sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants oâ—… Ministers of the King are privileged and protected much in the same Nature The Servants in houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice have a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars or are imployed on forreign Affairs for him are protected from Actions and Sutes Nay the Kings Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edw. Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of volumus for stay of Suits others with a Clause of Nolumus for the safety of mens Persons Servants and Goods and the Kings Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it untill the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgesse for Plymouth going to the Parliament House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Iohns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Iudges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrestâ—… is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney
is void being made by any Owner whatsoever against the â—…ules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the Power of a Parent dâ—…th so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith the Son is in all things Free and of his own Authority always that Duâ—… remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are alwayes bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws onely which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the Permission of the transcendent Fatherly power of the Supreme Prince Children may be dispensed with or privileged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth that the Power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith that the Power over the Son or Daughter to dissolve Vows was not perpetual but did indure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three wayes Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Usufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdome That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title onely make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth onely put the Conquerour in possession of his old Right but not create a New The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdome which gives a Form to the Kingdom but a Continuation of the Old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right onely for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are Free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he have a Title it is an unjust War that takes the Kingdom from him If he have no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule that where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the judgment of Grotius But if it be admitted that he that attempts to conquer have a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Ubi Iudicia deficiunt incipit Bellum Lib. 2. c. 1. And thus upon the matter I cannot find in Grotius's Book de Iure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est qua se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2. c. 5. If Subjection be the Gift of the People how can Supreme Power pleno Iure in full Right be got by a just War As to the other means whereby Kings may get Supreme Power in full Right of Propriety Grotius will have it to be when some People for avoiding a
Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
shall be respited untill our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John untill he hath other commandement from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The cognisance and Punishment of his Offence did of common Right and antient Custom of the Realm of England solely and wholly belong to Our Lord the King and no other Le cognisance punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisbe by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint Her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Iudicial Power exercised in the Chamber of Peers is merely derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life onely or during pleasure or good behaviour and also annexeth to those Honours the Power of having Votes in Parliament as hereditary Counsellours furnished with ampler Privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural equality and freedom of mankind which many conceive to be the foundation of the Privileges and Liberties of the House of Commons there is so strong an opposition between the liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal jarring had they been raised upon such opposite foundations But the truth is the Liberties and Privileges of both Houses have but one and the self same foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The décisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is alwayes Arbitrary for that is Arbitrary which hath no Superiour on Earth to controlâ—… it The last Appeal in all Government must still bâ—… to an Arbitrary Power or else Appeals will bâ—… in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our dayes is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath Made these Acts Ordinances and Statutes which He Willeth to be Observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do hurt damage or grievance â—…o any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by force any Maid within age 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be â—…bserved within this Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the Citizens of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed and in the 3. Chap. Our Lord the King hath ordained that a woman after the Death of her Husband shal recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 Hen. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintifs Atturney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcell of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the Kings Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues an counseil comment ils voilent que nous devomus faire nous volums faire autrement nient en oest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet lie confesseth that by their Writ they have Power both to treat and to give Councel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with Us the Prelates Great men and Peers to treat and give your Counsel The words of the Judges Writ are that you be present with Us and others of the Counsel and sometimes with Us only to treat and give your Counsel The Judges usually joyned in Committees with the Lords in all Parliaments even in Queen Eliz. Reign untill her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have Liberty in the upper House it self upon Leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the Manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges who are to inform them what the Law is and to direct them in their Iudgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Iudges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31. Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain iâ—… Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyâ—… the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop 〈◊〉 Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes there Sir Iohn Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion wâ—… delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath 〈◊〉 Vote at all no more than in other Courts of ministerial Iurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with Him in giving Judgement But if by no Vote is meant he hath no Power to judge we dispoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King to judge them if the dernier resoâ—… be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifâ—… Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not be lawful for any to consecrate either Houses Grounds Altars or any other things without the Determinatin of the People Domitius Aenobarbus another Tribune enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or admission from the Colledge thus by a Committee of seven Tribes taken out of thirty five the ancient Form of Religion was alter'd and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a popular estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War l. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Ianus shut after the end of the first Punique War but not so long as for one year but for some Moneths It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius 〈◊〉 Augustus Caesar only for one Summer the Bowels 〈◊〉 Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone soils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthagâ—… the Beginning of which War Sir Walter Raleigâ—… proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kinghâ—… Power of the Consuls who as Livy saith had the same Royal Iurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensignes of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shewes of Government the Popular which served only to raise Seditions and Discords within the Walls whilest the Regal atchieved the Conquests of Foreign Nations and Kingdomes Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still Resort to the Creation of a Dictator who for the time was an absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no Security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the
it from one or more of the General Assembly but the forming penning or framing it into a Law is committed to a few because a great number of persons cannot without tedious and dilatory Debates examine the Benefits and Mischiefs of a Law Thus in the very first Beginning the Intention of a general Assembly is frustrated then after a Law is penned or framed when it comes to be questioned whether it shall pass or nay though it be Voted in a full Assembly yet by the Rules of the Assembly they are all so tyed up and barred from a free and full Debate that when any man hath given the Reasons of his Opinion if those Reasons be argued against he is not permitted to reply in Justification or Explanation of them but when he hath once spoken he must be heard no more which is a main Denial of that Freedome of Debate for which the great Assembly is alleaged to be ordained in the high Point of Legislative Power The same may be said touching the executive Power if a cause be brought before a great Assembly the first thing done is to referr or commit it to some few of the Assembly who are trusted with the examining the Proofs and Witnesses and to make Report to the general Assembly who upon the Report proceed to give their Judgments without any publick hearing or interrogating the Witnesses upon whose Testimonies diligently examined every man that will pass a conscientious judgment is to rely Thus the legislative and executive Power are never truly practised in a great Assembly the true Reason whereof is if Freedom be given to Debate never any thing could be agreed upon without endless Disputes meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees Those Governments that seem to be popular aâ—… kinds of petty Monarchies which may thus appear Government is a Relation between the Governours and the governed the one cannot be without the other mutuò se ponunt auferunt where a Command or Law proceeds from a major part there those individual Persons that concurred in the Vote are the Governours because the Law is only their Will in particular the Power of a major Part being a contingent or casual thing expires in the very Act it self of voting which Power of a major part is grounded upon a Supposition that they are the stronger part when the Vote is past these Voters which are the major part return again and are incorporated into the whole Assembly and are buried as it were in that Lump and no otherwise considered the Act or Law ordained by such a Vote loseth the Makers of it before it comes to be obeyed for when it comes to be put in Execution it becomes the Will of those who enjoyn it and force Obedience to it not by Virtue of any Power derived from the Makers of the Law No man can say that during the Reign of the late Queen Elizabeth that King Henry the 8th or Edward the sixth did govern although that many of the Laws that were made in those two former Princes times were observed and executed under her Government but those Laws though made by her Predecessours yet became the Laws of her present Government who willed and commanded the Execution of them and had the same Power to correct interpret or mitigate them which the first makers of them had every Law must always have some present known Person in Being whose Will it must be to make it a Law for the Present this cannot be said of the major part of any Assembly because that major part instantly ceaseth as soon as ever it hath voted an infallible Argument whereof is this that the same major part after the Vote given hath no Power to correct alter or mitigate it or to Cause it to be put in Execution so that he that shall act or cause that Law to be executed makes himself the Commander or willer of it which was originally the Will of others It is said by Mr. Hobs in his Leviathan page 141. nothing is Law where the Legislator cannot be known for there must be manifest Signs that it proceedeth from the Will of the Sovereign there is requisite not only a Declaration of the Law but also sufficient Signs of the Author and the Authority That Senate or great Councel wherein it is conceived the supreme or legislative Power doth rest consists of those Persons who are actually Subjects at the very same time wherein they exercise their legislative Power and at the same Instant may be guilty of breaking one Law whilest they are making another Law for it is not the whole and entire Will of every particular Person in the Assembly but that part onely of his Will which accidentally falls out to concurr with the Will of the greater part So that the Sharers of the legislative Power have each of them perhaps not a hundreth part of the legislative Power which in it self is indivisible and that not in Act but in Possibility only in one particular Point for that Moment whilst they give their Vote To close this Point which may seem strange and new to some I will produce the Judgment of Bodin in his sixth Book of a Commonweal and the fourth Chapter his words are The chief Point of a Commonweal which is the Right of Sovereignty cannot be nor insist to speak properly but in Monarchy for none can be Sovereign in a Commonweal but one alone if they be two or three or more no one is Sovereign for that no one of them can give or take a Law from his Companion and although we imagine a Body of many Lords or of a whole People to hold the Sovereignty yet hath it no true Ground nor Support if there be not a Head with absolute Power to unite them together which a simple Magistrate without Sovereign Authority cannot do And if it chance that the Lords or Tribes of the People be divided as it often falls out then must they fall to Arms one against another and although the greatest part be of one Opinion yet may it so happen as the lesser part having many Legions and making a Head may oppose it self against the greater Number and get the Victory We see the Difficulties which are and always have been in popular Estates whereas they hold contrary Parts and for divers Magistrates some demand Peace others War some will have this Law others that some will have one Commander others another some will treat a League with the King of France others with the King of Spain corrupted or drawn some one Way some another making open War as hath been seen in our Age amongst the Grisons c. Upon these Texts of Aristotle forecited and from the Mutability of the Roman Popularity which Aristotle lived not to see I leave the Learned to consider whether it be not probable that these or the like Parodoxes may be inferred to be the plain Mind of Aristotle viz. 1.
