which Natural Reason appoints all men to use is the Law of Nations saith Theophilus in the Text of the Civil Law and in the second Book of the Instit cap. 1. Jus Naturae is confounded with Jus Gentium As the Civilians sometimes confound and sometimes separate the Law of Nature and the Law of Nations so other-whiles they make them also contrary one to the other By the Law of Nature all men are born free Jure naturali omnes liberi nascuntur But Servitude is by the Law of Nations Jure Gentium Servitus invasit saith Vlpian And the Civil Law not only makes the Law of Nature and of Nations contrary but also will have the Law of Nations contrary to it self War saith the Law was brought in by the Law of Nations Ex jure gentium introducta bella and yet the Law of Nations saith Since Nature hath made us all of one Kindred it follows it is not lawful for one man to lye in wait for another Cùm inter nos cognitionem quandam natura constituit consequens est hominem homini insidiari nefas esse saith Florentinus Again the Civil Law teacheth that from the Law of Nature proceeds the Conjunction of man and woman the Procreation and Education of Children But as for Religion to God and Obedience to Parents it makes it to be by the Law of Nations To touch now the Canon Law we may find in one place that men are governed either by the Law of Nature or by Customs Homines reguntur Naturali jure aut moribus The Law of Nations they call a Divine Law the Customs a humane Law Leges aut divinae sunt aut humanae divinae naturâ humanae moribus constant But in the next place the Canon Law makes Jus to be either Naturale aut Civile aut Gentium Though this Division agree in Terms with that of Vlpian in the Civil Law yet in the Explication of the Terms there is Diversity for what one Law makes to belong to the Law of Nature the other refers to the Law of Nations as may easily appear to him that will take the Pains to compare the Civil and Canon Law in these Points A principal Ground of these Diversities and Contrarieties of Divisions was an Error which the Heathens taught that all things at first were common and that all men were equal This mistake was not so heinous in those Ethnick Authors of the Civil Laws who wanting the Guide of the History of Moses were fain to follow Poets and Fables for their Leaders But for Christians who have read the Scriptures to dream either of a Community of all things or an Equality of all Persons is a Fault scarce pardonable To salve these apparent Contrarieties of Community and Property or Equality and Subjection the Law of Jus Gentium was first invented when that could not satisfie to mend the matter this Jus Gentium was divided into a Natural Law of Nations and an Humane Law of Nations and the Law of Nature into a Primary and a Secondary Law of Nature Distinctions which make a great sound but edifie not at all if they come under Examination If there hath been a time when all things were common and all men equal and that it be otherwise now we must needs conclude that the Law by which all things were common and men equal was contrary to the Law by which now things are proper and men subject If we will allow Adam to have been Lord of the World and of his Children there will need no such Distinctions of the Law of Nature and of Nations For the Truth will be that whatsoever the Heathens comprehended under these two Laws is comprised in the Moral Law That the Law of Nature is one and the same with the Moral may appear by a Definition given by Grotius The Law of Nature saith he is the Dictate of Reason shewing that in every Action by the agreeing or disagreeing of it with natural Reason there is a moral Honesty or Dishonesty and consequently that such an Action is commanded or forbidden by God the Author of Nature I cannot tell how Grotius would otherwise have defined the Moral Law And the Canon Law grants as much teaching that the Law of Nature is contained in the Law and the Gospel Whatsoever ye will that men do c. Mat. 7. The Term of Jus Naturae is not originally to be found in Scripture for though T. Aquinas takes upon him to prove out of the 2. to the Romans that there is a Jus Naturae yet St. Paul doth not use those express Terms his words are The Gentiles which have not the Law do by Nature the things contained in the Law these having not the Law are a Law unto themselves He doth not say Nature is a Law unto them but they are a Law unto themselves As for that which they call the Law of Nations it is not a Law distinct much less opposite to the Law of Nature but it is a small Branch or Parcel of that great Law for it is nothing but the Law of Nature or the moral Law between Nations The same Commandment that forbids one Private man to rob another or one Corporation to hurt another Corporation obliges also one King not to rob another King and one Commonwealth not to spoil another the same Law that enjoyns Charity to all men even to Enemies binds Princes and States to shew Charity to one another as well as private Persons And as the Common or Civil Laws of each Kingdom which are made against Treason Theft Murder Adultery or the like are all and every one of them grounded upon some particular Commandment of the moral Law so all the Laws of Nations must be subordinate and reducible to the moral Law The Law of Nature or the moral Law is like the main Ocean which though it be one entire Body yet several Parts of it have distinct Names according to the diversity of the Coasts on which they border So it comes to pass that the Law of Nations which is but a part of the Law of Nature may be sub-divided almost in infinitum according to the Variety of the Persons or Matters about which it is conversant The Law of Nature or the divine Law is general and doth only comprehend some Principles of Morality notoriously known of themselves or at the most is extended to those things which by necessary and evident Inference are consequent to those Principles Besides these many other things are necessary to the well governing of a Common-wealth and therefore it was necessary that by Humane Reason something more in particular should be determined concerning those things which could not be defined by Natural Reason alone hence it is that Humane Laws be necessary as Comments upon the Text of the Moral Law and of this Judgment is Aquinas who teacheth that necessitas legis humanae manat ex eo quod Lex naturalis vel Divina generalis est solum
