the Second Point proposed and consider what kinde of Right this is and how far it extends Since therefore the Father's greatest interest in his Child proceeds from his having bred it up and taken care of it and that this Duty is founded on that great Law of Nature that every Man ought to endeavour the common good of Mankinde which he performs as far as lies in his power in breeding up and taking care of his Child it follows that this right in the Child or power over it extends no farther than as it conduces to this end that is the good and preservation thereof and when this Rule is transgressed the Right ceases For God hath not delivered one man into the power of another merely to be tyrannized over at his pleasure but that the person who hath this Authority may use it for the good of those he governs And herein lies the difference between the Interest which a Father hath in his Children and that property which he hath in his Horses or Slaves since his right to the former extends only to those things that conduce to their Good and Benefit but in the other he hath no other consideration but the profit he may reap from their labour and service being under no other obligation but that of Humanity and of using them as becomes a good-natur'd and merciful man yet still considering and intending his own advantage as the principal end of his keeping of them Whereas in his Children he is chiefly to design their good and advantage as far as lies in his power without ruining himself and though he justly may make use of their labour and service while they continue as part of his Family yet it is not for the same end alone that he uses his Horses or Slaves but that his Children being bred up in a constant course of Industry may be the better able either to get their own living or else to spend their time as they ought to do without falling into the Vices of Idleness or Debauchery So that it is evident the Father has no more right over the Life of his Child than another man being as much answerable to God if he abuse this Right of a Father in killing his innocent Son as if another had done it Neither hath he from the same Principles any right to maim or castrate his Child as this Author allows him to do in his Directions for Obedience much less sell him for a Slave Therefore it is no part of the Law of Nature unless he cannot otherwise provide for it but of the Roman or Civil-Law that a Father should have power to sell his Son three times For the Father is appointed by God to meliorate the condition of his Child but not to make it worse since it is not himself but God that properly gave him his being So that I hope I have sufficiently proved there is a great difference between a Child and a Slave or a Servant for Life though this Authour will have them in the state of Nature to be all one But for the better clearing of this point how far the power of Parents over their Children extends I think we may very well divide as Grotius does the life of the Child into three periods or ages De J.B. l. 2. c. 5. § 2. The first is the time of imperfect judgment or before the Child comes to be able to exercise his Reason The second is the period of perfect Judgment yet whilst the Child still continues part of his Fathers Family The third is after he hath left his Father's and either enters into another Family or sets up a Family himself In the first Period all the actions of Children are under the absolute dominion of their Parents for since they have not the use of Reason nor are able to judge what is good or bad for themselves they could not grow up nor be preserved unless their Parents judged for them what means conduced to this end yet this power is still to be directed for the principal end the good and preservation of the Child In the second Period when they are of mature Judgment yet continue part of their Fathers Family they are still under their Fathers command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns and in both these Ages the Father hath a power to set his Children to work as well to enable them to get their own Living as to recompence himself for the pains and care he hath taken and the charge he may have bin at in their Education For though he were obliged by the Law of Nature to breed up his Children yet there is no reason but he may make use of their labour as a natural recompence for his trouble And in this Period the Father hath power to correct his Son if he prove negligent or disobedient since this Correction is for his advantage to make him more careful and diligent another time and to subdue the stubbornness of his Will But in other actions the Children have a power of acting freely yet still with respect of gratifying and pleasing their Parents to whom they are obliged for their Being and Education since without their care they could not have attained to that age But since this Duty is not by force of any absolute Subjection but only of Piety Gratitude and Observance it does not make void any act though done contrary to those Duties as Marriage and the like for the gift of a thing is not therefore void though made contrary to the Rule of Prudence and Frugality In the third Period they are in all actions free and at their own dispose yet still under those obligations of Gratitude Piety and Observance toward their Parents as their greatest Benefactors since if that they have well discharged their Duty toward their Children they can never in their whole lives sufficiently recompence so great benefits as they have received from them But it seems the Authour is not satisfied with these distinctions Observations on Grotius de J. B. p. 62. but saies He cannot conceive how in any case Children can ever 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 them 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 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 For my part I see no