That there is no Form of Government but Monarchy only 2 That there is no Monarchy but Paternal 3. That there is no Paternal Monarchy but Absolute or Arbitrary 4. That there is no such thing as an Aristocratie or Democratie 5. That there is no such Form of Government as a Tyranny 6. That the People are not born Free by Nature DIRECTIONS FOR Obedience to Government IN Dangerous or Doubtful Times ALL those who so eagerly strive for an original Power to be in the People do with one Consent acknowledge that originally the Supreme Power was in the Fatherhood and that the first Kings were Fathers of Families This is not only evident and affirmed by Aristotle but yielded unto by Grotius Mr. Selden Mr. Hobbs Mr. Ascam and all others of that Party not one excepted that I know of Now for those that confess an original Subjection in Children to be governed by their Parents to dream of an original Freedom in Mankind is to contradict themselves and to make Subjects to be Free and Kings to be Limited to imagine such Pactions and Contracts between Kings and People as cannot be proved ever to have been made or can ever be described or fancied how it is possible for such Contracts ever to have been is a boldness to be wondred at Mr. Selden confesseth that Adam by donation from God was made the general Lord of all things not without such a private Dominion to himself as without his Grant did exclude his Children And by Donation or Assignation or some kind of Concession before he was dead or left any Heir to succeed him his Children had their distinct Territories by Right of Private Dominion Abel had his Flocks and Pastures for them Cain had his Fields for Corn and the Land of Nod where he built himself a City It is confessed that in the Infancy of the World the Paternal Government was Monarchical but when the World was replenished with multitude of people then the Paternal Government ceased and was lost and an Elective kind of Government by the People was brought into the World To this it may be answered That the paternal Power cannot be lost it may either be transferr'd or usurped but never lost or ceaseth God who is the giver of Power may transferr it from the Father to some other he gave to Saul a Fatherly power over his Father Kish God also hath given to the Father a Right or Liberty to alien his Power over his Children to any other whence we find the Sale and gift of Children to have been much in Use in the beginning of the World when men had their Servants for a possession and an Inheritance as well as other Goods whereupon we find the power of Castrating and making Eunuchs much in Use in old times As the power of the Father may be lawfully transferr'd or aliened so it may be unjustly usurped And in Usurpation the Title of an Usurper is before and better than the Title of any other than of him that had a former Right for he hath a possession by the permissive Will of God which permission how long it may endure no man ordinarily knows Every man is to preserve his own Life for the Service of God and of his King or Father and is so far to obey an Usurper as may tend not only to the preservation of his King and Father but sometimes even to the preservation of the Usurper himself when probably he may thereby be reserved to the Correction or Mercy of his true Superiour though by Humane Laws a long Prescription may take away Right yet Divine Right never dies nor can be lost or taken away Every man that is born is so far from being Free-born that by his very Birth he becomes a Subject to him that begets him under which Subjection he is always to live unless by immediate Appointment from God or by the Grant or Death of his Father he become possessed of that power to which he was subject The Right of Fatherly Government was ordained by God for the preservation of Mankind if it be usurped the Usurper may be so far obeyed as may tend to the preservation of the Subjects who may thereby be enabled to perform their Duty to their true and right Sovereign when time shall serve in such Cases to obey an Usurper is properly to obey the first and right Governour who must be presumed to desire the Safety of his Subjects the Command of an Usurper is not to be obeyed in any thing tending to the destruction of the Person of the Governour whose Being in the first place is to be looked after It hath been said that there have been so many Usurpations by Conquest in all Kingdoms that all Kings are Usurpers or the Heirs or Successors of Usurpers and therefore any Usurper if he can but get the possession of a Kingdom hath as good a Title as any other Answer The first Usurper hath the best Title being as was said in possession by the Permission of God and where an Usurper hath continued so long that the knowledge of the right Heir be lost by all the Subjects in such a case an Usurper in possession is to be taken and reputed by such Subjects for the true Heir and is to be obeyed by them as their Father As no man hath an infallible Certitude but onely a moral Knowledge which is no other than a probable perswasion grounded upon a peaceable possession which is a warrant for subjection to Parents and Governours for we may not say because Children have no infallible or necessary certainty who are their true Parents that therefore they need not obey because they are uncertain it is sufficient and as much as Humane Nature is capable of for Children to rely upon a credible perswasion for otherwise the Commandement of Honour thy Father would be a vain Commandment and not possible to be observed By Humane positive Laws a Possession time out of mind takes away or barrs a former Right to avoid a general Mischief of bringing all Right into a disputation not decideable by proof and consequently to the overthrow of all Civil Government in Grants Gifts and Contracts between man and man But in Grants and Gifts that have their original from God or Nature as the Power of the Father hath no Inferiour power of man can limit nor make any Law of Prescription against them upon this ground is built that common Maxim that Nullum tempus occurrit regi No time bars a King All Power on Earth is either derived or usurped from the Fatherly power there being no other original to be found of any Power whatsoever for if there should be granted two sorts of power without any subordination of one to the other they would be in perpetual strife which should be Supreme for two Supremes cannot agree if the Fatherly power be supreme then the power of the People must be subordinate and depend on it if the power of the People be
next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Ioshua but will have it descend to Eleazar the High-Priest Aaron's son His Proof is God expresly saith concerning Ioshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Urim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ. The Work of the High-Priest was onely Ministerial not Magisterial he had no power to Command in War or to Judge in Peace onely when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Brest-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Brest-plate before his face then the Priest answered him Go up or Go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIUS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their Meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition I. M. abominates as being the Definion of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keeps our Laws and not impose upon us his own Therefore there is no Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Iustice and by them where not the King but the usual Iudges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtal the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay I. M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17. 14. When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placerâ—…t forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in the People either to use what Form of Government they pleased or of changing it into another God saith this expresly of the Hebrews and denies it not of others Can any man find that God in this Text expresly saith that there was always a Right in the People to use what Form
of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the Having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders onely for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was annointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou cammandest us we will do and whithersoever thou sendst us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Ius Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them pag. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compell them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that 〈◊〉 King according to Law makes no sort of Government and after he had reckoned up five sorts of Kings he concludes that there were in a manner but two sorts the Lacedemonian King and the Absolute King whereof the first was but as General in an Army and therefore no King at all and then fixes and rests upon the Absolute King who ruleth according to
his own Will V. If it be demanded what is meant by the word People 1. Sometimes it is Populus universus and then every Child must have his Consent asked which is impossible 2. Sometimes it is pars major and sometimes it is pars potior sanior How the major part where all are alike free can bind the minor part is not yet proved But it seems the major part will not carry it nor be allowed except they be the better part and the sounder part We are told the sounder part implored the help of the Army when it saw it self and the Commonwealth betrayed and that the Souldiers judged better than the Great Councel and by Arms saved the Commonwealth which the Great Councel had almost damned by their Votes p. 7. Here we see what the People is to wit the sounder part of which the Army is the judge thus upon the matter the Souldiers are the People which being so we may discern where the Liberty of the People lieth which we are taught to consist all for the most part in the power of the Peoples Choosing what Form of Government they please pag. 61. A miserable Liberty which is onely to choose to whom we will give our Liberty which we may not keep See more concerning the People in a Book entituled The Anarchy p. 8 9 10 11 12 13 14. VI. We are taught that a Father and a King are things most diverse The Father begets us but not the King but we create the King Nature gives a Father to the People the People give themselves a King If the Father kill his Son he loseth his life why should not the King also p. 34. Ans. Father and King are not so diverse it is confessed that at first they were all one for there is confessed Paternum imperium haereditarium p. 141. and this Fatherly Empire as it was of it self hereditary so it was alienable by Patent and seizable by an Usurper as other goods are and thus every King that now is hath a Paternal Empire either by Inheritance or by Translation or Usurpation so a Father and a King may be all one A Father may dye for the Murther of his Son where there is a Superiour Father to them both or the Right of such a Supreme Father but where there are onely Father and Sons no Sons can question the Father for the death of their Brother the reason why a King cannot be punished is not because he is excepted from Punishment or doth not deserve it but because there is no Superiour to judge him but God onely to whom he is reserved VII It is said thus He that takes away from the People the power of Choosing for themselves what Form of Government they please he doth take away that wherein all Civil Liberty almost consists p. 65. If almost all Liberty be in Choosing of the Kind of Government the People have but a poor Bargain of it who cannot exercise their Liberty but in Chopping and Changing their Government and have liberty onely to give away their Liberty than which there is no greater mischief as being the cause of endless Sedition VIII If there be any Statute in our Law by which thou canst find that Tyrannical Power is given to a King that Statute being contrary to Gods Will to Nature and Reason understand that by that general and primary Law of ours that Statute is to be repealed and not of force with us p. 153. Here if any man may be judge what Law is contrary to Gods Will or to Nature or to Reason it will soon bring in Confusion Most men that offend if they be to be punished or fined will think that Statute that gives all Fines and Forfeitures to a King to be a Tyrannical Law thus most Statutes would be judged void and all our Fore-fathers taken for Fools or Madmen to make all our Laws to give all Penalties to the King IX The sin of the Children of Israel did lye not in Desiring a King but in desiring such a King like as the Nations round about had they distrusted God Almighty that governed them by the Monarchical Power of Samuel in the time of oppression when God provided a Judge for them but they desired a perpetual and hereditary King that they might never want in Desiring a King they could not sin for it was but Desiring what they enjoyed by Gods special Providence X. Men are perswaded that in Making of a Covenant something is to be performed on both parts by mutual Stipulation which is not alwayes true for we find God made a Covenant with Noah and his Seed with all the Fowl and the Cattel not to destroy the Earth any more by a flood This Covenant was to be kept on Gods part neither Noah nor the Fowl nor the Cattel were to perform any thing by this Covenant On the other side Gen. 17. 9 10. God covenants with Abraham saying Thou shalt keep my Covenant every male child among you shall be circumcised Here it is called Gods Covenant though it be to be performed onely by Abraham so a Covenant may be called the Kings Covenant because it is made to him and yet to be performed only by the People So also 2 Kin. 11. 17. Iehoiada made a Covenant between the Lord and the King and the People that they should be the Lords People Between the King also and the People which might well be that the People should be the Kings Servants and not for the King 's covenanting to keep any Humane Laws for it is not likely the King should either Covenant or take any Oath to the People when he was but seven years of age and that never any King of Israel took a Coronation-Oath that can be shewed when Iehoiada shewed the King to the Rulers in the House of the Lord he took an Oath of the People he did not Article with them but saith the next Verse Commanded them to keep a Watch of the Kings House and that they should compass the King around about every man with his weapon in his hand and he that cometh within the Ranges let him be slain XI To the Text Where the word of a King is there is Power and who may say unto him What dost thou J. M. gives this Answer It is apparent enough that the Preacher in this place gives Precepts to every private man not to the great Sanhedrin nor to the Senate shall not the Nobles shall not all the other Magistrates shall not the whole People dare to mutter so oft as the King pleaseth to dote We must here note that the great Councel and all other Magistrates or Nobles or the whole People compared to the King are all but private men if they derive their Power from him they are Magistrates under him and out of his Presence for when he is in place they are but so many private men I. M. asks Who swears to a King unless the King on the other side be sworn