complectitur quaedam principia morum per se nota ad summum extenditur ad ea quae necessaria evidenti elatione ex illis principiis consequuntur praeter illa verò multa alia sunt necessaria in republica ad ejus rectam Gubernationem ideo necessarium fuit ut per humanam rationem aliqua magis in particulari determinarentur circa ea quae per solam rationem naturalem definiri non possunt Ludo. Molin de Just. Thus much may suffice to shew the Distractions in and between the Civil and Common Laws about the Law of Nature and Nations In the next place we are to consider how Grotius distinguisheth these Laws To maintain the Community of things to be Natural Grotius hath framed new Divisions of the Law of Nature First in his Preface to his Books De Jure Belli Pacis he produceth a Definition of the Law of Nature in such doubtful obscure and reserved Terms as if he were diffident of his Undertaking Next in his first Book and first Chapter he gives us another Distribution which differs from his Doctrine in his Preface In his Preface his Principle is that the Appetite of Society that is to say of Community is an Action proper to man Here he presently corrects himself with an Exception that some other Creatures are found to desire Society and withal he answers the Objections thus that this Desire of Society in brute Beasts comes from some external Principle What he means by Principium intelligens extrinsecum I understand not nor doth he explain nor is it material nor is the Argument he useth to any purpose for admitting all he saith to be true yet his Principle fails for the Question is not from what Principle this Desire of Society proceeds in Beasts but whether there be such a Desire or no. Besides here he takes the Appetite of Society and Community to be all one whereas many live in Society which live not in Community Next he teacheth that the keeping of Society custodia Societatis which in a rude manner saith he we have now expressed is the fountain of that Law which is properly so called I conceive by the Law properly so called he intends the Law of Nature though he express not so much And to this appetite of Sociable Community he refers Alieni Abstinentia but herein it may be he forgets himself for where there is Community there is neither meum nor tuum nor yet alienum and if there be no alienum there can be no alieni abstinentia To the same purpose he saith that by the Law of Nature men must stand to bargains Juris naturae sit stare pactis But if all things were common by Nature how could there be any bargain Again Grotius tells us that from this signification of the Law there hath flowed another larger which consists saith he in Discerning what delights us or hurts us and in judging how things should be wisely distributed to each one This latter he calls the looser Law of Nature the former Jus Sociale the Law of Nature strictly or properly taken And these two Laws of Nature should have place saith he though men should deny there were a a God But to them that believe there is a God there is another Original of Law beside the Natural coming from the free Will of God to the which our own Vnderstanding tells us we must be subject Thus have I gathered the Substance of what is most material concerning the Law of Nature in his Preface If we turn to the Book it self we have a division of the Law into Jus Naturale Voluntarium Divinum Humanum Civile Latiùs patens Seu Jus Gentium Arctiùs patens Seu Paternum Seu Herile In the Definition of Jus Naturale he omits those Subtleties of Jus Naturae propriè dictum and quod laxius ita dicitur which we find in his Preface and gives such a plain Definition as may fitly agree to the Moral Law By this it seems the Law of Nature and the Moral Law are one and the same Whereas he affirmeth That the Actions about which the Law of Nature is conversant are lawful or unlawful of themselves and therefore are necessarily commanded or forbidden by God by which mark this Law of Nature doth not only differ from humane Law but from the Divine voluntary Law which doth not command or forbid those things which of themselves and by their own nature are lawful or unlawful but makes them unlawful by forbidding them and due by commanding them In this he seems to make the Law of Nature to differ from Gods Voluntary Law whereas in God Necessary and Voluntary are all one Salmasius de Vsuris in the twentieth Chapter condemns this Opinion of Grotius though he name him not yet he means him if I mistake not In the next place I observe his saying That some things are by the Law of Nature not propriè but reductivè and that the Law of Nature deals not only with those things which are beside the Will of Man but also with many things which follow the act of Man's Will so Dominion such as is now in Vse mans Will brought in but now that it is brought in it is against the Law of Nature to take that from thee against thy will which is in thy Dominion Yet for all this Grotius