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
in the Fatherhood Vid. Mezeray Abregé Chron. An. 1318. and that the first Kings were Fathers of Families which if granted yet will not prove that this proceeded from that natural perpetual subjection which Children owe their Parents or that because they are Parents they are therefore Lords and Kings over them So that this being the Groundwork of whatever he says in this Discourse p. 67. if this be faulty as I hope I have proved it to be all that he builds upon this foundation signifies nothing Secondly he assumes that this Paternal power cannot be lost it may be transferr'd or usurped but never lost or ceaseth But as the power of the Father may be lawfully transferred or aliened so it may be unjustly usurped and in Vsurpation the Title of the Vsurper is before and better than the Title of any other than him that had a former Right for he hath a possession by the permissive Will of God which permission how long it will last no man ordinarily knows every man is to preserve his own life for the service of God and of his King or Father and is so far to obey an Vsurper as may tend not onely to the preservation of his King and Father but sometimes even of the Vsurper himself when probably he may he thereby preserved to the correction or mercy of his true Superiour And though by humane Law a long Prescription may take away a Right yet divine Right never dies nor can be lost or taken away The same he says p. 70. That in Grants and Gifts that have their original from God or Nature as the power of the Father hath no inferiour power of man can limit nor make any Prescription against them Vpon this ground is built that Maxime That Nullum tempus occurrit Regi no time bars a King Which second assumption is likewise false for I have already proved that all Fatherly power ceases with the life of the Father as Motherly power with the life of the Mother or else in the state of Nature a man must be left like other Cattle to be pickt up and markt by whoever can first seize him And secondly that it is false that this power and authority of a Father can be transferred to or usurped by another or that the Son owes the person to whom his Father transfers or sells him any other duty than as his Assignee performs the Office of a Father towards him Much less that an Usurper acquires any Right over the person of the Son in the state of Nature for otherwise if a Thief should procure strength enough to drive a Master of a separate Family out of doors and so this Rogue could subdue the whole House and set up for Lord and Master of it that then the Wife and Children and Servants were immediately bound to obey him because he hath a possession and is in by the permissive Will of God and so hath a better Right than any body else but the Master himself It is true indeed in this case every Member of this Family is bound to preserve his own life and may yield a passive Obedience to this Rogue for fear of his power and as far as he thinks it will conduce to his preservation but I do not see any obligation he hath from Conscience or Reason to obey this Robber farther than as he cannot help it but may take the first opportunity to drive him out of the House and call in his true Father or Master unless he hath made him any promise to be quiet and not assault him for then he is in the same state with a Prisoner upon parol for all Writers on this subject hold that nothing but a lawful War can give any man a Right over the person of another unless he become his Servant by some voluntary act of his own or otherwise the Slaves taken by the Argter-Pyrates were in a sad case for they were bound in Conscience never to escape without the consent of their Masters Nor upon the Authors principles is there any difference between a Father of a Family in the state of Nature and a Prince since he tells us more than once that a Kingdom is but a large Family And consequently no difference between an Usurper of the Fatherly power and that of a Monarch onely the Rogue that usurped the one could call himself but Master of the Family but the other would stile himself King Emperour o◠Protector Nor will the place of St. Paul Rom. 13. v. 1. oblige any man in this case for though it is said that St. Paul wrote this Epistle Nero an Usurper being Emperour of Rome I deny that Nero was an Usurper for though it is true that Claudius left a Son yet since by the Roman Law a man might make whom he pleased his Son by Adoption which Son so adopted was in all respects looked upon as the true Heir of the adopting Father and Nero was so adopted by Claudius and so being elder than his own Son Germanicus would succeed before him Tacit Annal. 