to keep Gods Laws and the Laws of the Countrey We find that the Rulers of Israel took an Oath at the Coronation of Iehoash but we find no Oath taken by that King no not so much as to Gods Laws much less to the Laws of the Countrey XII A Tyrant is he who regarding neither Law nor the Common Good reigns onely for himself and his Faction p. 19. In his Defence he expresseth himself thus He is a Tyrant who looks after only his own and not his Peoples profit Eth. l. 10. p. 189. 1. If it be Tyranny not to regard the Law then all Courts of Equity and Pardons for any Offences must be taken away there are far more Sutes for relief against the Laws than there be for the observation of the Laws there can be no such Tyranny in the World as the Law if there were no Equity to abate the rigour of it Summum Ius is Summa Injuria if the Penalties and Forfeitures of all Laws should still be exacted by all Kings it would be found that the greatest Tyranny would be for a King to govern according to Law the Fines Penalties and Forfeitures of all Laws are due to the Supreme Power onely and were they duely paid they would far exceed the Taxes in all places It is the chief happiness of a Kingdom and their chief Liberty not to be governed by the Laws Only 2. Not to regard the Common Good but to reign only for himself is the supposition of an impossibility in the judgment of Aristotle who teacheth us that the despotical Power cannot be preserved except the Servant or he in subjection be also preserved The truth of this strongly proves That it is in Nature impossible to have a Form of Government that can be for the destruction of a People as Tyranny is supposed if we will allow People to be governed we must grant they must in the first place be preserved or else they cannot be governed Kings have been and may be vitious men and the Government of one not so good as the Government of another yet it doth not follow that the Form of Government is or can be in its own nature ill because the Governour is so it is Anarchy or want of Government that can totally destroy a Nation We cannot find any such Government as Tyranny mentioned or named in Scripture or any word in the Hebrew Tongue to express it After such time as the Cities of Greece practised to shake off Monarchy then and not till then which was after Homer's time the name of Tyrant was taken up for a word of Disgrace for such men as by craft or Force wrested the Power of a City from a Multitude to one man onely and not for the exercising but for the ill-obtaining of the Government but now every man that is but thought to govern ill or to be an ill man is presently termed a Tyrant and so judged by his Subjects Few remember the Prohibition Exod. 22. 28. Thou shalt not revile the Gods nor curse the Ruler of thy People and fewer understand the reason of it Though we may not one judge another yet we may speak evil or revile one another in that which hath been lawfully judged and upon a Tryal wherein they have been heard and condemned this is not to judge but onely to relate the judgment of the Ruler To speak evil or to revile a Supreme Judge cannot be without judging him who hath no Superiour on Earth to judge him and in that regard must alwayes be presumed innocent though never so ill if he cannot lawfully be heard I. M. That will have it Tyranny in a King not to regard the Laws doth himself give as little Regard to them as any man where he reckons that Contesting for Privileges Customs Forms and that old entanglement of Iniquity their gibrish Laws are the Badges of ancient Slavery Tenure pag. 3. a Disputing Presidents Forms and Circumstances pag. 5. I. M. is also of opinion That If at any time our Fore-fathers out of baseness have lost any thing of their Right that ought not hurt us they might if they would promise Slavery for themselves for us certainly they could not who have alwayes the same Right to free our selves that they had to give themselves to any man in Slavery This Doctrine well practised layeth all open to constant Anarchy Lastly If any desire to know what the Liberty of the People is which I. M. pleads for he resolves us saying That he that takes away from the People the Right of Choosing what Form of Government they please takes away truly that in which all Liberty doth almost consist It is well said by I. M. that all Liberty doth almost consist in Choosing their Form of Government for there is another liberty exercised by the People which he mentions not which is the liberty of the Peoples Choosing their Religion every man may be of any Religion or of no Religion Greece and Rome have been as famous for Polytheisme or multitudes of gods as of Governours and imagining Aristocratie and Democratie in Heaven as on Earth OBSERVATIONS UPON H. Grotius DE IURE BELLI PACIS IN most Questions of Weight and Difficulty concerning the Right of War or Peace or Supreme Power Grotius hath Recourse to the Law of Nature or of Nations or to the Primitive Will of those men who first joyned in Society It is necessary therefore a little to lay open the Variety or Contrariety in the Civil and Canon Law and in Grotius himself about the Law of Nature and Nations not with a Purpose to raise any Contention about Words or Phrases but with a Desire to reconcile or expound the Sense of different Terms Civilians Canonists Politicians and Divines are not a little perplexed in distinguishing between the Law of Nature and the Law of Nations about Ius Naturae and Ius Gentium there is much Dispute by such as handle the Original of Government and of Property and Community The Civil Law in one Text allows a threefold Division of Law into Ius Naturae Ius Gentium and Ius Civile But in another Text of the same Law we find only a twofold Division into Ius Civile and Ius Gentium This latter Division the Law takes from Gaius the former from Ulpian who will have Ius Naturale to be that which Nature hath taught all Creatures quod Natura omnia animalia Docuit but for this he is confuted by Grotius Salmasius and others who restrain the Law of Nature only to men using Reason which makes it all one with the Law of Nations to which the Canon Law consents and saith That Ius Naturale est commune omnium nationum That 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. Ius Naturae is confounded with Ius Gentium As the Civilians sometimes confound and sometimes separate the Law of Nature
effectus nec jus idem Here he doth teach in plain words the Effect doth depend upon the Will of the People By this we may judge how improperly he useth the instance of a Woman that appoints her self a Husband whom she must alwayes necessarily obey since the necessity of the continuance of the Wives obedience depends upon the Law of God which hath made the Bond of Matrimony indissolvable Grotius will not say the like for the continuance of the Subjects obedience to the Prince neither will he say that Women may choose Husbands as he tells us the People may choose Kings by giving their Husbands as little Power and for as little a Time as they please Next it is objected that Tutors who are set over Pupils may be removed if they abuse their Power Grotius answers In tutore hoc procedit qui superiorem habet at in imperiis quia progressus non datur in infinitum omnino in aliqua persona aut coetu consistendum est We must stay in some one Person or in a Multitude whose faults because they have no superiour Iudge above them God hath witnessed that he will have a particular care of either to revenge them if he judge it needful or to tolerate them either for Punishment or Tryal of the People It is true in Kingdomes we cannot proceed in infinitum yet we may and must go to the highest which by Grotius his Rule is the People because they first made Kings so that there is no need to stay in aliqua persona but in coetu in the People so that by his Doctrine Kings may be punished by the People but the faults of the People must be left to the Judgment of God I have briefly presented here the desperate Inconveniences which attend upon the Doctrine of the natural freedom and community of all things these and many more Absurdities are easily removed if on the contrary we maintain the natural and private Dominion of Adam to be the fountain of all Government and Propriety And if we mark it well we shall find that Grotius doth in part grant as much The ground why those that now live do obey their Governours is the Will of their Fore-fathers who at the first ordained Princes and in obedience to that Will the Children continue in subjection this is according to the mind of Grotius so that the Question is not Whether Kings have a fatherly Power over their Subjects but how Kings came first by it Grotius will have it that our Fore-fathers being all free made an Assignment of their Power to Kings the other opinion denies any such general freedom of our Fore-fathers but derives the Power of Kings from the Original Dominion of Adam This natural Dominion of Adam may be proved out of Grotius himself who teacheth that geneâ—…ione jus acquiritur Parentibus in Liberos and that â—…urally no other can be found but the Parents to whom the Government should belong and the Right of Ruling and Compelling them doth belong to Parents And in another place he hath these words speaking of the first Commandment Parentum nomine â—…i naturales sunt Magistratus etiam alios Rectores 〈◊〉 est intelligi quorum authoritas Societatem humaâ—…m continet and if Parents be natural Magistrates Children must needs be born natural Subjects But although Grotius acknowledge Parents to â—…e natural Magistrates yet he will have it that Children when they come to full age and are â—…parated from their Parents are free from natural Subjection For this he offers proof out of Ariâ—…le and out of Scripture First for Aristotle we â—…ust note he doth not teach that every separation of Children of full age is an Obtaining of liberty â—…s if that men when they come to years might voâ—…ntarily separate themselves and cast off their â—…atural Obedience but Aristotle speaks onely of passive Separation for he doth not say that Children are subject to Parents until they do sepaâ—…te but he saith until they be separated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in â—…he Verb of the Passive Voice That is until by â—…aw they be separated for the Law which 〈◊〉 nothing else but the Will of him that hath the Power of the Supreme Father doth in many cases for the publick Benefit of Society free Children from subjection to the Subordinate Parent so that the natural Subjection by such Emancipation of Children is not extinguished but onely assumed and regulated by the Parent paramount Secondly Grotius cites Numb 30. to prove that the Power of the Fathers over the Sons and Daughters to dissolve their Vows was not perpetual buâ—… during the time only whilst the Children were part oâ—… the Fathers Family But if we turn to the Chapter we may find that Grotius either deceives himself or us for there is not one word in that Chapter concerning the Vows of Sons but of Daughters only being in their Father's Family and thâ—… Being of the Daughter in the Father's House meaneth only the Daughter 's being a Virgin and noâ—… married which may be gathered by the Argumenâ—… of the whole Chapter which taketh particular order for the Vows of Women of all Estates Firsâ—… for Virgins in the third verse Secondly foâ—… Wives in general in the sixth verse Thirdly foâ—… Widows and Women divorced in the nintâ—… verse There is no Law for Virgins out of theâ—… Father's houses we may not think they woulâ—… have been omitted if they had been free froâ—… their Fathers we find no freedom in the Teâ—… for Women till after Marriage And if they weâ—… married though they were in their Father's hoâ—…ses yet the Fathers had no power of their Vowâ—… but their Husbands If by the Law of Nature departure from tâ—… Fathers house had emancipated Children wâ—… doth the Civil Law contrary to the Law of Nâ—…ture give Power and Remedy to Fathers for to recover by Action of Law their Children that deâ—…rt or are taken away from them without their Consent Without the Consent of Parents the Civil Law allows no emancipation Concerning Subjection of Children to Parents Grotius distinguisheth three several times The first is the time of Imperfect Iudgment The second is the time of Perfect Iudgment but whilst the Son remains part of the Father's Faâ—…ily The third is the time after he hath departed out of his Father's Family In the first time he saith All the actions of Children are under the dominion of the Parents During the second time when they are of the â—…ge of mature Iudgment they are under their Father's Command in those actions onely which are of moment for their Parents Family In other actions the Children have a Power or moral Faculty of doing but they are bound in those also to study alwayes to please their Parents But since this Duty is not by â—…orce of any moral Faculty as those former are but â—…ely 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
greater Evil do so yield themselves into anothers Power as that they do except nothing It would be considered how without War any People can be brought into such danger of Life as that because they can find no other wayes to defend themselves or because they are so pressed with Poverty as they cannot otherwise have means to sustain themselves they are forced to renounce all Right of Governing themselves and deliver it to a King But if such a Case cannot happen but by a War onely which reduceth a People to such terms of Extremity as compells them to an absolute Abrenuntiation of all Sovereignty then War which causeth that necessity is the prime means of extorting such Sovereignty and not the free Gift of the People who cannot otherwise choose but give away that Power which they cannot keep Thus upon the Reckoning the two ways propounded by Grotius are but one way and that one way in conclusion is no way whereby Supreme Power may be had in full Right of Propriety His two ways are a Iust War or a Donation of the People a just War cannot be without a Title no Title without the Donation of the People no Donation without such a Necessity as nothing can bring upon the Donors but a War So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety yet by consequence he denies it by such circular Suppositions as by coincidence destroy each other and in effect he leaves all People a Right to plead in Bar against the Right of Propriety of any Prince either per minas or per dures Many times saith Grotius it happens that War is grounded upon Expletive Iustice Iustitiam Expletricem which is when a man cannot obtain what he ought he takes that which is as much in value which in moral Estimation is the same For in War when the same Province cannot be recovered to the which a man hath a Title he recovers another of the like value This recovery cannot give a full right of Propriety because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing and therefore can give no new Right I am bound to take notice of a Case put by Grotius amongst those Causes which he thinks should move the People to renounce all their Right of Governing and give it to another It may also happen saith he that a Father of a Family possessing large Territories will not receive any man to dwell within his Land upon any other condition And in another place he saith that all Kings are not made by the People which may be sufficiently understood by the Examples of a Father of a Family receiving Strangers under the Law of Obedience In both these Passages we have a close and curt acknowledgment that a Father of a Family may be an absolute King over Strangers without Choice of the People now I would know whether such Fathers of Families have not the same absolute Power over their own Children without the Peoples Choice which he allows them over Strangers if they have I cannot but call them Absolute proprietary Kings though Grotius be not willing to give them that Title in plain terms for indeed to allow such Kings were to condemn his own Principle that Dominion came in by the Will of the People and so consequently to overthrow his Usufructuary Kings of whom I am next to speak Grotius saith that the Law of Obeying or Resisting Princes depends upon the Will of them who first met in Civil Society from whom Power doth flow to Kings And that men of their own accord came together into Civil Society from whence springs Civil Power and the People may choose what Form of Government they please Upon these Suppositions he concludes that Kings elected by the People have but an Usufructuary Right that is a Right to take the Profit or Fruit of the Kingdom but not a Right of Propriety or Power to alienate it But why doth he call it an Usufructuary Right It seems to me a term too mean or base to express the Right of any King and is derogatory to the Dignity of Supreme Majesty The word Usufructuary is used by the Lawyers to signifie him that hath the Use Profit or Fruit of some Corporal thing that may be used without the Property for of fungible things res fungibiles the Civilians call them that are spent or consumed in the Use as Corn Wine Oyl Money there cannot be an Usufructuary Right It is to make a Kingdom all one with a Farm as if it had no other Use but to be let out to him that can make most of it whereas in truth it is the Part and Duty of a King to govern and he hath a Right so to do and to that End Supreme Power is given unto him the taking of the Profit or making Use of the Patrimony of the Crown is but as a means onely to enable him to perform that great work of Government Besides Grotius will not onely have an elected King but also his lawful Successors to have but an Usufructuary Right so that though a King hath a Crown to him and to his Heirs yet he will allow him no Propriety because he hath no Power to alienate it for he supposeth the primary Will of the People to have been to bestow Supreme Power to go in Succession and not to be alienable but for this he hath no better proof than a naked presumption In Regnis quae Populi voluntate delata sunt concedo non esse praesumendum eam fuisse Populi voluntatem ut alienatio Imperii sui Regi permitteretur But though he will not allow Kings a Right of Propriety in their Kingdoms yet a Right of Propriety there must be in some body and in whom but in the People for he saith the Empire which is exercised by Kings doth not cease to be the Empire of the People His meaning is the Use is the King 's but the Property is the Peoples But if the Power to alienate the Kingdom be in him that hath the Property this may prove a comfortable Doctrine to the People but yet to allow a Right of Succession in Kings and still to reserve a Right of Property in the People may make some contradiction for the Succession must either hinder the Right of Alienation which is in the People or the Alienation must destroy that Right of Succession which by Grotius's confession may attend upon elected Kings Though Grotius confess that Supreme Power be Unum quiddam and in it self indivisible yet he saith Sometimes it may be divided either by parts potential or subjunctive I take his meaning to be that the Government or the Governed may be divided an Example he gives of the Roman Empire which was divided into the East and West but whereas he saith fieri potest c. It may be the People choosing a King may reserve some Actions to themselves and in others