maintains That the Law of Nature is so immutable that it cannot be changed by God himself He means to make it good with a Distinction Some things saith he are by the Law of Nature but not simply but according to the certain state of things so the common use of things was natural as long as Dominion was not brought in and Right for every man to take his own by Force before Laws were made Here if Grotius would have spoken plain instead of but not simply but according to the certain State of Things he would have said but not immutably but for a certain Time And then this Distinction would have run thus Some things are by the Law of Nature but not immutably but for a certain time This must needs be the naked Sense of his Distinction as appears by his Explication in the Words following where he saith That the common Vse of Things was natural so long as Dominion was not brought in Dominion he saith was brought in by the will of man whom by this Doctrine Grotius makes to be able to change that Law which God himself cannot change as he saith He gives a double ability to man first to make that no Law of Nature which God made to be the Law of Nature And next to make that a Law of Nature which God made not for now that Dominion is brought in he maintains it is against the Law of Nature to take that which is in another man's dominion Besides I find no Coherence in these Words By the Law of Nature it was right for every man to take his own by force before Laws
common Good Another Doctrine of Grotius is That the Empire which is exercised by Kings doth not cease to be the Empire of the People that Kings who in a lawful Order succeed those who were elected have the supreme Power by an usufructuary Right only and no Propriety Furthermore he teacheth That the People may chuse what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. cap. 3. Also That the People chusing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private Men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiors is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us He rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition That in some places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion That People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right And you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this That the People may grant away their Power without retaining any part But what is this to what the People have done For though the People may give away their Power without reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his favour the point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged That in all presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings part who are in possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the Peoples labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an instant without any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius That although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implied that it was upon condition to be well governed and that the Non-performance of that implied Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said That the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected That he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be That by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say That it is by any necessity of the Law of Nature or by any positive Law of God he teacheth That non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth only approve it ut humanum and humano modo He tells us further That Populus potest eligere qualem vult gubernationis formam ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they may make temporary Kings as Directors and Protectors jus
also to study always to please their Parents But since this Duty is not by force of any moral faculty as those former are but only of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing is void being made by any Owner whatsoever against the rules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the power of a Parent doth so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith The Son is in all things Free and of his own Authority always that Duty remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws only which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth That the power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith That the power over the Son or Daughter to dissolve Vows was not perpetual but did endure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three ways Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Vsufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdom That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title only make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth only put the Conquerour in possession of his old Right but not create a new The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdom which gives a Form to the Kingdom but a Continuation of the old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right only for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he hath a Title it is an unjust War that takes the Kingdom from him If he hath no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule That where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the Judgment of Grotius But if it be admitted that he that attempts to conquer hath a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Vbi Judicia deficiunt incipit Bellum Lib. 2. cap. 1. And thus upon the matter I cannot find in Grotius's Book De Jure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est quâ se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2.
Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where the King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicit Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lye at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Justice and Discretion in Mercy and Truth in all His Judgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Judgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the Assenting unto or granting any new Laws but of holding protecting and strengthening with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom it would not make him a King nor give him Power to make one Law a Negative Voice is but a privative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogism of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The Reason is plain why the Kings Negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Justice of England to the Opinion of him that calls himself an utter Barrister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Justices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of our Lord the King is to be expected seeing it is His part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Judge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Vice-roy of God and that he hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of his People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Jurisdictions c. We Will that Our Jurisdiction be above all the Jurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have Power to yield or cause to be yielded such Judgments as do appertain without other Process wheresoever we know the right Truth as Judges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the Authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lambard puts us in mind of a Saxon Law of King Edgar's Nemo in lite Regem appellato c. Let no man in Suit appeal unto the King unless he cannot get Right at home but if that Right be too Heavy for him then let him go to the King to have it eased By which it may evidently appear that even so many years ago there might be Appellation made to the Kings Person whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of this Realm out of which Law Master Lambard gathers that the King himself had a High Court of Justice wherein it seemeth He sate in Person for the words be Let him not seek to the King and the same Court of the King did judge not only according to meer Right and Law but also after Equity and good Conscience For the Close I shall end with the Suffrage of our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Justitia solius Regis est c. All Justice of the Kingdom is only the King 's and He alone if He were able should administer it but that being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remiss and so oft Wrong instead of Right will be done if we stand to strict Law also Causes hard and difficult daily arise which are comprehended in no Law-books in those there is a necessity of running back to the King the Fountain of Justice and the Vicegerent of God himself who in the Commonwealth of the Jews took such Causes to His own cognisance and left
made since by the Law of Nature no man had any thing of his own and until Laws were made there was no Propriety according to his Doctrine Jus Humanum voluntarium latius patens he makes to be the Law of Nations which saith he by the Will of All or Many Nations hath received a power to bind he adds of Many because there is as he grants scarce any Law to be found common to all Nations besides the Law of Nature which also is wont to be called the Law of Nations being common to all Nations Nay as he confesseth often That is the Law in one part of the World which in another part of the World is not the Law of Nations By these Sentences it seems Grotius can scarce tell what to make to be the Law of Nations or where to find it Whereas he makes the Law of Nations to have a binding Power from the Will of men it must be remembred That it is not sufficient for men to have a Will to bind but it is necessary also to have a Power to bind Though several Nations have one and the same Law For instance Let it be granted that Theft is punished by Death in many Countries yet this doth not make it to be a Law of Nations because each Nation hath it but as a Natural or Civil Law of their own Country and though it have a binding Power from the Will of many Nations yet because each Nation hath but a Will and Power to bind themselves and may without prejudice consent or consulting of any Neighbour-Nation alter this Law if they find Cause it cannot properly be called the Law of Nations That which is the foundation of the Law of Nations is to have it concern such things as belong to the mutual Society of Nations among themselves as Grotius confesseth and not of such things as have no further relation than to the particular Benefit of each Kingdom For as private men must neglect their own Profit for the Good of their Country so particular Nations must sometimes remit part of their Benefit for the Good of many Nations True it is that in particular Kingdoms and Commonwealths there be Civil and National Laws and also Customs that obtain the Force of Laws But yet such Laws are ordained by some supreme Power and the Customs are examined judged and allowed by the same supreme Power Where there is no Supreme Power that extends over all or many Nations but only God himself there can be no Laws made to bind Nations but such as are made by God himself we cannot find that God made any Laws to bind Nations but only the Moral Law as for the Judicial Law though it were ordained by God yet it was not the Law of Nations but of one Nation only and fitted to that Commonwealth If any think that the Customs wherein many Nations do consent may be called the Law of Nations as well as the Customs of any one Nation may be esteemed for National Laws They are to consider That it is not the being of a Custom that makes it lawful for then