12. c. 25 26. And besides the Adoption being confirmed and passed into a Law by the Senate Nero was as truly Claudius's Son by the Roman Law as Britannicus himself So that an Usurper hath at first no better Right than another For Gods permitting a wicked act to be done as a Banditi or Pyrate to take a man Prisoner does not therefore confer on this Thief or Pyrate any Right over a mans person So that the instance the Author gives p. 73. will not hold That Vsurpers have such a qualified Right to govern as is in Thieves who have stolen Goods and during the time they are possessed of them have a Title in Law against all others but the true Owners and so such Vsurpers to divers intents and purposes may be obeyed For first this is no Law of Nature or Reason but onely a positive Law of England where for the avoiding of perpetual violence and strife and for the better securing of Property they have made possession even in Thieves to confer a Temporary Right against all but the true Proprietor Whereas in the state of Nature a Thief by invading another mans Goods unjustly and taking them away by violence becomes an Enemy to all Mankind and so may lawfully be killed or have what he hath so possessed taken from him by any other Secondly Neither does the parallel between the possession of Goods and that of a Kingdom hold for Goods may be possessed by the first Occupant but Government which is an Authority over the person of a man can never be seized since a man without his own act or consent can never lawfully fall into the power or possession of another as I have already proved So that I know not to what purpose this Treatise of the Authors could serve but to make all men obliged in Conscience to yield not onely a passive but an active Obedience to all the Commands of Cromwel and the
granting that the force of the Government lay in â—he Curiata Comitia or better sort of Citizens yet it was still vertually in the common People who resumed â—t when they would And it was to this whole Body â—f the People that Valerius Publicola used when Conâ—ul to make the Lictors abase his Fasces and in that sufficiently acknowledged where the Soveraign Power â—esided I shall not trouble my self farther to defend the Moâ—el of the Roman Commonwealth which I look upon â—s one of the most unequal and irregular that ever were and if it had not been for the excellent Temper admirable Discipline and exact Education of â—hat People it was impossible it could ever have lasted â—o long In which when they began to grow remiss â—hrough Riches and Luxury their Commonwealth soon fell to pieces being indeed never well compacted â—t first Much less shall I take upon me to defend a Popular Government where the mixt Multitude without any Representatives consult of Affairs or make Laws Any man that will but read Thucydides and Livy will see enough of it As for the Author's Arguments against the Peopleâ— being able to agree to institute any Government aâ— all they are most of them but meer Wrangling and have been answered in the foregoing Observations and so need not be repeated I shall likewise pass by the Author's Directions for Obedience to Government in doubtful times since I have already taken notice of all that is considerable in it CHAP. IV. I Shall therefore in the next place look over his miscellany observations 1 Upon divers modern Authors As for Mr. Hob's Leviathan I shall leave them to decide the controversie as they please and refer it to the readers judgment who hath the better on 't For in many things I think neither of them are in the right only it is a hundred pitties Mr. Hobs did not consult the Author and take in his Patriarcal Hypothesis and then all his rights of exercising Soveraign Tyranny would have gone down well enough But for my part I neither like the foundation nor the building which Mr. Hobs hath set up and therefore shall here leave the Author to build and pull down as he pleases without my intermedling And less shall I take upon me to vindicate Milton since that were at once to defend downright Murder and Rebellion So that I shall turn over to his observations upon Grotius an Author of greater learning and better reputation than either of them Where I shall not trouble my self to defend the manifold distinctions P. 37. and contradictions of the old Civil Lawyers about the Law of Nature and the Law of Nations or whether the natural and Moral law be all one it is sufficient if Grotius's didifinition of the law of Nature be true Nor does it signifie any thing whether the word Law of nature be found in Scripture Yet I think Thomas Aquinas may well enough be defended that there is such a thing too proved from 11. Romans v. 14 15. For though he doth not say expresly that nature is a Law unto them but they are a law unto themselves yet certainly Saint Pauls meaning is to the same For if the Gentiles by nature did the things contained in the law and so were a law unto themselves I know not what else he can mean by their doing by nature the things contained in the law but their living according to the Laws of nature or right reason which all rational men are sensible of as soon as they come of an age able to exert this faculty and so becomes by nature a Law unto themselves neither can this be custom since Saint Paul says they do so by nature c. the things contained in the Law Neither do I see any Reason why Grotius is to be blamed for not taking his Hypothesis concerning the Original of Mankind of Dominion and Property out of Genesis since writing of the rights of Peace and War according to the laws of nature and the general consent of civilised Nations and not according to any revealed Will or Law of God he was not bound nay it was contrary to his purpose to make use of Scripture farther than to confirm what could be made out from natural reason alone for to have done otherwise had been to have written a treatise of cases of Conscience in Divinity and not of right and wrong by the laws of nature So that though he sometimes make use of Texts of Scripture yet it is either to strengthen those or else to answer some objections that may be drawn from thence against his conclusions And therefore he was not obliged to take notice whether God gave a begining to Mankind