they may give full power to the King The Example he brings out of Plato of the Heraclides doth not prove it and it is to dream of such a Form of Government as never yet had name nor was ever found in any settled Kingdom nor cannot possibly be without strange Confusion If it were a thing so voluntary and at the pleasure of men when they were free to put themselves under Subjection why may they not as voluntarily leave Subjection when they please and be free again If they had a liberty to change their Natural Freedom into a voluntary Subjection there is stronger reason that they may change their voluntary Subjection into natural Freedom since it is as lawful for men to alter their Wills as their Judgments Certainly it was a rare felicity that all the men in the World at one instant of time should agree together in one mind to change the Natural Community of all things into Private Dominion for without such an unanimous Consent it was not possible for Community to be altered for if but one man in the World had dissented the Alteration had been unjust because that Man by the Law of Nature had a Right to the common Use of all things in the World so that to have given a Propriety of any one thing to any other had been to have robbed him of his Right to the common Use of all things And of this Judgment the Jesuit Lud. Molina seems to be in his Book De Iustitia where he saith Si aliquis de cohabit antibus c. If one of the Neighbours will not give his Consent to it the Commonwealth should have no Authority over him because then every other man hath no Right or Authority over him and therefore can they not give Authority to the Commonwealth over him If our first Parents or some other of our Forefathers did voluntarily bring in Propriety of Goods and Subjection to Governours and it were in their power either to bring them in or not or having brought them in to alter their minds and restore them to their first condition of Community and Liberty what reason can there be alleged that men that now live should not have the same power So that if any one man in the World be he never so mean or base will but alter his Will and say he will resume his Natural Right to Community and be restored unto his Natural Liberty and consequently take what he please and do what he list who can say that such a man doth more than by Right he may And then it will be lawful for every man when he please to dissolve all Government and Destroy all Property Whereas Grotius saith That by the Law of Nature all things were at first Common and yet teacheth that after Propriety was brought in it was against the Law of Nature to use Community He doth thereby not onely make the Law of Nature changeable which he saith God cannot do but he also makes the Law of Nature contrary to it self THE ANARCHY OF A Limited or Mixed MONARCHY THE PREFACE WE do but flatter our selves if we hope ever to be governed without an Arbitrary Power No we mistake the Question is not Whether there shall be an Arbitrary Power but the only point is Who shall have that Arbitrary Power whether one man or many There never was nor ever can be any People govern'd without a Power of making Laws and every Power of making Laws must be Arbitrary For to make a Law according to Law is Contradictio in adjecto It is generally confessed that in a Democracy the Supreme or Arbitrary Power of making Laws is in a multitude and so in an Aristocracy the like Legislative or Arbitrary Power is in a few or in the Nobility And therefore by a necessary Consequence in a Monarchy the same Legislative Power must be in one according to the Rule of Aristotle who saith Government is in One or in a Few or in Many This antient Doctrine of Government in these latter days hath been strangely refined by the Romanists and wonderfully improved since the Reformation especially in point of Monarchy by an Opinion That the People have Originally a Power to create several sorts of Monarchy to limit and compound them with other Forms of Government at their pleasure As for this natural Power of the People they finde neither Scripture Reason or Practice to justifie it For though several Kingdoms have several and distinct Laws one from another yet that doth not make several sorts of Monarchy Nor doth the difference of obtaining the Supreme Power whether by Conquest Election Succession or by any other way make different sorts of Government It is the difference only of the Authors of the Laws and not of the Laws themselves that alters the Form of Government that is whether one man or more than one make the Laws Since the growth of this new Doctrine Of the Limitation and Mixture of Monarchy it is most apparent that Monarchy hath been crucified as it were between two Thieves the Pope and the People for what Principles the Papists make use of for the Power of the Pope above Kings the very same by blotting out the word Pope and putting in the word People the Plebists take up to use against their Soveraigns If we would truely know what Popery is we shall finde by the Laws and Statutes of the Realm that the main and indeed the only Point of Popery is the alienating and withdrawing of Subjects from their Obedience to their Prince to raise Sedition and Rebellion If Popery and Popularity agree in this Point the Kings of Christendome that have shaken off the Power of the Pope have made no great bargain of it if in place of one Lord abroad they get many Lords at home within their own Kingdoms I cannot but reverence that Form of Government which was allowed and made use of for God's own People and for all other Nations It were Impiety to think that God who was careful to appoint Iudicial Laws for his chosen People would not furnish them with the best Form of Government or to imagine that the Rules given in divers places in the Gospel by our blessed Saviour and his Apostles for Obedience to Kings should now like Almanacks out of date be of no use to us because it is pretended We have a Form of Government now not once thought of in those days It is a shame and scandal for us Christians to seek the Original of Government from the Inventions or Fictions of Poets Orators Philosophers and Heathen Historians who all lived thousands of Years after the Creation and were in a manner ignorant of it and to neglect the Scriptures which have with more Authority most particularly given us the true Grounds and Principles of Government These Considerations caused me to scruple this Modern piece of Politicks touching Limited and Mixed Monarchy and finding no other that presented us with the nature and means of Limitation
he may enjoy this it seems our Author is not confident in this neither and some others do deny it him our Author speaking of the government of this Kingdome saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty title certain of no power at all The power of chusing Officers onely is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take accompts and indeed in all popular governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the onely subject in a Kingdome or the onely man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may sometime or other perhaps govern according to the Laws onely the King can be no Officer but to chuse Officers his Subjects may all Govern but he may not Next I cannot see how in true sence our Author can say his Monarch is the head and fountain of power since his doctrine is that in a limited Monarchy the publick society by original constitution confer on one man power is not then the publick society the head and fountain of power and not the King Again when he tells us of his Monarch that both the other States as well conjunctim as divisim be his sworn subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons he without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his judges in Courts of Justice onely that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the Supream power And 3. As to this third particular The power of convocating such persons they are both so far from making a Monarch that they are the onely way to make him none by choosing and calling others to share in the Supream power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the Supream power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truely a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing onely a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person makes the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Iudge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applyed It is a case beyond the possible provision of such a Government of this question there is no legal judge The accusing side must make it evident to every mans Conscience The appeal must be to the community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry then Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to enquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because I find our Author altogether insists upon a rational way of justifying his opinion No man I think will deny but that Aristotle was sufficiently curious in searching out the several forms of Common-wealths and Kingdoms yet I do not find that he ever so much as dreamed of either a limited or mixed Monarchy Several other sorts of Monarchies he reckons up in the Third Book of his Politicks he spends three whole Chapters together upon the several kinds of Monarchy First in his fourteenth Chapter he mentions four kinds of Monarchy The Laconique or Lacedemonian The Barbarique The Aesymnetical The Heroique The Laconique or Lacedemonian King saith he had onely Supream power when he was out of the bounds of the Lacedemonian Territories then he had absolute power his Kingdom was like to a perpetual Lord General of an Army The Barbarique King saith Aristotle had a power very near to Tyranny yet they were lawful and Paternal because the Barbarians are of a more servile nature than the Grecians and the Asiatiques than the Europeans they do willingly without repining live under a Masterly Government yet their Government is stable and safe because they are Paternal and lawful Kingdoms and their Guards are Royal and not Tyrannical for Kings are guarded by their own Subjects and Tyrants are guarded by Strangers The Aesymnetical King saith Arist. in old time in Greece was an Elective Tyrant and differed onely from the Barbarian Kings in that he was Elective and not Paternal these sorts of Kings because they were Tyrannical were Masterly but because they were over such as voluntarily Elected them they were Regal The Heroique were those saith Aristotle which flourished in the Heroical times to whom the people did willingly obey and they were Paternal and lawful because these Kings did deserve well of the multitude either by teaching them Arts or by Warring for them or by gathering them together when they were dispersed or by dividing Lands amongst them these Kings had Supreme power in War in Sacrifices in Iudicature These four sorts of Monarchy hath Aristotle thus distinguished and after sums them up together and concludes his Chapter as if he had
forgot himself and reckons up a fifth kind of Monarchy which is saith he When one alone hath Supream power of all the rest for as there is a domestical Kingdom of one house so the Kingdom of a City or of one or many Nations is a Family These are all the sorts of Monarchy that Aristotle hath found out and he hath strained hard to make them so many first for his Lacedemonian King himself confesseth that he was but a kind of Military Commander in War and so in effect no more a King than all Generals of Armies And yet this No-king of his was not limited by any Law nor mixed with any companions of his Government when he was in the Wars out of the Confines of Lacedemon he was as Aristotle stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of full and absolute command no Law no companion to govern his Army but his own will Next for Aristotles Aesymnetical King it appears he was out of date in Aristotles time for he saith he was amongst the antient Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristotle might well have spared the naming him if he had not wanted other sorts for the honour of his own Nation for he that but now told us the Barbarians were of a more servile nature than the Grecians comes here and tells us that these old Greek Kings were Elective Tyrants The Barbarians did but suffer Tyrants in shew but the old Grecians chose Tyrants indeed which then must we think were the greater slaves the Greeks or the Barbarians Now if these sorts of Kings were Tyrants we cannot suppose they were limited either by Law or joyned with companions Indeed Arist. saith some of these Tyrants were limited to certain times and actions for they had not all their power for term of life nor could meddle but in certain businesses yet during the time they were Tyrants and in the actions whereto they were limited they had absolute power to do what they list according to their own will or else they could not have been said to be Tyrants As for Aristotles Heroick King he gives the like note upon him that he did upon the Aesymnet that he was in old time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Heroick times The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms was only the means by which the first Kings obtained their Kingdoms and not the manner of Government for in that they were as absolute as other Kings were without either limitation by Law or mixture of companions Lastly as for Arist. Barbarick sort of Kings since he reckoned all the world Barbarians except the Grecians his Barbarick King must extend to all other sorts of Kings in the world besides those of Greece and so may go under Aristotles fifth sort of Kings which in general comprehends all other sorts and is no special form of Monarchy Thus upon a true accompt it is evident that the five several sorts of Kings mentioned by Aristotle are at the most but different and accidental means of the first obtaining or holding of Monarchies and not real or essential differences of the manner of Government which was always absolute without either limitation or mixture I may be thought perhaps to mistake or wrong Aristotle in questioning his diversities of Kings but it seems Aristotle himself was partly of the same mind for in the very next Chapter when he had better considered of the point he confessed that to speak the truth there were almost but two sorts of Monarchies worth the considering that is his first or Laconique sort and his fifth or last sort where one alone hath Supream power over all the rest thus he hath brought his five sorts to two Now for the first of these two his Lacedemonian King he hath confessed before that he was no more than a Generalissimo of an Army and so upon the matter no King at all and then there remains onely his last sort of Kings where one alone hath the Supream power And this in substance is the final resolution of Aristotle himself for in his sixteenth Chapter where he delivers his last thoughts touching the kinds of Monarchy he first dischargeth his Laconick King from being any sort of Monarchy and then gives us two exact rules about Monarchy and both these are pointblank against limited and mixed Monarchy therefore I shall propose them to be considered of as concluding all Monarchy to be absolute and Arbitrary 1. The one Rule is that he that is said to be a King according to Law is no sort of Government or Kingdom at all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. The second rule is that a true King is he that ruleth all according to his own will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This latter frees a Monarch from the mixture of partners or sharers in Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself onely with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime principle That all Monarchies except that of the Iews depend upon humane designment when the consent of a society of men and a fundamental contract of a Nation by original or radical constitution confers power He must know that Arist. searching into the original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the right of Fathers and not from the gift or contract of people his words may thus be Englished At the first Cities were Governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first society made of many Houses is a Village which naturally seems to be a Colony of a House which some call foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotles judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotles judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Unto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly
Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his people are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Iustice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Priviledges Much less should a Prince be bound unto the Laws he maketh himself for a man may well receive a Law from another man but impossible it is in nature for to give a Law unto himself no more than it is to command a mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the people assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the people is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Common-wealths of which their opinion there is neither reason nor ground for if the King be subject unto the Assemblies and Decrees of the people he should neither be King nor Soveraign and the Common-wealth neither Realm nor Monarchy but a meer Aristocracie So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Common-wealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Common-weal Such States wherein the rights of Soveraignty are divided are not rightly to be called Common-weals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Common-weals which change their state the Sovereign right and power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince and his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without society saith the Observator men could not live without Laws men could not be sociable and without Authority somewhere to judge according to Law Law was vain It was soon therefore provided that Laws according to the dictate of Reason should be ratified by common consent when it afterward appeared that man was yet subject to unnatural destruction by the Tyranny of entrusted Magistrates a mischief almost as fatal as to be without all Magistracy How to provide a wholsome remedy therefore was not so easie to be invented it was not difficult to invent Laws for the limiting of Supream Governours but to invent how those Laws should be executed or by whom interpreted was almost impossible Nam quis Custodiet ipsos Custodes to place a Superiour above a Supream was held unnatural yet what a lifeless thing would Law be without any Iudge to determine and force it If it be agreed upon that limits should be prefixed to Princes and Iudges to decree according to those limits yet another inconvenience will presently affront us for we cannot restrain Princes too far but we shall disable them from some good long it was ere the world could extricate it self out of all these extremities or find out an orderly means whereby to avoid the danger of unbounded Prerogative on this hand and to excessive liberty on the other and scarce has long experience yet fully satisfyed the minds of all men in it In the Infancy of the world when man was not so artificial and obdurate in cruelty and oppression as now and Policy most rude most Nations did choose rather to subject themselves to the meer discretion of their Lords than rely upon any limits and so be ruled by Arbitrary Edicts than written Statutes But since Tyranny being more exquisite and Policy more perfect especially where Learning and Religion flourish few Nations will endure the thraldome which usually accompanies unbounded and unconditionate Royalty Yet long it was ere the bounds and conditions of Supream Lords was so wisely determined or quietly conserved as now they are for at first when as Ephori Tribuni Curatores c. were erected to poise against the scale of Soveraignty much blood was shed about them and States were put into new broils by them and some places
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke
I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmarke withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of life and death over their Subjects without appeal and the King to give no Office without consent of the Councel There is a Chancelour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Councel and from this Councel to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the people or community may assume its own power if neither of these Kingdomes have most Countries have not nay none have The people or Community in these three Realms are as absolute vassals as any in the world the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Councel in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdome such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the people are so far from liberty that he saith Divers particular Lords exact not onely Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Iudgments The End AN ADVERTISEMENT TO THE JURY-MEN of ENGLAND TOUCHING WITCHES ADVERTISEMENT To the JURY-MEN OF ENGLAND THE late Executon of Witches at the Summer Assises in Kent occasioned this brief Exercitation which addresses it self to such as have not deliberately thought upon the great difficulty in discovering what or who a Witch is To have nothing but the publick Faith of the present Age is none of the best Evidence unless the universality of elder times do concur with these Doctrines which ignorance in the times of darkness brought forth and credulity in these days of light hath continued Such as shall not be pleased with this Tractate are left to their liberty to consider whether all those Proofs and Presumptions number'd up by Mr. Perkins for the Conviction of a Witch be not all Condemned or confessed by himself to be unsufficient or uncertain He brings no less than eighteen signs or proofs whereby a Witch may be discovered which are too many to be all true his seven first he himself confesseth to be insufficient for Conviction of a Witch His eight next proofs which he saith men in place have used he acknowledgeth to be false or insufficient Thus of his Eighteen proofs which made a great shew fifteen of them are cast off by himself there remains then his sixteenth which is the Confession of a Witch yet presently he is forced to yield That a bare Confession is not a sufficient proof and so he cometh to his seventeenth proof which is two credible witnesses and he here grants that the League between the Devil and the Witch is closely made and the practices of Witches be very secret that hardly a man can be brought which upon his own knowledge can aver such things Therefore at last when all other proofs fail he is forced to fly to his eighteenth proof and tells us that yet there is a way to come to the knowledge of a Witch which is that Satan useth all means to discover a Witch which how it can be well done except the Devil be bound over to give in evidence against the Witch cannot be understood And as Mr. Perkins weakens and discredits all his own proofs so he doth the like for all those of King James who as I remember hath but Three Arguments for the discovery of a Witch First the secret Mark of a Witch of which Mr. Perkins saith it hath no power by Gods Ordinance Secondly The discovery by a fellow Witch this Mr. Perkins by no means will allow to be a good proof Thirdly the swimming of a Witch who is to be flung cross ways into the water that is as Wierus interprets it when the Thumb of the right Hand is bound to the great Toe of the left Foot and the Thumb of the left Hand to the great Toe of the right Foot Against this Tryal by water together with a disability in a Witch to shed Tears which King James mentions Delrio and Mr. Perkins both argue for it seems they both write after King James who put forth his Book of Daemonologie in his youth being in Scotland about his age of thirty years It concerns the people of this Nation to be more diligently instructed in the Doctrine of Witch-craft than those of Forraign Countries because here they are tyed to a stricter or exacter Rule in giving their sentence than others are for all of them must agree in their Verdict which in a case of extream difficulty is very dangerous and it is a sad thing for men to be reduced to that extremity that they must hazard their Consciences or their Lives A DIFFERENCE BETWEEN An English and Hebrew WITCH THE Point in Question is briefly this Whether such a Witch as is Condemned by the Laws and Statutes of this Land be one and the same with the Witch forbidden by the Law of Moses The Witch Condemned by our Statute-law is 1 Iacob Cap. 12. One that shall use practice or exercise any Invocation or Conjuration of any evil or wicked spirit or consult covenant with entertain or employ feed or reward any evil or wicked spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the
Succinct Examination of the Fundamentals of Monarchy both in this and other Kingdoms as well about the Right of Power in Kings as of the Original or Natural Liberty of the People A Question never yet Disputed though most necessary in these Times Lucan Lib. 3. LIBERTAS Populi quem Regna coercent Libertate Perit Neque enim Libertas gratior ulla est Quà m Domino servire bono Claudian LONDON Printed in the Year MDCLXXIX AN ADVERTISEMENT TO THE Jury-Men OF ENGLAND TOUCHING WITCHES Together with a Difference between An ENGLISH AND HEBREW Witch LONDON Printed in the Year MDCLXXIX The Argument A Presentment of divers Statutes Records and other Precedents explaining the Writs of Summons to Parliament shewing I. That the Commons by their Writ are onely to Perform and Consent to the Ordinances of Parliament II. That the Lords or Common Councel by their Writ are only to Treat and give Counsel in Parliament III. That the King Himself only Ordains and makes Laws and is Supreme Iudge in Parliament With the Suffrages of Hen. de Bracton Jo. Britton Tho. Egerton Edw. Coke Walter Raleigh Rob. Cotton Hen. Spelman Jo. Glanvil Will. Lambard Rich. Crompton Will. Cambden and Jo. Selden THE Free-holders GRAND-INQUEST Touching Our Sovereign Lord the King and His Parliament EVery Free-holder that hath a Voice in the Election of Knights Citizens or Burgesses for the Parliament ought to know with what Power he trusts those whom the chooseth because such Trust is the Foundation of the Power of the House of Commons A Writ from the King to the Sheriff of the County is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ and in the Writ there is also expressed the Duty and Power of the Knights Citizens and Burgesses that are there elected The means to know what Trust or Authority the Country or Free-holders confer or bestow by their Election is in this as in other like Cases to have an eye to the words of the Commission oâ—… Writ it self thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission greater or other Trust than is comprised in the Body of the Writ the Free-holders do not or cannot give if they obey the Writ the Writ being Latine and not extant in English few Free-holders understand it and fewer observe it I have rendred it in Latine and English Rex Vicecomiti salut ' c. QUia de Advisamento Assensu Concilii nostri prâ—… quibusdam arduis urgentibus Negotiis Nos statum defensionem regni nostri Angliae Ecclesâ—… Anglicanae concernen ' quoddam Parliamentum nostruâ—… apud Civitatem nostram West duodecimo die Novembrâ—… prox futur ' teneri ordinavimus ibid. cum Praelatâ—… Magnatibus Proceribus dicti regni nostri colloquiuâ—… habere tract Tibi praecipimus firmiter injungentâ—… quod facta proclam in prox comitat ' tuo post receptioneâ—… hujus brevis nostri tenend ' die loco praedict duos miliâ—… gladiis cinct ' magis idoneos discretos comit ' praedictâ—… de qualib civitate com' illius duos Cives de quâ—…libet Burgo duos Burgenses de discretior ' magis suffcientibus libere indifferenter per illos qui proclam ' hâ—…jusmodi interfuerint juxta formam statutorum inde edâ—… provis ' eligi nomina eorundum milit ' civium â—… Burgensium sic electorum in quibusdam indentur ' intâ—…te illos qui hujusmodi election ' interfuerint inde confidend ' sive hujusmodi electi praesentes fuerint vel absentes inseri eósque ad dict' diem locum venire fac ' Ita quod iidem milites plenam sufficientem potestatem pro se communitate comit ' praedicti ac dict' Cives Burgenses pro se communitat ' Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi Consilio dicti reg nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem milit ' civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovismodo Nolumus autem quod tu nec aliquis alius vic' dicti reg nostri aliqualiter sit electus Et electionem illam in pleno comitatu factam distincte aperte sub sigillo tuo sigillis eorum qui electioni illi interfuerint nobis in cancellar ' nostram ad dict' diem locum certifices indilate remittens nobis alteram partem indenturarum praedictarum praesentibus consut ' una cum hoc breve Teste meipso apud Westmon The King to the Sheriff of Greeting WHereas by the Advice and Consent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of our Kingdom of England and the English Church We have ordained a certain Parliament of ours to be held at Our City of the day of next ensuing and there to have Conference and to treat with the Prelates Great men and Peers of our said Kingdom We command and straitly enjoyn you that making Proclamation at the next County-Court after the Receipt of this our Writ to be holden the day and place aforesaid You cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens of every Borough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen by them who shall be present at such Proclamation according to the Tenor of the Statutes in that case made and provided and the Names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the Parties so elected be present or absent and shall make them to come at the said day and Place so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Boroughs may have severally from them full and sufficient Power to Perform and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common-Councel of our said Kingdom concerning the Businesses aforesaid So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses But We will not in any case you or any other Sheriff of Our said Kingdom shall be elected And at the Day and Place aforesaid the said Election made in the full County-Court you shall certifie without Delay to Us in our Chancery under your Seal and the Seals of them which shall be present
the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after â—…he establishment of the Parliament by colour of it that â—…hey had so great Daring If any desire to know the â—…ause why Hen. 1. called the People to Parliament â—…t was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the â—…etter to assure himself against Robert his elder Brother â—…e flattered the People with those Charters yea King John â—…hat confirmed them had the like Respect for Arthur Dâ—… Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original â—…rom Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had â—…rst an obscure Birth by Usurpation and was fostered and â—…ewed to the World by Rebellion in brief the King calâ—…ed the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that â—…he Commons were not called unto Parliament until Hen. 3. dayes this appears by divers of the Precâ—…dents formerly cited to prove that the Barons weâ—… the Common Councel For though Hen. 1. called aâ—… the People of the Land to His Coronation and agaiâ—… in the 15. or 18. year of his Reign yet alwayes hâ—… did not so neither many of those Kings that diâ—… succeed him as appeareth before Secondly for calling the Commons by Writ find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words lâ—… ancient times after the King had summoned His Parliament innumerable multitudes of People did maâ—… their Access thereunto pretending that Privilege â—… Right to belong to them But King Hen. 3. haviâ—… Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that noâ—… might come to His Parliament but those who were specâ—…ally summoned To this purpose it is observed bâ—… Master Selden that the first Writs we find accompaniâ—… with other Circumstances of a Summons to Parliamenâ—… as well for the Commons as Lords is in the 49 â—… Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these Words King Hen. 3. out of a great Multitude which wâ—… seditious and turbulent called the very best by Writ â—… Summons to Parliament for he after many Troubles aâ—… Vexations between the King himself and Simon â—… Monefort with other Barons and after appeased dâ—…decree and ordain That all those Earls and Barons uâ—…to whom the King himself vouchsafed to direct Hâ—… Writs of Summons should come to his Parliament anâ—… no others but that which he began a little before hâ—… Death Edward 1. and his Successours constantly oâ—…served and continued The said prudent King Edwarâ—… summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Understanding Also Master Cambden in another place saith that in the time of Edw. 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Whereas Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Worthy Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath Ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10. H. 6. Our Lord the King ordained that Knightâ—… be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his Commandment hath ordained that if any Assault or Fray be made on them that comâ—… to Parliament or other Councel of the King the Parâ—… which made any such Affray or Assault shall pay doublâ—… Damages and make Fine and Ransom at the Kings Wilâ—… 23. H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8. Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That the said Statutes should be duely kept 2. That the Sheriffs shall deliver Precepts to Maiors and Bayliffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of