all Customs even evil Customs would be lawful but it is the Approbation of the supreme Power that gives a legality to the Custom where there is no Supreme Power over many Nations their Customs cannot be made legal The Doctrine of Grotius is That God immediately after the Creation did bestow upon Mankind in general a Right over things of inferiour Nature From whence it came to pass that presently every man might snatch what he would for his own Vse and spend what he could and such an Vniversal Right was then instead of Property for what every one so snatched another could not take from him but by Injury How repugnant this Assertion of Grotius is to the Truth of Holy Scripture Mr. Selden teacheth us in his Mare Clausum saying That Adam by Donation from God Gen. 1.28 was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children and by Donation and Assignation or some kind of Cession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City This Determination of Mr. Selden's being consonant to the History of the Bible and to natural Reason doth contradict the Doctrine of Grotius I cannot conceive why Mr. Selden should afterwards affirm That neither the Law of Nature nor the Divine Law do command or forbid either Communion of all things or private Dominion but permitteth both As for the general Community between Noah and his Sons which Mr. Selden will have to be granted to them Gen. 9.2 the Text doth not warrant it for although the Sons are there mentioned with Noah in the Blessing yet it may best be understood with a Subordination or a Benediction in Succession the Blessing might truly be fulfilled if the Sons either under or after their Father enjoyed a Private Dominion it is not probable that the private Dominion which God gave to Adam and by his Donation Assignation or Cession to his Children was abrogated and a Community of all things instituted between Noah and his Sons at the time of the Flood Noah was left the sole Heir of the World why should it be thought that God would dis-inherit him of his Birth-right and make him of all the men in the World the only Tenant in Common with his Children If the Blessing given to Adam Gen. 1.28 be compared to that given to Noah and his Sons Gen. 9.2 there will be found a considerable Difference between those two Texts In the Benediction of Adam we find expressed a subduing of the Earth and a Dominion over the Creatures neither of which are expressed in the Blessing of Noah nor the Earth there once named it is only said The fear of you shall be upon the creatures and into your hands are they delivered then immediately it follows Every moving thing shall be meat for you as the green herb The first Blessing gave Adam Dominion over the Earth and all Creatures the latter allows Noah liberty to use the living Creatures for food here is no alteration or diminishing of his Title to a Propriety of all things but an Enlargement only of his Commons But whether with Grotius Community came in at the Creation or with Mr. Selden at the Flood they both agree it did not long continue Sed veri non est simile hujusmodi communionem diu obtinuisse is the confession of Mr. Selden It seems strange that Grotius should maintain that Community of all things should be by the Law of Nature of which God is the Author and yet such Community should not be able to continue Doth it not derogate from the Providence of God Almighty to ordain a Community which
could not continue Or doth it make the Act of our Fore-fathers in abrogating the natural Law of Community by introducing that of Propriety to be a sin of a high presumption The prime Duties of the Second Table are conversant about the Right of Propriety but if Propriety be brought in by a Humane Law as Grotius teacheth then the Moral Law depends upon the Will of man There could be no Law against Adultery or Theft if Women and all things were common Mr. Selden saith That the Law of Nature or of God nec vetuit nec jubebat sed permisit utrumque tam nempe rerum communionem quà m privatum Dominium And yet for Propriety which he terms primaeva rerum Dominia he teacheth That Adam received it from God à Numine acceperat And for Community he saith We meet with evident footsteps of the Community of things in that donation of God by which Noah and his three Sons are made Domini pro indiviso rerum omnium Thus he makes the private Dominion of Adam as well as the common Dominion of Noah and his Sons to be both by the Will of God Nor doth he shew how Noah or his Sons or their Posterity had any Authority to alter the Law of Community which was given them by God In distributing Territories Mr. Selden saith the consent as it were of Mankind passing their promise which should also bind their Posterity did intervene so that men departed from their common Right of Communion of those things which were so distributed to particular Lords or Masters This Distribution by Consent of Mankind we must take upon Credit for there is not the least proof offered for it out of Antiquity How the Consent of Mankind could bind Posterity when all things were common is a Point not so evident where Children take nothing by Gift or by Descent from their Parents but have an equal and common Interest with them there is no reason in such cases that the Acts of the Fathers should bind the Sons I find no cause why Mr. Selden should call Community a pristine Right since he makes it but to begin in Noah and to end in Noah's Children or Grand children at the most for he confesseth the Earth à Noachidis seculis aliquot post diluvium esse divisam That ancient Tradition which by Mr. Selden's acknowledgment hath obtained Reputation every where seems most reasonable in that he tells us That Noah himself as Lord of all was Author of the Distribution of the World and of private Dominion and that by the appointment of an Oracle from God he did confirm this Distribution by his last Will and Testament which at his Death he left in the hands