from one man or more at once since it might if he had pleased have been either way Nor yet did he dream of Adams Monarchy over the whole Creation before he had any Subjects to command nor of his being sole Lord Proprietor and first occupant of all the earth and of all the Creatures in it when neither he nor his Children ever knew nor made any use of the 1000. parts of them these were Notions too fine spun for a man of his solid judgment ever to light on so therefore we must be beholding to our Author and some English Divines for this admirable discovery Yet as I doubt not but if that great man were alive he could well enough defend himself by that great reason and learning he was Master of against what ever this Author or some other lesser Scriblers could reasonably object against a work of that nature yet I doubt not but most of those things the Author observes as errors may be well enough defended by one of far meaner parts and less learning than Grotius himself so that I am not convinced that he either forgets or contradicts himself as our Author will needs have him when he refers alieni abstinentia or abstaining from that which belongs to another P. 59. to consist with a sociable community of all things because says the Author where there is Community there can be neither meum nor tuum nor yet alienum and if there be no alienum there can be no alieni abstinentia and so likewise by the Law of nature men ought to stand to bargains but if all things were common by nature how could there be any bargains In answer to which it will appear that a Propriety of occupancy or the personal possession of things and applying it to the use of one or more men while they have need of it may very well consist with community and is absolutely necessary to the preservation of Mankind As for Example a Theater is in Common to all that have a right of coming thither but no man can say that one place in it is more his than anothers untill he is seated in it and then that place is so much his that whilest the Play lasts no man can without injury put him out of it so likewise supposing
he promised a share of his Conquests which he after made good to them Thus were the Goths Vandals and our Saxon Kingdoms erected by such Generals of Armies who not being Kings at home nor able to subsist there were forced to seek their fortunes abroad which when they had obtained they could have no farther Right over the men they brought with them than what sprung from their mutual Compacts and Consents And as for Proxies as there was no need of them in the instituting of those Commonwealths we read of since taking their Original from all the People of one City or Army they might easily give their Votes themselves but where the People or Masters of Families are more numerous and dispersed than can well meet all together it is impossible upon the Authors Concession of an Escheat of the Crown that ever a new Monarch can be chosen without their making Representatives As for what he says about the silent Acceptation or tacite Consent or non-contradiction of the People no man will say that it alone confers a Right where there was none before as in the case of Conquerours or Usurpers whom perhaps People dare not speak against So likewise a tacite Consent to a Government whether Paternal or Civil justly instituted does confer a Right as I have already granted and shall now farther shew in answer to the Authors Objections The Author urges farther That if Children under years of discretion and Servants are not absolutely and in Conscience obliged to submit to the Votes of their Fathers and Masters in the choice of the Government farther than they receive benefit and advantage by it then every man is at liberty that does not like the Government Anarchy of a mixt Monarchy p. 268. to be of what Kingdom he pleases and so every petty Company hath a Right to make a Kingdom by it self and not onely every City but every Village and every Family nay and every particular man would have a liberty to chuse himself to be his own King if he pleased and he were a madman that being by Nature free would chuse any man but himself to be his Governour and so no man would be tyed to obey the Government farther than he found it for his interest and advantage and consequently would think he might lawfully resist it whenever he found it impose upon him what he did not like or was contrary to his interest In answer to which I grant first That every Possessor of a propriety in Land or Goods in any Government is not onely bound to obey but likewise to maintain it since those that first instituted the Government did likewise tye themselves and all those that should at any time possess those Lands or Goods to the maintenance of the Government which they had establisht And it is just and reasonable that those that claim under such first possessors should if they like to enjoy the Lands or Goods perform the Conditions annexed to them since men may by their own private Deeds much more by a common consent change their Estates with what Conditions they please which those that afterwards come to enjoy the same under their Title are certainly bound in Law and Conscience to make good Secondly As for all others who possessing no share in the Lands or Goods of a Kingdom yet enjoy the common benefits of the Government I conceive they are likewise bound to obey and maintain it as first instituted for the reasons before given So on the other side if they do not like the Government they live under the world is wide enough and they may remove themselves elsewhere for I cannot think that the positive Laws