound a Remedy far worse than the Disease neither is the Disease indeed so frequent as they would have us think Let us be judged by the History even of our own Nation We have enjoyed a Succession of Kings from the Conquest now for above 600 years a time far longer than ever yet any Popular State could continue we reckon to the Number of twenty six of these Princes since the Norman Race and yet not one of these is taxed by our Historians for Tyrannical Government It is true two of these Kings have been Deposed by the people and barbarously Murthered but neither of them for Tyranny For as a learned Historian of our Age saith Edward the Second and Richard the Second were not insupportable either in their Nature or Rule and yet the people more upon Wantonness than for any Want did take an unbridled Course against them Edward the second by many of our Historians is reported to be of a Good and Vertuous Nature and not Unlearned they impute his defects rather to Fortune than either to Council or Carriage of his Affairs the Deposition of him was a violent Fury led by a Wife both Cruel and unchast and can with no better Countenance of Right be justifyed than may his lamentable both Indignities and Death it self Likewise the Deposition of King Richard II was a tempestuous Rage neither Led or Restrained by any Rules of Reason or of State Examin his Actions without a distempered Judgment and you will not Condemne him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing â—â—ither of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Baron's Wars is by good Historians attributed to the stubbornness of the Nobility as the Bloody variance of the Houses of York and Lancaster and the late Rebellion sprung from the Wantonness of the People These three Unnatural Wars have dishonoured our Nation amongst Strangers so that in the Censures of Kingdoms the King of Spain is said to be the King of Men because of his Subjects willing Obedience the King of France King of Asses because of their infinite Taxes and Impositions but the King of England is said to be the King of Devils because of his Subjects often Insurrections against and Depositions of their Princes CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1. REgal Authority not subject to the Positive Laws Kings before Laws the King of Judah and Israel not tyed to Laws 2. Of Samuel 's Description of a King 1 Sam. 8. 3. The Power ascribed unto Kings in the New Testament 4. Whether Laws were invented to bridle Tyrants 5. The Benefit of Laws 6. Kings keep the Laws though not bound by the Laws 7. Of the Oathes of Kings 8. Of the
Benefit of the King's Prerogative over Laws 9. The King the Author the Interpreter and Corrector of the Common Laws 10. The King Judge in all Causes both before the Conquest and since 11. The King and his Council have anciently determined Causes in the Star-Chamber 12. Of Parliaments 13. When the People were first called to Parliament 14. The Liberty of Parliaments not from Nature but from Grace of the Princes 15. The King alone makes Laws in Parliament 16. Governs both Houses as Head by himself 17. By his Council 18. By his Judges 1. HItherto I have endeavour'd to shew the Natural Institution of Regal Authority and to free it from Subjection to an Arbitrary Election of the People It is necessary also to enquire whether Humane Laws have a Superiority over Princes because those that maintain the Acquisition of Royal Jurisdiction from the people do subject the Exercise of it to Positive Laws But in this also they Erre for as Kingly Power is by the Law of God so it hath no inferiour Law to limit it The Father of a Family Governs by no other Law than by his own Will not by the Laws and Wills of his Sons or Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet or all this every Father is bound by the â—aw of Nature to do his best for the preâ—ervation of his Family but much more â— a King always tyed by the same Law of Nature to keep this general ground That the safety of the Kingdom be his â—hief Law He must remember That he profit of every man in particular and of all together in general is not always One and the same and that the Publick is to be preferred before the Private â—nd that the force of Laws must not be â— great as Natural Equity it self which â—nnot fully be comprised in any Laws â—hatsoever but is to be left to the Reâ—â—gious Atchievement of those who â—â—ow how to manage the Affaires of â—tate and wisely to Ballance the particular profit with the Counterpoize of â—e Publick according to the infinite Vaâ—ety of Times Places Persons a proof â—nanswerable for the Superiority of Princes above Laws is this That there were â—ings long before there were any Laws or a long time the Word of a King â—as the only Law and if Practice as â—â—th Sir Walter Raleigh declare the â—eatness of Authority even the best Kings of Judah and Israel were not tyed to any Law but they did what-soever they pleased in the greatest matters 2 The Unlimitted Jurisdiction of Kings is so amply described by Samuel that it hath given Occasion to some to Imagine that it was but either a Plot or Trick of Samuel to keep the Government himself and Family by frighting the Israelites with the mischiefs in Monarchy or else a prophetical Description only of the future III Government of Saul But the Vanity of these Conjectures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy Wherein it is evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must Suffer yet not so that it is Right for Kings to do Injury but it is Right for them to go Unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for Patient Obedience is due to both â—ho Remedy in the Text against Tyrants but in Crying and praying unto God in that Day But howsoever in a Rigorous Construction Samuel's description be applyed to a Tyrant yet the Words by a Benigne Interpretation may agree with the manners of a Just King and the Scope and Coherence of the Text doth best imply the more Moderate or Qualified Sense of the Words for as Sir W. Raleigh confesses all those Inconveniences and Miseries which are reckonâ—ed by Samuel