of his eldest Son Sem and also warned all his Sons that none of them should invade any of their Brothers Dominions or injure one another because from thence Discord and Civil War would necessarily follow Many Conclusions in Grotius his Book de Jure Belli Pacis are built upon the foundation of these two Principles 1. The first is That Communis rerum usus naturalis fuit 2. The second is That Dominium quale nunc in usu est voluntas humana introduxit Upon these two Propositions of natural Community and voluntary Propriety depend divers dangerous and seditious Conclusions which are dispersed in several places In the fourth Chapter of the first Book the Title of which Chapter is Of the War of Subjects against Superiours Grotius handleth the Question Whether the Law of not resisting Superiours do bind us in most grievous and most certain danger And his Determination is That this Law of not resisting Superiours seems to depend upon the Will of those men who at first joyned themselves in a Civil Society from whom the Right of Government doth come to them that govern if those had been at first asked if their Will were to impose this burthen upon all that they should chuse rather to dye than in any case by Arms to repel the Force of Superiours I know not whether they would answer That it was their Will unless perhaps with this addition if Resistance cannot be made but with the great disturbance of the Common-wealth and destruction of many Innocents Here we have his Resolution that in great and certain danger men may resist their Governours if it may be without disturbance of the Common-wealth if you would know who should be Judge of the greatness and certainty of the Danger or how we may know it Grotius hath not one word of it so that for ought appears to the contrary his mind may be that every private man may be Judge of the Danger for other Judge he appoints none it had been a foul Fault in so desperate a piece of Service as the resisting of Superiours to have concealed the lawful Means by which we may judge of the Greatness or Certainty of publick Danger before we lift up our hands against Authority considering how prone most of us are to censure and mistake those things for great and certain Dangers which in truth many times are no dangers at all or at the most but very small ones and so flatter our selves that by resisting our Superiours we may do our Country laudable Service without Disturbance of the Common-wealth since the Effects of Sedition cannot be certainly judged of but by the Events only Grotius proceeds to answer an Objection against this Doctrine of resisting Superiours If saith he any man shall say that this rigid Doctrine of dying rather than resisting any Injuries of Superiours is no humane but a Divine Law It is to be noted that men at first not by any Precept of God but of their own Accord led by Experience of the Infirmities of separated Families against Violence did meet together in Civil Society from whence Civil Power took beginning which therefore St. Peter calls an humane Ordinance although elsewhere it be called a divine Ordinance because God approveth the wholesom Institutions of men God in approving a humane Law is to be thought to approve it as humane and in a humane manner And again in another place he goeth further and teacheth us That if the Question happen to be concerning the primitive Will of the People it will not be amiss for the People that now are and which are accounted the same with them that were long ago to express their meaning in this matter which is to be followed unless it certainly appear that the People long ago willed otherwise lib. 2. cap. 2. For fuller Explication of his Judgment about resisting Superiors he concludes thus The greater the thing is which is to be preserved the greater is the Equity which reacheth forth an Exception against the words of the Law yet I dare not saith Grotius without Difference condemn either simple men or a lesser part of the People who in the last Refuge of Necessity do so use this Equity as that in the mean time they do not forsake the Respect of the
none can deny That they differed in their degrees of punishments is possible there are but three sorts that can be proved were to be put to death viz. the Witch the Familiar Spirit the Wisard As for the Witch there hath been some doubt made of it The Hebrew Doctors that were skill'd in the Laws of Moses observe that wheresoever one was to dye by their Law the Law always did run in an affirmative Precept as the man shall be stoned shall dye shall be put to death or the like but in this Text and no where else in Scripture the sentence is only a Prohibition negative Thou shalt not suffer a Witch to live and not Thou shalt put her to death or stone her or the like Hence some have been of opinion that not to suffer a Witch to live was meant not to relieve or maintain her by running after her and rewarding her The Hebrews seem to have two sorts of Witches some that did hurt others that did hold the eyes that is by jugling and slights deceived mens senses The first they say was to be stoned the other which according to the proper notation of the word was the true Witch was only to be beaten The Septuagint have translated a Witch an Apothecary a Druggister one that compounds poisons and so the Latin word for a Witch is Venefica a maker of poisons if any such there ever were or be that by the help of the Devil do poison such a one is to be put to death though there be no Covenant with the Devil because she is an Actor and Principal her self not by any wonder wrought by the Devil but by the natural or occult property of the Poyson For the time of Christ saith Mr. Perkins though there be no particular mention made of any such Witch yet thence it followeth not that there were none for all things that then happened are not recorded and I would fain know of the chief Patrons of them whether those persons possessed with the Devil and troubled with strange Diseases whom Christ healed were not bewitched with some such people as our Witches are If they say no let them if they can prove the contrary Here it may be thought that Mr. Perkins puts his Adversaries to a great pinch but it doth not prove so for the Question being only whether those that were possessed in our Saviour's Time were bewitched The Opposers of Mr. Perkins say they were not bewitched but if he or any other say they were the Proof will rest wholly on him or them to make good their Affirmative it cannot in reason be expected that his Adversaries should prove the Negative it is against the Rules of Disputation to require it FINIS Patriarcha OR THE Natural Power OF KINGS· By the Learned Sir ROBERT FILMER Baronet Lucan Lib. 3. Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Poincipe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed for Ric. Chiswell in St. Paul's Church-Yard Matthew Gillyflower and William Henchman in Westminster Hall 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Fylmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which Respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the Loss of my Preferment in the Church of Westminster which gave me the Opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the Infelicity than I am at this present in reference to that Satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or chose Governours 1 ARistotle examined about the Freedom of the People and justified 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 for the Peoples chosing their King Mr. Hooker's Judgment therein 9 God governed always by Monarchy 10 Bellarmine and Aristotles judgment of Monarchy 11 Imperfections of the Roman Democratie 12 Rome legan her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 Whether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Hystorians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judg not 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
or Free-hold of their Liberties Thirdly I must not detract from the Worth of all those Learned Men who are of a contrary Opinion in the Point of Natural Liberty The profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable neither Aristotle in Philosophy nor Hooker in Divinity They are but men yet I reverence their Judgments in most Points and confess my self beholding to their Errors too in this something that I found amiss in their Opinions guided me in the discovery of that Truth which I perswade my self they missed A Dwarf sometimes may see that which a Giant looks over for whilest one Truth is curiously searched after another must necessarily be neglected Late Writers have taken up too much upon Trust from the subtile School-Men who to be sure to thrust down the King below the Pope thought it the safest course to advance the People above the King that so the Papal Power might take place of the Regal Thus many an Ignorant Subject hath been fooled into this Faith that a man may become a Martyr for his Countrey by being a Traytor to his Prince whereas the New-coyned distinction of Subjects into Royallists and Patriots is most unnatural since the relation between King and People is so great that their well-being is so Reciprocal 2 To make evident the Grounds of this Question about the Natural Liberty of Mankind I will lay down some passages of Cardinal Bellarmine that may best unfold the State of this Controversie Secular or Civil Power saith he is instituted by Men It is in the People unless they bestow it on a Prince This Power is immediately in the whole Multitude as in the Subject of it for this Power is in the Divine Law but the Divine Law hath given this Power to no particular Man If the Positive Law be taken away there is left no Reason why amongst a Multitude who are Equal one rather than another should bear Rule over the rest Power is given by the Multitude to one man or to more by the same Law of Nature for the Commonwealth cannot exercise this Power therefore it is bound to bestow it upon some One Man or some Few It depends upon the Consent of the Multitude 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 Democrasy 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 a lawful Cause the Multitude may change the Kingdom Here I would fain know who shall judg of this lawful Cause If 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 is 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 succeding Patriarchs had by Right of Father-hood Royal Authority over their Children Nor dares Bellarmine deny this also That the Patriarchs saith he were endowed with Kingly Power their Deeds do testify 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 who is Lord-Paramout over his Childrens 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 is by Divine Institution but even the Assignment of it Specifically to the eldest Parents which quite takes away that 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 Command had over the whole World and by Right descending from him the Patriarchs did enjoy was as large and ample as the Absolutest Dominion of any Monarch which hath been since the Creation For Dominion of Life and Death we find that Judah the Father pronounced Sentence of Death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abraham commanded an Army of 318 Souldiers of his own Family And Esau met his Brother Jacob with 400 Men at Arms. For matter of Peace Abraham made a League with Abimilech and ratify'd the Articles with an Oath These Acts of Judging in Capital Crimes of making War and concluding Peace are the chiefest Marks of Sovereignty that are found in any Monarch 5 Not only until the Flood but after it this Patriarchal Power did continue as the very Name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World over-spread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the Earth