of any Government do oblige any man in Conscience who is not a slave by his own act or fault never to go out of the Country where he was born or can oblige him to return again if he once go out of it or can hinder him from becoming a Subject to another Prince or Common-wealth unless he have taken an Oath of Allegiance to the Prince where he was born and then he is tyed by his Oath not to act any thing contrary thereunto And if one man may do this why not more and so on to an indefinite number But if any Lawyer tells me there is a native Allegiance due by the Laws of divers Countries precedent to any Oath and that in some Countries as anciently in England and in Russia at this day there are Laws that no man shall travel out of the Kingdom without leave I suppose these are but positive Laws and as such bind onely to a submission to the punishment as to forfeiture of Estate or the like but do not bind the Conscience to observe them farther than as it is convinced the thing commanded is more than indifferent in its own nature and conduces to the good of Mankind in general or of the whole Commonwealth in particular Nor indeed was this notion of a native Allegiance known to our Saxon Ancestors since they counted no man an absolute Subject until he was sworn in the Tourn or Court of Frankpledge and was entred into a decenary or Tything And if it be objected that upon these Terms the major part of a people may go away and leave the Government without defence that is not likely nor so much as to be supposed as long as the Country continues habitable and the Government tolerable for the Subjects to live under which if it prove otherwise I see no reason that God should have ordained any Country for a common Bridewel where men should be obliged in Conscience to drudge be oppressed and ill-used all days of their lives without remedy And as for the other part of the bad consequences the Author insists will follow if this natural freedom of Mankind be allow'd for which you may consult his Anarchy of a mixt Monarchy where you will see them at large p. 268 269. Every petty Company hath a Right to make a Kingdom by it self c. I shall answer him as briefly as I can The Author discourses after that rate that one would think if it were not for his Principle of Patriarchal Power men could not subsist his being the foundation of all Civil Government and Property As for the first absurdity that will follow upon the supposal of the Peoples power That any man might be his own King I would ask the Author What if any man being weary of the world will withdraw into some Desert I think he hath then no other Governour than Adam had Nor is this unlawful or else all the ancient Hermits who in times of persecution retired into Deserts sinn'd in so doing But for the absurdities that follow the supposal of a natural state of Freedom As that every particular City or Family may chuse what Government they please if they do not like what is already established I have already granted that where a Commonwealth is established and men are come out of the state of
history and Laws of his Country but very well knows and that this opinion of Englands being a limited Monarchy is no new one but owned to be so by our Kings themselves We may appeal to the last words of Magna Charta it self Concessimus etiam eisdem pro nobis et haeredibus nostris quod nec nos nec haeredes nostri aliquid perquiremus per quod libertates in hac Charta contentae infringantur vel infirmentur Et si ab aliquo contra hoc aliquid perquisitum fuerit nihil valeat et pro nullo habeatur And this his late Majesty of blessed memory who best knew the extent of his own power says in his Declaration from New-market Martij 9. 1641. That the Law to be the measure of his power and if the Laws are the measure of it then his power is limited for what is a Measure but the bounds or limits of the thing measured So likewise in his Answer to both Houses concerning the Militia speaking of the men named by him If more power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by Law first vested in him with power to transfer it to those persons In which passage his Majesty plainly grants that the power of the Crown is limited by Law and that the King hath no other Prerogatives then are vested in him thereby Nor was this any new Doctrine or indicted by persons disaffected to Monarchy and which had but newly come off from the Parliament side by the apparent Justice of his late Majesties Cause as Mr. Hobs in his little Dialogue of the civil wars of England doth insinuate but was the opinion of the ancient Lawyers many hundred years ago Bracton who lived in the time of H. 2. writes thus Li. I. Cap. 8. Ipse autem Rex non debet esse sub homine sed sub Deo et Lege quia Lex facit Regem Attribuit igitur Rex Legi quod Lex attribuit Ei viz. dominationem et potentiam Non est enim Rex ubi dominatur voluntas et non Lex And Li. III Cap. 9. Rex est ubi bene Regit Tyrannus dum populum sibi creditum violenta opprimit dominatione quod hoc sanxit lex humana quod leges ligent suum Laterem if this be law we have a Tyrant as well described as by any difinition in Aristotle Also that the King alone cannot make a Law Li. I. Cap. 1. So likewise the Lord Chancellour Fortescue in his excellent treatise de laudibus Legum Angliae dedicated to Prince Edward only Son to Henry the VI. and certainly writing to him whom it most concerned to know those Prerogatives he might one day enjoy he would not make them less than really they were Cap. 9. He instructs the Prince thus non potest Rex Angliae ad libitum suum mutare Leges Regni sui Principatu