Knights Citizens and Burgesses 4. The Penalty of 40 l for Maiors or Bayliffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Free-holders but all others whosoever were present at the County-Court had Voices in such Elections see the Stat. 7. Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King Iames in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to givâ—… his best Advice to his Sovereign when he is thoughâ—… worthy to have his Councel asked 13. Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the Kings Honour the Salvation of the Realâ—… and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence haâ—… warily avoided to give Advice 13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and thâ—… Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of whicâ—… they had no Cognisance de queux ils n' ont pas de Cognisance 21. Edw. 3. Justice Thorp declaring to the Peeâ—… and Commons that the French War began by theiâ—… Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to havâ—… their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two dayes Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7. Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates oâ—… which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium finis Parliamentor as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate together and that it appears in Edward the Third's time the Lords and Commons satâ—… together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be indured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consulations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a settled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is but of late Use or Institution for in Edward the Sixth's dayes it was a Chappel of the Colledge of Saint Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at
patri G. eadem gratia Archiepiscopo Cantuarienâ—…i totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quiâ—…usdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicaâ—…ae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum â—…aeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis â—…n fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotioruâ—… arduitate periculis imminentibus cessante quacunquâ—… excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribâ—… praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrâ—…ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatiâ—… Praemonentes Decanum capitulum ecclesiae vestrae Caâ—…tuariensis ac Archidiacanos totumque Clerum vestrae Diâ—…cesis quod idem Decanus Archidiaconi in propriis peâ—…sonis suis ac dictum Capitulum per unum idemque Clerâ—… per duos Procuratores idoneos plenam sufficientem poâ—… statem ab ipsis Capitulo Clero habentes praedictis die â—… loco personaliter intersint ad consentiendum hiis quae tuâ—…ibidem de Commune Concilio ipsius Regni Nostri divinâ—… favente Clementia contigerint ordinari Teste Meipso apâ—… West c. CHARLES by the Grace of God c. To the moâ—… Reverend Father in Christ W. by the samâ—… Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by thâ—… Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the Statâ—… and Defence of Our Kingdom of England and 〈◊〉 the English Church We have Ordained a certaâ—… Parliament of Ours to be holden at W. c. aâ—… there to have Conference and to treat with you thâ—… Prelats Great men and Peers of Our said Kingdoâ—… We straitly Charge and Command by the Faiâ—… and Love by which you are bound to Us that coâ—…sidering the Difficulties of the Businesses aforesaiâ—… and the imminent Dangers and setting aside all Excuse you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safeguard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness Our Self â—…t Westm. The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. â—…s to the Temporal Barons But whereas the Spirituâ—…l Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons â—…re to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a â—…onsultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons â—…f the Exchequer the Kings Councel and the Maâ—…ters of the Chancery by their Writs But over and â—…esides this Power the Lords do exercise a decisive or Iudicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy the ordinary Duty or Office of a Iudge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Iudge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Iudges by their Commission oâ—… Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in Execution But Counsellors have no Power to command their Consultations to bâ—… executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weighâ—… the Advice of his Councel and at liberty to resolvâ—… according to the Judgment of the wiser part of hiâ—… Councel and not always of the greater In a word regularly a Counsellor hath no Power but in thâ—… Kings Presence and a Iudge no Power but out oâ—… his Presence These two Powers thus distinguished have yet such Correspondency and there is so neeâ—… Affinity between the Acts of judging and counselling that although the ordinary Power of the Judgâ—… is to give Judgment yet by their Oath they arâ—… bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and oâ—… the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Counsellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers we find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the Kings Presence that He may have Conference and treat with them the very Words of the Writ are nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the Kings Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part â—…n the Consultation this were to make the King â—… Subject Councel loseth the name of Councel â—…nd becomes a Command if it put a Necessiâ—…y upon the King to follow it such Imperious Councels make those that are but Counsellors â—…n name to
be Kings in Fact and Kings themselves to be but Subjects We read in Sir Roâ—…ert Cotton that towards the end of the Saxons and â—…he first times of the Norman Kings Parliaments stood 〈◊〉 Custom-grace fixed to Easter Whitsontide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly fâ—… Guests to bar Him their Company who gave them theâ—… Entertainment And although now a-days the Parliament sit not in the Court where the Kings housholâ—… remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward oâ—… the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takeâ—… the Oaths of the Members of the House of Commoâ—… the first day of the Parliament Sir Richard Sâ—…roop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament iâ—… the Great Chamber put I. Lord Gomeniz and William Weston to answer severally to Accusations broughâ—… against them The Necessity of the King's Presence in Parliamenâ—… appears by the Desire of Parliaments themselves iâ—…former times and the Practice of it Sir Robert Cottoâ—… proves by several Precedents whence he concludeâ—… that in the Consultations of State and Decisions of private Plaints it is clear from all times the King wâ—… not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the finaâ—… Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of theiâ—… Sex being not so fit for publick Assemblies have brought it out of Use by which means it is comâ—… to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in His absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is constantly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supream Judge All Judgement is by or under Him it cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges â—…n the Cause wherein Himself was a Party and He â—…atified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with Hope of Edward the Confessor's Favour he solicited the Lords â—…o intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King â—…resently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Iudgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard My Appeal and Godwins Answer I Will that in this Appeal between Us ye decree right Iudgment and do true Iustice. The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his War by Law against the King in his Appeal but most wholly put himself into the Kings Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the Kings Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by compromise submitted to the Judgment of the King of England And the King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgement 2 Of King Iohn also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom and Will of the King Concilio regni voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Buxall was commanded safely to keep the said William untill he hath other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns and Castles of Ardee and for that he was a Gentleman and Bannaret and had served the late King he should be beheaded and for that our Lord the King was not informed of the manner of the Iudgment the Execution thereof
Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners aâ—… Bailiffs for concealing of Felonies shall make grievoâ—… Fines at the Kings pleasure Chap. 13. Ordains That such as be found culpablâ—… of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoâ—…er that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he thâ—… shall take Reward for deliverance of such shall be at thâ—… Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall maâ—… Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they takâ—… shall be Grievously punished at the Kings pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to Treat upon Debates between Us and certain Great Men it was accorded that in our next Parliament provision shall be made by Us and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from Religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Underwoods and Bushes in High-wayes murder be done the Lord shall make Fine at the Kings pleasure 28 Edw. 1. If a Gold-smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by Ransome at the Kings pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the gift of any Subsidy to which the King answers He would conferr with the Lords and do what should be best according to their Adâ—…ice and the last day of Parliament He gave this Anâ—…er That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of then Petitions or knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any wayes change the Good Customs and Usages Made and Used of Antient Times 5 Hen. 4. c. 6. Whereas one Savage did Beat and maime one Richard Chedder Esquire Menial Servanâ—… to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTESTAS PRINCIPIS NON EST INCLUSA LEGIBUS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. we read of a Restitution iâ—… Bloud and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regalty to grant or deny such of their Petitions as pleaseth Himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King oâ—… Sovereign Lord calling to His remembrance the duty of Allegiance of His Subjects of this His Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in His Wars for the Defence of Him and the Land against every Rebellion Power and Might reared against Him and with Him to enter and abide in Service in Battel if Case so require and that for the same Service what fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by his Commandement within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same Year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against His Rebels and Enemies for the Subduing and Repressing of them and their malitious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Commonwealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen and that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He â—…ished not the making of many Laws since the more we make the less Liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edw. Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Io. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of the Commons which being received by the King part He received part He put out and part he ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been alwayes acknowledged for Laws and Statutes We have amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14 Hen. 3. which is nothing but a Letter of the King to Gerard Son of
Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
Privileges each of them insomuch that the United Provinces and united Cantons are but Confederacies and Leaguers and not two entire Commonweals Associates onely for mutual Defence Nay the Cantons of Swisserland are not only several Republicks but reputed to have different Forms of Commonweals some being said to be Aristocratically governed and others Democratically as the Mountaineers and some of the Cantons are Papists and some Protestants and some mixt of both we do not find that any large or great Dominion or Kingdom united in one Government and under the same Laws was ever reduced at once to any kind of Popular Government and not confined to the subjection of one City This being a thing not yet done requires the abler men to settle such a Peaceable Government as is to be desired there being no Precedent in the case all that can be done in it is at first to enquire into such other Governments as have been existent in the World As a Preface to such an Enquiry the Sacred Scripture if it be but for the Antiquity of it would be consulted and then Aristotle the grand Master of Politiques and after him the Greek and Latin Historians that lived in Popular times would be diligently examined To excite others of greater Abilities to an exacter Disquisition I presume to offer a Taste of some Doctrines of Aristotle which are usher'd in with a briefer Touch of the Holy Scriptures It is not probable that any sure direction of the beginning of Government can be found either in Plato Aristotle Cicero Polybius or in any other of the Heathen Authors who were ignorant of the manner of the Creation of the World we must not neglect the Scriptures and search in Philosophers for the grounds of Dominion and Property which are the main Principles of Government and Iustice. The first Government in the World was Monarchical in the Father of all Flesh. Adam being commanded to multiply and People the Earth and to subdue it and having Dominion given him over all Creatures was thereby the Monarch of the whole World none of his Posterity had any Right to possess any thing but by his Grant or Permission or by Succession from him the Earth saith the Psalmist hath he given to the Children of men which shews the Title comes from Fatherhood There never was any such thing as an Independent Multitude who at first had a natural Right to a Community this is but a Fiction or Fancy of too many in these dayes who please themselves in running after the Opinions of Philosophers and Poets to find out such an Original of Government as might promise them some title to Liberty to the great Scandal of Christianity and bringing in of Atheism since a natural freedom of mankind cannot be supposed without the denial of the Creation of Adam And yet this conceit of Original Freedom is the only Ground upon which not only the Heathen Philosophers but also the Authors of the Principles of the Civil Law and Grotius Selden Hobs Ashâ—…am and others raise and build their Doctrines of Government and of the severâ—… sorts or kinds as they call them of Common-wealths Adam was the Father King and Lord over his Family a Son a Subject and a Servant or a Slave were one and the same thing at first the Father had power to dispose â—… sell his Children or Servants whence we find that at the first reckoning up of Goods iâ—… Scripture the Man-servant and the Maid-servant are numbred among the Possessions and Substance of the Owner as other Goods worâ—… As for the names of Subject Slave and Tyrant they are not found in Scripture but what we now call a Subject or a Slave is then named no other than a Servant I cannot learn that either the Hebrew Greek or Latin have any proper and Original Word for a Tyrant or a Slave it seems these are names of later invention and taken up in disgrace of Monarchical Government I cannot find any one place or Text in the Bible where any Power or Commission is given to a People either to govern themselves oâ—… to choose themselves Governours or to alter the manner of Government at their pleasure the Power of Government is settled and fixed by the Commandement of Honour thy Father if there were a higher Power than the Fatherly then this Commandement could not stand and be observed Whereas we read in Scripture of some Actions of the People in setting up of Kings further than to a naked Declaration by a part of the People of their Obedience such Actions could not amount since we find no Commission they have to bestow any Right a true representation of the People to be made is as impossible as for the whole People to Govern the names of an Aristocracy a Democracy a Commonweal a State or any other of like signification are not to be met either in the Law or Gospel That there is a ground in Nature for Monarchy Aristotle himself affirmeth saying the first Kings were Fathers of Families as for any ground of any other Form of Government there hath been none yet alleged but a supposed natural Freedom of Mankind the Proof whereof I find none do undertake but only beg it to be granted We find the Government of Gods own People varied under the several Titles of Patriarchs Captains Iudges and Kings but in all these the Supreme Power rested still in one Person onely We no where find any Supreme Power given to the People or to a Multitude in Scripture or ever exercised by them The People were never the Lords â—…nointed nor called Gods nor Crowned nor â—…d the Title of Nursing-Fathers Gen. 35. 11. The Supreme Power being an indivisible Beam of Majesty cannot be divided among or settled upon a Multitude God would have it fixed in one Person not sometimes in one part of the People and sometimes in another and sometimes and that for the most part no where as when the Assembly is dissolved it must rest in the Air or in the walls of the Chamber when they were Assembled If there were any thing like a Popular Government among Gods People it was about the time of the Judges when there was no King in Israel for they had then some small Show of Government such as it was but it was so poor and beggarly that the Scripture brands it with this note that every man did what was right in his own eyes because there was no King in Israel it is not said because there was no Government but because there was no King it seems no Government but the Government of a King in the judgment of the Scriptures could restrain men from doing what they listed where every man doth what he pleaseth it may be truly said there is no Government for the end of Government is that every man should not do what he pleased or be his own Iudge in his own case for the Scripture to say theâ—… was no King is to say there was no Form oâ—…