as belonging to Kingly Government were not Intollerable but such as have been born and are still born by free Consent of Subjects towards their Princes Nay at this day and in this Land many Tenants by their Tenures and Services are tyed to the same Subjection even to Subordinate and â—nferior Lords To serve the King in his Wars and to till his ground is not only agreeable to the Nature of Subjects but much desired by them according to their several Births and Conditions The like may be said for the Offices of Women-Servants Confectioners Cooks and Bakers for we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justifyed as necessary at the first Erects on of a Kingdome For those who wiâ—â— have a King are bound to allow hiâ— Royal maintenance by providing Revenues for the CROWN Since it both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in â—iches besides we all know the Lands â—nd Goods of many Subjects may be oftâ—mes Legally taken by the King either â—y Forfeitures Escheat Attainder Outâ—wry Confiscation or the like â—hus we see Samuel's Character of a â—ng may literally well bear a mild â—nse for greater probability there is at Samuel so meant and the Israelites understood it to which this may be â—ded that Samuel tells the Israelites â—s will be the manner of the King that â—ll Reign over you And Ye shall â—â— because of your King which Ye shall â—e chosen you that is to say Thus â—â—ll be the common Custom or Fashiâ— or Proceeding of Saul your King as the Vulgar Latine renders it this â—l be the Right or Law of your King â— meaning as some expound it the â—â—al Event or Act of some individuâ—â—agum or indefinite King that might â—en one day to Tyrannise over them â—hat Saul and the Constant practice Saul doth best agree with the Liteâ— Sense of the Text. Now that Saul â—no Tyrant we may note that the â—le asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King
Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's meaning is in short obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen whereby they Subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the Positive Laws of any Nation Since the Compulsory Power of Laws is that which properly makes Laws to be Laws by binding men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the advice and direction which the Kings Council gives the King which no man says is a Law to the King 4 There want not those who Believe that the first invention of Laws was to Bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in Order Popular Estates could not Subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and though many of their Laws were very Severe and Bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves So the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the people 5. The reason why Laws have been also made by Kings was this when Kings were either busyed with Wars or distracted with Publick Cares so that every private man could not have accesse to their persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered unto him in the Tables of his Laws that so there might be no need to resort to the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things â—eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The people have the Law as a Familiar Admonisher and Interpreter of the King's pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm That â—lthough Laws of themselves do not â—ind Kings yet the Oaths of Kings at â—heir Coronations tye them to keep all â—he Laws of their Kingdoms How far this is true let us but examine the Oath of â—he Kings of England at their Coronation â—he words whereof are these Art thou â—leased to cause to be administred in all thy â—udgments indifferent and upright Justice â—nd to use Discretion with Mercy and Veâ—ity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected â—nd maintained by thee These two are â—he Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-bishop of Canterbury Pleaseth it â—ou to confirm and observe the Laws and â—ustoms of Ancient Times granted from â—od by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity â—y the famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Justice with Discretion and Mercy oâ— as Bracton hath it oequitatem proecipiaâ— misericordiam So that in effect the King doth swear to keep no Laws but such as in His Judgment are Upright and those not literally always but according to Equity of his Conscience join'd with Mercy which is properly the Office of a Chancellour rather than of Judge and if a King did strictly sweat to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Stâ—tute by
Act of Parliament which would be very mischievable to the â—tate But let it be supposed for truth that Kings do swear to observe all the Laws â—f their Kingdoms yet no man can â—hink it reason that Kings should be â—ore bound by their Voluntary Oaths â—han Common Persons are by theirs Now if a private person make a Conâ—ract either with Oath or without Oath he is no further bound than the â—quity and Justice of the Contract ties â—im for a man may have Relief against â—n unreasonable and unjust promise if â—ther Deceit or Errour or Force or â—ear induced him thereunto Or if it be â—urtful or grievous in the performance â—ince the Laws in many Cases give the â—ing a Prerogative above Common Perâ—ons I see no Reason why he should be â—enyed the Priviledge which the meanst of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Wheâ—â—er it be a sin for a Subject to disobey â—e King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Human Laws but even in Divine aâ— thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of the Sabbath is a Divine Law yet if a Master Command his Servant not to go to Church upon a Sabbath-day that 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 and Judge whether his Master Sin or no in so Commanding for there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14. 