namque nedum regali sed et politico ipse suo Populo dominatur Populus enim iis Legibus gubernatur quas ipse fert cum Legis vigorem habeat quicquid de consilio et de consensu Magnatum et Reipublicae communi sponsione authoritate Regis sive Principis praecedente juste fuerit difinitum et approbatum And the Parliament Rol. 18. E. 1. num 41. quoted in Lord Cook 's Inst 4. pt acknowledges the same Homines de Cheshire qui onerati sunt de servientibns Pacis sustentandis petunt exonerari de oneribus Statuti Winton ' c. The Kings Answer was Rex non habet consilium mutandi consuetudines nec statuta revocandi So likewise Cap. 18. speaking of the Laws of England non enim emanant illa à Principis solùm voluntate ut Leges in Regnis quae tantum regaliter gubernantur ubi quandoque statuta ita constituentis procurant commoditatem singularem quod in ejus subditorâ—m ipsum redundant dispendium et jaciuram sed concito reformari possunt dum non sine Communitatis et Procerum regni illius assensu primitus emanarunt so Cap. 13. Et ut non potest caput corperis Physici nervos suos commutare neque membris suis proprias vires et propria sanguinis alimenta denegare nec Rex qui caput est corporis Politici mutare potest Leges corporis illius nec ejusdem Populi substantias proprias substrabere reclamantibus iis an invitis And concludes thus habes jam Princeps institutionis politici Regni formam quam Rex ejus in Leges ipsius aut subditos valeat exercere ad rutelam namque legis subditorum ac eorum corporum et bonorum Rex hujusmodi erectus est et ad hanc potestatem a Populo effluxam ipse habet quo ei non liceat potestate alia suo Populo dominari I had not been so large on a Subject which is so known and evident and which no sober man will deny were it not for two reasons the first is to satisfy Divines and men of other professions who have not leasure to read old Law Books and perhaps may lye under some doubts what the true form of Government of this Kingdom hath ever been and in the next place to confute the Author's Cavil and other mens of his way to the contrary Authority being the best Judge in this Case as Diogenes confuted Zenos's Arguments against motion not by disputeing but walking So now whether the Treatise this Author writes against be but a Platonick Monarchy or a better piece of Poetry than Policy I will not dispute but this much I think I may safely affirm that the Government he describes is not a Creature to be found God be thanked on English ground and for those that so much admire it let them go find it by the banks of Nilus or Ganges where the Sun that late Emblem of universal Monarchy is so indulgent to the Creatures he produces that those which he cannot make grow here beyond an Eut or Adder are there made Crocodiles and Serpents that devour a man at a bit So that if you should stile them the representatives of the Monarchs of those Climates Travellers will say you do not wrong them I shall now proceed to answer the most material Objection of this Authors and not imitate him who in this Treatise passes by all the Arguments which Mr. H. brings to prove that this is no absolute despotick but at least a limited Monarchy as silently as Commentators do hard places that puzle them Let us therefore look back to his Patriarcha where he gives us a distinction of the School-men ' whereby they subject Kings to the directive but not to the coactive power of Laws and is a confession that Kings are not bound by the positive Laws of any Nation Since the compulsory power of Laws of that which properly makes Laws to be Laws by binding men by rewards and punishments to obedience whereas the direction of the Law
is but like the advice and direction which the Kings Councel gives the King which no man says is a Law to the King Igrant this distinction provided the Author will likewise admit another that though the King is not obliged by Laws or to any Judges of them as to Superiors or as to the compulsory Power of them Yet in respect of God and his own Conscience he is still obliged to observe them and not to dispence with them in those cases which the Law does not give him a power so to do and since it is true that it is the rewards and punishments annext that give laws their Sanction therefore there are certain rewards which will naturally bless Princes that keep their Laws such as peace of Conscience Security the affections of their People c. and if I call the contrary effects to these natural punishments that are commonly the consequences of the breach of them I think I should not speak absurdly since the Author himself tells us P. 93. Albeit Kings who make the Laws are as King James there teacheth us above Laws yet will they rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King degenerates into a Tyrant so soon as he seems to rule it is there printed in the Copy according which is nonsence contrary to his Laws and certainly a Tyrant can never promise himself security either from his own Conscience or from Men but whereas he says the direction of the Law is only like the advice which the Kings Councel gives him which no man says is a Law to him is false for the Kings Councel should never advise him to do that which he cannot whith a safe Conscience perform but the Kings Conscience can never advise him to break those Laws that are the boundaries between his Prerogatives and the Peoples just Rights and therefore though it is true in some cases where the King sees the Law rigorous or doubtful he may mitigate or interpret the Execution thereof by his Judges to whom he hath made over that power in the intervalls of Parliament and though perhaps