Government in Israel And what the Old Testament teacheth us we have confirmed in the New If Saint Paul had onely said Let every Soul be subject to the higher Powers and said no more then men might have disputed whether Saint Paul by higher Powers had not meant as well other Governours as Kings or other Forms of Government as Monarchy but the good luck is Saint Paul hath been his own Interpreter or Comment for after the general Doctrine of Obedience to be given by all men to the higher Powers he proceeds next to charge it home and lay it to the Conscience under pain of Damnation and applies it to each particular mans Conscience saying Wilt thou not be afraid of the Power which Power he expounds in the singular number restraining it to one Person saying He is the Minister of God to thee it is not They are the Ministers to thee and then again He beareth not the Sword in vain and then a third time in the same verse lest thou should'st forget it he saith for He is the Minister of God a Revenger to Wrath c. upon thee if Saint Paul had said They are the Ministers of God or They bear not the Sword in vain it might be doubted whether they were meant of Kings onely or of other Governours also but this Scruple is taken away by the Apostle himself And as St. Paul hath expounded what he means by Higher Powers so St. Peter also doth the like for the self-same Word that St. Paul useth for Higher in Saint Peter is translated Supreme so that though in our English Bibles the words differ yet in the Original they are both the same so that St. Paul might have been Englished Let every Soul be subject to the Supreme Power or St. Peter might have been translated whether to the King as to the higher yet there is this difference that whereas St. Paul useth the word in the Plural number St. Peter hath it in the Singular and with application to the King It will be said Though St. Peter make the King Supreme yet he tells us the King is a humane Ordinance or a Creature of the People's But it is answered Kings may be called an humane Ordinance for being made of one of the People and not by the People and so are humane in Regard of their material Cause not of their efficient If St. Peter had meant that Kings had been made by the People he must also have meant that Governours had been made by the People for he calls the Governours as well an Ordinance of Man as the King for his woods are Submit your selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or whether it be to Governours but Saint Peter sheweth that Governours are not made by the People for he saith they that are sent by Him not by them for the punishment of Evil doers so that the Governours are sent by the King and not by the People some would have sent by him to be sent by God but the Relative must be referr'd to the next Antecedent which is the King and not God Besides if Governours be sent by God and Kings by the People then Governours would be Supreme which is contrary to Saint Peter's Doctrine and it will follow that the People have not the power of choosing Representers to Govern if Governours must be sent of God The safest sense of Saint Peter's words is Submit your selves to all Humane Laws whether made by the King or by his Subordinate Governours So the King may be called a Humane Ordinance as being all one with a Speaking Law the word in the Original is Be subject to every humane Creation it is more proper to call a Law made by a King a creation of an Ordinance than the Peoples choosing or declaring of a King a Creation of him But take the words in what sense soever you will it is most evident that Saint Peter in this place takes no notice of any Government or Governours but of a King and Governours sent by him but not by the People And â—…t is to be noted That St. Peter and St. Paul â—…he two chief of the Apostles wrote their Epistles at such a time when the name of a Popular Government or of the People of Rome was at least so much in Shew and in Name that many do believe That notwithstanding the Emperours by strong hand usurped a Military Power yet the Government was for a long time in most things then in the Senate and People of Rome but for all this neither of the two Apostles take any notice of any such Popular Government No nor our Saviour himself who divides all between God and Caesar and allows nothing that we can find for the People OBSERVATIONS UPON Aristotles Politiques TOUCHING Forms of Government WHAT cannot be found in Scripture many do look for in Aristotle for if there be any other Form of Government besides Monarchy he is the man best able â—…o tell what it is and to let us know by what name â—…o call it since the Greek Tongue is most happy in â—…ompounding Names most significant to express the nature of most things The usual terms in this Age of Aristocraty and Democraty are taken up from him â—…o express Forms of Government most different from Monarchy We must therefore make inquiry into Aristotle touching these two Terms True it is Aristotle seems to make three sorts of Government which he diâ—…inguisheth by the Soveâ—…ignty of one man or of a â—…w or of many for the â—…ommon Good These he saith are rigâ—… or perfect Governments 〈◊〉 those that are for the privaâ—… Good of one or of a few 〈◊〉 of a Multitude are Transgressions The Government of a Monarchy for the Common Good he calls a Kingdom The Government of a few more than one an Aristocratie either beeâ—… the best men govern or because it is for the best of 〈◊〉 governed when a Multitude governs for the comâ—… Good it is called by the common name of all Governments a POLITIE It is possible that one 〈◊〉 few may excell in Vertue but it is difficult for many excell in all Vertue except in Warlike Affairs for 〈◊〉 is natural in a Multitude therefore in this sort of Government their principal Use is to war one for another and to possess the Arms or Ammunition The Transgâ—…sions of Government before spoken of are these â—…ranny is the Transgression of the Kingdom and Dâ—…mocratie is the Transgression of the Politie For Tyâ—… is a Monarchy for the Benefit of the Monarch the Oligâ—…chy for the Profit of the Rich the Democratie for the â—…nefit of the Poor None of these are for the Comâ—… Good Here Aristotle if he had stood to his own Prinâ—…ples should have said an Oligarchy should be for 〈◊〉 Benefit of a few and those the best and not for the 〈◊〉 of the rich and a Democratie for the Benefit of 〈◊〉 and not of the
Poor only for so the Opposition â—…eth but then Aristotle saw his Democratie wouâ—… prove to be no Transgression but a perfect Politie 〈◊〉 his Oligarchy would not be for the Benefit of a few and those the best men for they cannot be the best men that seek onely their private Profit In this Chapter the mind of Aristotle about the several kinds of Government is clearliest delivered as being the foundation of all his Books of Politiques it is the more necessary to make a curious Observation of these his Doctrines In the first place he acknowledgeth the Government of one man or of a Monarchy and that is a perfect Form of Government Concerning Monarchy Aristotle teacheth us the beginning of it for saith he the first Society made of many Houses is a Colony which seems most naturally to be a Colony of Families or Foster-bretheren of Children and Childrens children And therefore at the beginning Cities were and now Nations under the Government of Kings the Eldest in every house is King and so for Kindred sake it is in Colonies Thus he deduced the Original of Government from the Power of the Fatherhood not from the Election of the People This it seems he learnt of his Master Plato who in his third Book of Laws affirms that the true and first Reason of Authority is that the Father and Mother and simply those that beget and ingender do command and rule over all their Children Aristotle also tells us from Homer that every man gives Laws to his Wife and Children In the fourth Book of his Politiques cap. 2. he gives to Monarchy the Title of the first and divinest sort of Government defining Tyranny to be a Transgression from the first and divinest Again Aristotle in the eighth Book of his Ethicks in the 12 Chapter saith That of the right Kinds of Government a Monarchy was the best and a popular Estate the worst Lastly in the third Book of his Politiques and the sixteenth Chapter concerning Monarchy he saith that A perfect Kingdom is that wherein the King rules all things according to his own Will for he that is called a King according to the Law makes no kind of Government Secondly he saith there is a Government of a few men but doth not tell us how many those few men may or must be only he saith they must be more than one man but how many that he leaves uncertain This perfect Government of a few any man would think Aristotle should have called an Oligarchy for that this word properly signifies so much but in stead of the Government of a few Aristotle gives it a quite other name and terms it an Aristocraty which signifies the Power of the best the reason why it is called an Aristocraty saith Aristotle is for that there the best men govern or because that is not always true for that it is for the best of the governed by this latter reason any Government and most especially a Monarchy may be called an Aristocraty because the End of Monarchy is for the best of the governed as well as the End of an Aristocraty so that of these two Reasons for calling the Government of a few an Aristocratie the first is seldome true and the latter is never sufficient to frame a distinction This Aristotle himself confesseth in his next Chapter saying that the Causes aforesaid do not make a Difference and that it is Poverty and Riches and not Few and Many that makes the Difference between an Oligarchy and Democraty there must be an Oligarchy where rich men rule whether they be few or many and wheresoever the Poor have the Sovereignty there must be a Democraty Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a Democratâ—… these two must likewise make the Difference between an Aristocraty and a Polity for the only Difference Aristotle makes between them is in their Ends and not in their Matter for the same few men may make an Aristocraty if their End be the Common Good and they may be an Oligarchy if they aim only at their private Benefit Thus is Aristotle distracted and perplexed how to distinguish his Aristocratie whether by the smallness of their Number or by the Greatness of their Estates Nay if we look into Aristotles Rhetoriques we shall find a new Conceit not only about Aristocratie but also about the sorts of Government for whereas he has taught us in his Politiques that there be three sorts of right or perfect Government and as many sorts of wrong which he calls Transgressions or Corruptions he comes in his Rhetoriques and teacheth us that there be four sorts of Government 1 A Democratie when Magistracies are distributed by Lots 2. In an Oligarchy by their Wealth 3. In an Aristocratie by their Instructions in the Law It is necessary for these to appear the best from whence they have their name 4. A Monarchy according to the name wherein one iâ—… Lord over all Here we see Aristocratie is not distinguished by smallness of Number nor by Riches but by Skill in the Laws for he saith those that are instructed in the Laws govern in an Aristocratie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Point 〈◊〉 dreamt of in his Politiques by which it seems Aristotle himself did not know well what he would haâ—… to be an Aristocratie And as he cannot teach us truly what an Aristocratie is so he is to seek to tells us where any Aristocratie ever was even himself seems to doubt whether there be any such Form of Government where he saith in his third Book of Politiques cap. 5. It is impossible for any Mechanical man to be a Citizen in an Aristocratie if there be any such Government as they call Aristocratical His if makes him seem to doubt of it yet I find him affirm that the Commonwealth of Carthage was Aristocratical he doth not say it was an Aristocratie for he confesseth it had many of the Transgressions which other Commonwealths had and did incline either to a Democratie or an Oligarchy The Government of Carthage did transgress from an Aristocratie to an Oligarchy And he concludes that if by Misfortune there should happen any Discord among the Carthaginians themselves there would be no Medicine by Law found out to give it Rest wherein me-thinks Aristotle was a kind of Prophet for the Discords between the Citizens of Carthage were the main Cause that Hannibal lost not only Italy but Carthage it self By these few Collections we may find how uncertain Aristotle is in determining what an Aristocratie is or where or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of