5. yet it iâ— not fit to tye the Master to acquaint hiâ— Servant with his Secret Counsels or present Necessity And in such Cases thâ— Servants not going to Church become the Sin of the Master and not of thâ— Servant The like may be said of thâ— King's Commanding a man to serve his in the Wars he may not Examine whether the War be Just or Unjust but muâ—â— Obey since he hath no Commission â— Judge of the Titles of Kingdoms Cauâ—es of War nor hath any Subjeâ—â— Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But â—uch men consider not 1. That the Prerogative of a King is to be above all Laws â—or the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some â—re afraid of the Name of Prerogative â—et they may assure themselves the Case â—f Subjects would be desperately miserable without it The Court of Chancery â—t self is but a Branch of the Kings Prerogative to Relieve men against the inâ—xorable rigour of the Law which without it is no better than a Tyrant since â—ummum Jus is Summa Injuria General â—ardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or â—ake them In all Aristocraties the Noâ—es are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power He is but anâ— Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all thing according to his Own Will for he that is called a King according to the Lawâ— makes no kind of Kingdom at all Thâ—â— it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and â—eave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Ulpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Leâ—ibus solutus est The Prince is not bound â—y the Laws 9 If the Nature of Laws be adviâ—edly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior â—ower Laws are divided as Bellermine â—ivides the Word of God into written and unwritten not for that it is not Written at all but because it was not Written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered â—hat for every Custom there was a time â—hen it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands oâ— Kings at first unwritten Nor must we think the Commen Customs which are the Principles oâ— the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivereâ— by Moses there be only certain Principal Laws which did not determine but only direct the High-priest or Magistrate whose Judgment in special Cases â—id determine what the General Law intended It is so with the Common Law for when there is no perfect Rule â—udges do resort to those Principles or Common Law Axiomes whereupon former Judgments in
â—re still Printed amongst them The Statute made for Correction â—f the 12 th Chapter of the Statute of â—locester was Signed under the Great â—eal and sent to the Justices of the â—ench after the manner of a Writ Paâ—â—nt with a certain Writ closed dated â—y the Kings Hand at Westminster reâ—iring that they should do and Execute â—â— and every thing contained in it although the same do not accord with the â—atute of Glocester in all things The Statute of Rutland is the Kings â—tters to his Treasurer and Barons of his â—cchequer and to his Chamberlain The Statute of Circumspecte Agis â—â—s The King to his Judges sendeth â—eeting There are many other Statutes of the â—he Form and some of them which â— only in the Majestique Terms of The â—g Commands or The King Wills or â— Lord the King hath established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meeâ— Proclamations as the Provisions of Merton made by the King at an Assembly oâ— the Prelates and Nobility for the Cornation of the King and his Queen Eleanoâ— which begins Provisum est in Câ—ria Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimoe Prâ—sentationis which was continued and allowed for Law until Tit. West 2. an 13. Eâ—â— 1. cap. 5. which provides the contrary iâ— express words This Provision begins Prâ—visum fuit coram Dom. Rege Archiepiscopiâ— Episcopis Baronibus quod c. It seeâ— Originally the difference was not greâ—â— between a Proclamation and a Statutâ— this latter the King made by Commâ—â— Council of the Kingdom In the form he had but the advice only of his greâ—â— Council of the Peers or of his Privâ—â—â— Council only For that the King had great Council besides his Parliament aâ—pears by a Record of 5. Hen. 4. aboâ—â— an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the King will Assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. Cap. 8. in these Words Forasmuch as the King by the advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Reâ—al Power given him by God may do many things in such Cases should not be driâ—en to extend the Liberties and Supreâ—ity of his Regal Power and Dignity by willfulness of froward Subjects It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a Second Parliament and the Statute made Proclamations of as great validity as if they had been made in Parliament This Law continued until the Government of the State came to be under aâ— Protector during the Minority of Edward the Sixth and in his first year it was Repealed I find also that a Parliament in the 11th year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statutâ— they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damneâ— and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Commission Court affirms that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the 3d Rich. 2. the three Henries 4. 5. 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earles and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted â—y the Commons but that which was done â—herein was done without their Assent 17. How far the Kings Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edward 1. made at His First Parliament General by His Council and by the assent of Bishops Abbots Priors Earles Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the Kings Council for as much as all the King's Council as well Justices as others did agree that they should be put in Writing and observed The Statute of Acton Burnell saith The King for Himself and by His Council hath Ordained and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the King Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the Kings Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and Ordained by the King himself and all his Council The Statute made at York