some particular Statutes may be his Authority be suspended for causes best known to himself and Council Yet this does not extend to Laws of publick concernment and for that I will appeal to the Conscience of any true Son of the Church of England whether he thinks for Example that the Proclamation for indulgence contrary to the Statute made against Conventicles were binding or no Neither is this that follows consistent with what the Author hath said before That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good will and for good Example or so far forth as the general Law of the safety of the Commonwealth doth naturally bind him For in such sort only positive Laws may may be said to bind the King not by being positive but as they are naturally the best and only means for the preservation of the Common-wealth So that if a King thinks any the firmest and most indispensible Laws that have been made suppose Magna Charta or the Statute de Tallagio non concedendo for example not to be for the safety of the Commonweal it is but his declaring that he will have them no longer observed and the work is done nor will this that follows help it though true that all Kings even Tyrants and Conquerors are bound to preserve the Lands Goods Liberties and lives of all their Subjects not by any Municipal Laws so much as the natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the publick Good of the Subjects All which is very well but if this Monarch thus succeeding in the place of the natural Father is the sole Judge of what things are necessary for the common good what if he have a mind to keep these Children for Children and subjects slaves are all one with this Authour as some unnatural Fathers do as cheap as they can or to make the most of them will let them enjoy no more but the scanty necessaries of life and will think fair water brown bread and wooden shooes sufficient for a Farmer and 300 l. or 400 l. per annum enough in Conscience for a Country Gentleman or desiring to be absolute and therefore to have a constant standing Army to raise mony with as some Monarchs do and being resolved that for the future all the just rights and priviledges of his Clergy Nobility and People shall signifie nothing will take all the over-plus of his Childrens Estates eaving them no more then a poor and miserable subsistence he may lawfully do what he will with his own and it is all his upon the first intimation of his pleasure by Edict or Proclamation But perhaps some honest Divine may start up and tell him he will be damned for thus abusing his power or breaking his Coronation Oath what What if this Father of his people shall laugh at him for a fool and think himself too cunning to believe any such thing or what if his Son or Successor be resolved not to run his head any more into the snare of a Coronation Oath but finding himself invested in all the absolute power of his Predecessour without any unjust act of his own since we know Princes seldome loose any thing they have once got will exercise it as he pleases for his own humour or glory and thinks himself not obliged in Conscience to restore any of those rights his Predecessor hath ursuped upon his People I know not what benefit this may be to the Prince but this I am sure of it would very little mend the Subjects condition to be told their former Monarch was damned or that this may follow him when they are now slaves nor is this a mere Chimera since a Neighbouring people over against us lost their liberties by much such a kind of proceeding And therefore this Authour hath found out a very fit interpretation of the Kings Coronation Oath Vide Iuramenta Regis quando coronatur old Stat. ed 1556. for whereas he used to Swear that he will cause equal and upright justice to be administred in all his judgments and to use discretion with mercy and truth according to his power and that the just Laws and customes quas vulgus elegerit I will not translate it shall chuse to be observed to the honour of God Yet our Author will have the King obliged to keep no laws but what he in his discretion Judges to be upright which is to make the Oath signifie just nothing as I have proved already wherein he abominably perverts the sense of this Oath for that which he puts first is really last And the words by which he Swears to observe the Laws and customes granted by King Edward and other his Predecessors are absolute and without
Anno 125. But to return to our Author from whom I have a little degressed I think he is mistaken in affirming all Power which enables in some cases a Man to resist or oppose his Governors must be Authoritative and Civil Therefore I shall put the same case again which I did about the beginning of these Observations concerning the Natural Power of Fathers Suppose a Son cannot otherwise preserve his own Life or that of his Mother or Brothers from the rage of his mad or drunken Father but by holding him or binding him if need be I suppose no reasonable Man will deny the lawfullness of this action and yet this Power over his Fathers Person is not Authoritative or Civil but Moral and which the Son does exercise not as Superior to his Father but as a Rational Creature obliged by the Laws of Nature to preserve his own being and to endeavour the good preservation of his Parents and Relations not against Paternal Authority which is always Rational and for the good of the Family but Brutish Irrational force Which God gives every Man a right to judg of so likewise if a Prince prove either a Madman or a stark Fool the power which their Subjects exercise in the ordering him or confining him and