by any Rules of Reason or of State Examine his Actions without a distempered Judgment and you will not Condemn him to be exceeding either Insufficient or Evil weigh the Imputations that were objected against him and you shall find nothing either of any Truth or of great moment Hollingshed writeth That he was most Unthankfully used by his Subjects for although through the frailty of his Youth he demeaned himself more dissolutely than was agreeable to the Royalty of his Estate yet in no Kings Days were the Commons in greater Wealth the Nobility more honoured and the Clergy less wronged who notwithstanding in the Evil-guided Strength of their will took head against him to their own headlong destruction afterwards partly during the Reign of Henry his next Successor whose greatest Atchievements were against his own People in Executing those who Conspired with him against King Richard But more especially in succeeding times when upon occasion of this Disorder more English Blood was spent than was in all the Foreign Wars together which have been since the Conquest Twice hath this Kingdom been miserably wasted with Civil War but neither of them occasioned by the Tyranny of any Prince The Cause of the Barons 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 Oaths 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 endeavoured 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 err 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 for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the safety of the Kingdom be his Chief Law He must remember That the 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 And that the force of Laws must not be so great as natural Equity it self which cannot fully be comprised in any Laws whatsoever but is to be left to the Religious Atchievement of those who know how to manage the Affairs of State and wisely to Ballance the particular Profit with the Counterpoize of the Publick according to the infinite variety of Times Places Persons a Proof unanswerable for the superiority of Princes above Laws is this That there were Kings long before there were any Laws For a long time the Word of a King was the only Law and if Practice as saith Sir Walter Raleigh declare the Greatness of Authority even the best Kings of Judah and Israel were not tied to any Law but they did whatsoever they pleased in the greatest Matters 2. The Unlimited 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 ill 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 no 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 reckoned 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 Inferiour 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
Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these Words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems St. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carried a Sword Wilt thou not be afraid of the Power that is the Ruler that carrieth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And St. Paul concludes for this Cause pay you Tribute also for they are God's Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to God's Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this Place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lord's sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoyneth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to manifest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a speaking Law he cannot mean that Kings themselves are an humane Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are humane Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Grammatical Construction Him the Relative must be referred to the next Antecedent which is King besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's Meaning is in short Obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor St. Paul intended other Form of Government than only Monarchical much less any Subjection of Princes to humane Laws That familiar Distinction of the School-men 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 assoon 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 tho 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 busied with Wars or distracted with publick Cares so that every private Man could not have Access 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 to him in the Tables of his Laws that so there might be no need to resort unto the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The People have the Law as a Familiar Admonisher and Interpreter of the King's Pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King 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-weal 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
King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that he might have always at hand Able Men for his Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Process of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malicious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Process yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw 1. Cap. 5. did provide That the Chancellour and Justices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's answer was He thought it not reasonable that He should be constrained to send for his Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Outrages the Common Law cannot have duly her Course in such case the Counsel for the Party Also in the 13 th Year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpaena's other Writs grounded upon false Suggestions the King answered That he would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time our good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denial for the present by a Phrase peculiar for the King 's denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and his Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Freehold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regality or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded James Audley to