appointing Regents or Protectors to Govern for him and in his Name is not Authoritative or Civil since the Prince himself who is the Fountain of all Authority gave them no such power and therefore must be Natural or Moral or residing in them as reasonable Creatures And of this we have had divers examples Thus the French were forced to confine their Mad King Charles VI. and appoint his Queen to be Regent during his Distraction So likewise Joan Queen of Castile falling Distracted upon the Death of Her Husband King Philip I. Her Father Ferdinand governed in Her right and after His decease Her Son Charles afterwards Emperor she continuing bereft of her understanding was admitted King of Castile And what hath been done lately in Portugal is so notorious that it needs not a particular Recital So then Mr. Hs. expression That this is a Moral Judgment residing in reasonable Creatures and lawful for them to execute may not seem so absurd as to imply what our Author endeavours to draw from thence that Authoritative and Civil Judgment does not reside in reasonable Creatures nor can be Lawfully executed since a Reasonable Creature may be endued with another Power of acting precedent to that of the Civil So I shall likewise leave it to the Judgment of the impartial Reader whether this conclusion fits so well with Anarchy as the Author will have it As also whether Mr. H. take away all Government by leaving every Man to his own Conscience to judg when the Prince oppresses him for else how could he sue for relief to the Prince himself and so all actions a Prince did or commanded would be just and lawful though never so contrary to Reason or positive Law And so there would be truly as Mr. Hobs asserts no other measure of good and evil right or wrong but the Princes will But as I have no where maintained with Mr. H. in his Treatise which our Author writes against that ours is a mixt Monarchy though limited by Law and therefore shall not maintain as he does the King to be one of the Three Estates according to the Opinions held during the late Wars So on the other side that there is and ever hath been such a Government as a mixt Monarchy in some Countreys I hope I have made out notwithstanding what this Author says to the contrary and that these might more properly be called a mixt Monarchy then mixt Aristocracy or mixt Democracy Since all Governments of this kind take their denomination from the most Honourable and Predominant part in it in whom the Executive or Authoritative part resides And though perhaps some of these Governments may not seem so firm so regular and well constituted as others it does not therefore follow that they are meer Anarchies or that all mixtures and limitations of Monarchy are vain or unlawful as our Author imagines For a further proof of which I will not give you may own sence alone but likewise of that eminent Civil Lawyer Mr. Pufendorf now or very lately Gretian Professor in the University of Vpsal in his excellent work De Jure Naturae Gentium Dedicated to Charles the 10th now King of Sweden and certainly holding a place of such profit and Credit in his Dominions he would be too prudent to speak any thing prejudicial to Monarchy or contrary to the Government of Sweden in particular But to return to the matter in the above-mentioned Treatise which for the benefit of those that cannot easily procure the Latine Original Lib. 7. Cap. 5. where speaking before of the several kinds of mixt Governments or Common-wealths § 14. He expresses himself to this purpose as near as I can Translate it Yet however as I will not envy the commendation of constancy in any that will obstinately maintain the name of a mixt Common-wealth to those sorts of Government he had before recited So it seems to us more ready and easie for the demonstrating divers Phaenomena in certain Common-wealths if we rather call those irregular Common-wealths in which neither one alone of the three irregular Forms is found neither an absolute Disease or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 takes place and which yet cannot be strictly referred to distinct confederate States Concerning which it is generally to be observed that they depart in this from a regular Common-wealth whilst in them all things do not seem to proceed as it were from one Soul and will neither to be governed by one Common Authority Yet they diffor from the confederate State in that they are not compounded of distinct and perfect Common-wealths as these are Yet they are far from those things that they count Diseases in a Common-wealth because a Disease that always carries with it as it were a shameful and unallowable pretence since it proceeds from â—he evil administration of a good Form of Government or from Laws and Institutions ill contrived and put together Whereas this irregularity does not only intrinsically affect the very Form it self but also being publickly and lawfully establish'd dares shew it self openly and without shame So that a Disease ought to be supposed as not intended by those who first Instituted this Common-wealth since the irregularity arose or was Confirmed from the will or approbation of those of whom the Government was at first Constituted as a building is one thing whose design agrees with the Rules of Architectture but either its materials are naught or else thorough the carelesness of the Dwellers the Roof gapes and the Walls are ready to fall and another thing where a Model though differing from the common Rules of Building is dedesigned by the Owner or Architect himself Lastly some of these irregularities may have continued from the