many several Forms of corrupted Governments yet he insists upon no one Form of all those that he can define or describe in such sort that he is able to say that any one City in all Greece was governed just according to such a Form his diligence is only to make as many Forms as the giddy or inconstant Humour of a City could happen upon he freely gives the People Liberty to invent as many Kinds of Government as they please provided he may have Liberty to find Fault with every one of them it proved an easier Work for him to find Fault with every Form then to tell how to amend any one of them he found so many Imperfections in all sorts of Commonweals that he could not hold from reproving them before ever he tells us what a Commonweal is or how many sorts there are and to this Purpose he spends his whole second Book in setting out and correcting the chief Commonweals of Greece and among others the Lacedemonian the Cretan and Carthaginian Commonweals which three he esteems to be much alike and better than any other yet he spares not to lay open their Imperfections and doth the like to the Athenian wherein he breaks the Rule of Method by delivering the Faults of Commonweals before he teach us what a Commonweal is for in his first Book he speaks only of the Parts of which a City or a Commonweal is made but tells â—…s not what a City or Commonweal is untill he â—…ome to his third Book and there in handling the sorts of Government he observes no Method at all but in a disorderly way flies backward and forward from one sort to another and howsoever there may be observed in him many Rules of Policy touching Government in general yet without Doubt where he comes to discourse of particular Forms he is full of Contradiction or Confusion or both it is true he is brief and difficult the best Right a man caâ—… do him is to confess he understands him not yeâ—… a diligent Reader may readily discern so many Irregularities and Breaches in Aristotle's Books of Politiques as tend to such Distraction or Confusion thâ—… none of our new Politicians can make Advantage of his Principles for the Confirmation of an original Power by Nature in the People which is the only Theme now in Fashion For Aristotle's Discourse is of such Commonweals as were founded by particular Persons as the Chaleedonian by Phaleas the Milesian by Hippodamas the Lacedemonian by Lyeuâ—…gus the Cretan by Minos the Athenian by Solon and the like But the natural Right of the People to found or elect their Kind of Government is not once disputed by him It seems the underived Majesty of the People was such a metaphysical piece oâ—… Speculation as our grand Philosopher was not acquainted with he speaks very contemptuously 〈◊〉 the Multitude in several Places he affirms that the People are base or wicked Iudges in their own Cases 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that many of them differ nothing from beast 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and again 〈◊〉 saith The Common People or Freemen 〈◊〉 such as are neither Rich nor in Reputation for Vertuâ—… and it is not safe to commit to them great Governmentâ—… for by reason of their Injustice and Unskilfulness they would do much Injustice and commit many Errours and it is pleasanter to the multitude to live Disorderly than Soberly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If Aristotle had believed a Publick Interest to have been in the People to the enabling them to be their own carvers in point of Government he would never have entangled himself with such intricate and ambiguous Forms of Commonweals as himself cannot tell how to explain nor any of his Commentators how to understand or make Use of This one Benefit I have found by Reading Aristotle that his Books of Politiques serve for an admirable Commentary upon that Text of Scripture which saith In those dayes there was no King in Israel every man did that which was right in his own eyes For he grants a liberty in every City for any man or multitude of men either by Cunning or Force to set up what Government they please and he will allow some name or other of a Commonweal which in effect is to allow every man to do what he lists if he be able hence it is that by the confession of Aristotle the first Commonweals in Greece after Kings were given over were made of those that waged War those several kinds of Commonweals were all summed up into the government of an Army for a it is saith Aristotle in their power who manage Arms to continue or not continue the Form of Government whereby the Estate is governed which is nothing else but a Stratocratie or Military Government We cannot much blame Aristotle for the Incertainty and Contrariety in him about the sorts of Government if we consider him as a Heathen for it is not possible for the Wit of man to search out the first Grounds or Principles of Government which necessarily depend upon the original of Property except he know that at the Creation one man alone was made to whom the Dominion of all things was given and from whom all men derive their Title This Point can be learnt only from the Scriptures as for the imaginary Contract of People it is a Fancy not improbable only but impossible except a multitude of men at first had sprung out and were engendred of the Earth which Aristotle knows not whether he may believe or no If Justice which is to give every man his Due be the End of Government there must necessarily be a Rule to know how any man at first came to have a Right to any thing to have it truly called his This is a Point Aristotle disputes not nor so much as ever dreamt of an original Contract among People he looked no farther in every City than to a Scambling among the Citizens whereby every one snatcht what he could get so that a violent Possession was the first and best Title that he knew The main Distinction of Aristotle touching perfect or Right Forms of Government from those that are imperfect or corrupt consists solely in this Point that where the Profit of the governed is respected there is a right Government but where the Profit of the Governours is regarded there is a Corruption or Transgression of Government By this it is supposed by Aristotle that there may be a Government only for the Benefit of the Governours this Supposition to be false may be proved from Aristotle himself I will instance about the Point of Tyranny Tyranny saith Aristotle is a despotical or masterly Monarchy now he confesseth that in truth the masterly Government is profitable both to the Servant by Nature and the Master by Nature and he yields a solid reason for it saying It is not possible if the Servant be destroyed that the Mastership
Centuries This Assembly by Centuries as it was more Ancient than that by Tribes so it was more truly popular because all the Nobility as well as the Commons had Voices in it The Assembly by Tribes was pretended at first only to elect Tribunes of the People and other inferiour Magistrates to determine of lesser Crimes that were not Capital but only finable and to decree that Peace should be made but they did not meddle with denouncing War to be made for that high Point did belong only to the Assembly of the Centuries and so also did the judging of Treason and other Capital Crimes The Difference between the Assembly of the Tribes and of the Centuries is very material for though it be commonly thought that either of these two Assemblies were esteemed to be the People yet in Reality it was not so for the Assembly of the Centuries only could be said to be the People because all the Nobility were included in it as well as the Commons whereas they were excluded out of the Assembly of the Tribes and yet in Effect the Assembly of the Centuries was but as the Assembly of the Lords or Nobles only because the lesser and richer part of the People had the Sovereignty as the Assembly of the Tribes was but the Commons only In maintenance of the popular Government of Rome Bodin objects that there could be no regal Power in the two Consuls who could neither make Law nor Peace nor War The Answer is though there were two Consuls yet but one of them had the Regality for they governed by Turns one Consul one Moneth and the other Consul another Moneth or the first one day and the second another day That the Consuls could make no Laws is false it is plain by Livy that they had the Power to make Laws or War and did execute that Power though they were often hindered by the Tribunes of the People not for that the Power of making Laws or War was ever taken away from the Consuls or communicated to the Tribunes but onely the Exercise of the Consular Power was suspended by a seeming humble way of intercession of the Tribunes The Consuls by their first Institution had a lawful Right to do those things which yet they would not do by reason of the shortness of their Reigns but chose rather to countenance their actions with the title of a Decree of the Senate who were their private Councel yea and sometimes with the Decree of the Assembly of the Centuries who were their Publick Counsel for both the Assembling of the Senate and of the Centuries was at the Pleasure of the Consuls and nothing was to be propounded in either of them but at the Will of the Consuls which argues a Sovereignty in them over the Senate and Centuries the Senate of Rome was like the House of Lords the Assembly of the Tribes resembled the House of Commons but the Assembling of the Centuries was a Body composed of Lords and Commons united to Vote together The Tribunes of the People bore all the Sway among the Tribes they called them together when they pleased without any Order whereas the Centuries were never Assembled without Ceremony and Religious observation of the Birds by the Augurs and by the Approbation of the Senate and therefore were said to be auspicata and ex authoritate Patrum These things considered it appears that the Assembly of the Centuries was the only legitimate and great Meeting of the People of Rome as for any Assembling or Electing of any Trustees or Representors of the People of Rome in nature of the modern Parliaments it was not in Use or ever known in Rome Above two hundred and twenty years after the expulsion of Kings a sullen humour took the Commons of Rome that they would needs depart the City to Ianiculum on the other side of Tybur they would not be brought back into the City until a Law was made That a Plebiscitum or a Decree of the Commons might be observed for a Law this Law was made by the Dictator Hortensius to quiet the Sedition by giving a part of the Legislative Power to the Commons in such inferiour matters only as by Toleration and Usurpation had been practised by the Commons I find not that they desired an Enlargement of the Points which were the Object of their Power but of the Persons or Nobility that should be subject to their Decrees the great Power of making War of creating the greater Magistrates of judging in Capital Crimes remained in the Consuls with the Senate and Assembly of the Centuries For further manifestation of the broken and distracted Government of Rome it is fit to consider the original Power of the Consuls and of the Tribunes of the Commons who are ordinarily called the Tribunes of the People First it is undeniable that upon the expulsion of Kings Kingly power was not taken away but only made Annual and changeable between two Consuls who in their Turns and by course had the Sovereignty and all Regal power this appears plainly in Livy who tells us that Valerius Publicola being Consul he himself alone ordained a Law and then assembled a general Session Turemillus Arsa inveighed and complained against the Consul's Government as being so absolute and in Name only less odious than that of Kings but in Fact more cruel for instead of one Lord the City had received twain having Authority beyond all Measure unlimited and infinite Sextius and Licinus complain that there would never be any indifferent Course so long as the Nobles kept the Sovereign Place of Command and the Sword to strike whiles the poor Commons have only the Buckler their Conclusion was that it remains that the Commons bear the Office of Consuls too for that were a Fortress of their Liberty from that day forward shall the Commons be Partakers of those things wherein the Nobles now surpass them namely Sovereign Rule and Authority The Law of the twelve Tables affirms Regio imperio duo sunto iique Consules appellantor Let two have regal Power and let them be called Consuls also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls These are proofs sufficient to shew the Royal Power of the Consuls About sixteen years after the first Creation of Consuls the Commons finding themselves much run into Debt by wasting their Estates in following the Wars and so becoming as they thought oppressed by Usury and cast into Prison by the Judgment and Sentence of the Consuls they grievously complained of Usury and of the Power of the Consuls and by Sedition prevailed and obtained Leave to choose among themselves Magistrates called Tribunes of the People who by their Intercession might preserve the Commons from being oppressed and suffering Wrong from the Consuls and it was further agreed that the Persons of those Tribunes should be sacred and not to be touched by any By means of this Immunity of
their Councel extraordinary that by their Advice they might countenance and strengthen such Actions as were full of Danger and Envy and thus the Consuls by weakening their original Power brought the Government to Confusion civil Dissension and utter Ruine so dangerous a thing it is to shew Favour to Common People who interpret all Graces and Favours for their Rights and just Liberties the Consuls following the Advice of the Senate or People did not take away their Right of Governing no more than Kings lose their Supremacy by taking Advice in Parliaments Not only the Consuls but also the Pretors and Censors two great Offices ordained only for the ease of the Consuls from whom an Appeal lay to the Consuls did in many things exercise an arbitrary or legislative Power in the Absence of the Consuls they had no Laws to limit them for many Years after the Creation of Consuls ten men were sent into Greece to choose Laws and after the 12 Tables were confirmed whatsoever the Pretors who were but the Consuls Substitutes did command was called jus honorarium and they were wont at the Entrance into their Office to collect and hang up for publick View a Form of Administration of Justice which they would observe and though the edictum Praetoris expired with the Pretoâ—… Office yet it was called Edictum perpetuum What Peace the Low-Countries have found since their Revolt is visible it is near about an hundred Years since they set up for themselves of all which time only twelve years they had a Truce with the Spaniard yet in the next year after the Truce was agreed upon the War of Iuliers brake forth which engaged both Parties so that upon the matter they have lived in a continued War for almost 100 Years had it not been for the Aid of their Neighbours they had been long ago swallowed up when they were glad humbly to offer their new hatch'd Commonweal and themselves Vassals to the Queen of England after that the French King Hen. 3. had refused to accept them as his Subjects That little Truce they had was almost as costly as a War they being forced to keep about thirty thousand Souldiers continually in Garrison Two things they say they first fought about Religion and Taxes and they have prevailed it seems in both for they have gotten all the Religions in Christendome and pay the greatest Taxes in the World they pay Tribute half in half for Food and most necessary things paying as much for Tribute as the price of the thing sold Excise is paid by all Retailers of Wine and other Commodities for each Tun of Beer six Shillings for each Cow for the Pail two Stivers every week for Oxen Horses Sheep and other beasts sold in the Market the twelfth part at least be they never so oft sold by the year to and fro the new Master still pays as much they pay five Stivers for every Bushel of their own Wheat which they use to grinde in publick Mills These are the Fruits of the Low-Country War It will be said that Venice is a Commonwealth that enjoys Peace She indeed of all other States hath enjoyed of late the greatest Peace but she owes it not to her kind of Government but to the natural Situation of the City having such a Banck in the Sea of neer threescore Miles and such Marshes towards the Land as make her unapproachable by Land or Sea to these she is indebted for her Peace at home and what Peace she hath abroad she buys at a dear Rate and yet her Peace is little better than a continued War The City always is in such perpetual Fears that many besieged Cities are in more Security a Senator or Gentleman dares not converse with any Stranger in Venice shuns Acquaintance or dares not own it they are no better than Banditos to all humane Society Nay no People in the World live in such Jealousie one of another hence are their intricate Solemnities or rather Lotteries in Election of their Magistrates which in any other Place would be ridiculous and useless The Senators or Gentlemen are not only jealous of the Common People whom they keep disarmed but of one another they dare not trust any of their own Citizens to be a Leader of their Army but are forced to hire and entertain Foreign Princes for their Generals excepting their Citizens from their Wars and hiring others in their Places it cannot be said that People live in Peace which are in such miserable Fears continually The Venetians at first were subject to the Româ—… Emperour and for fear of the Invasion of the Hunnes forsook Padua and other places in Italy and retired with all their Substance to those Islandâ—… where now Venice stands I do not read they had any Leave to desert the defence of their Prince and Countrey where they had got their Wealth much less to set up a Government of their own it was no better than a Rebellion or Revolting from the Roman Empire At first they lived under a kind of Oligarchy for several Islands had each a Tribune who all met and governed in common but the dangerous Seditions of their Tribunes put a necessity upon them to choose a Duke for Life who for many hundreds of years had an Absolute Power under whose Government Venice flourished most and got great Victories and rich Possessions But by insensible degrees the Great Councel of the Gentlemen have for many years been lessening the Power of their Dukes and have at last quite taken it away It is a strange Errour for any man to believe that the Government of Venice hath been alwayes the same that it is now he that reads but the History of Venice may find for a long time a Sovereign Power in their Dukes and that for these last two hundred years since the diminishing of that Power there hath been no great Victories and Conquests obtained by that Estate That which exceeds admiration is that Contareâ—… hath the confidence to affirm the present Government of Venice to be a mixed Form of Monarchy Democratie and Aristocratie For whereas he makes the Duke to have the Person and Shew of a King he after confesseth that the Duke can do nothing at all alone and being joyned with other Magistrates he hath no more Authority than any of them also the power of the Magistrates is so small that no one of them how great soever he be can determine of any thing of moment without the allowance of the Councel So that this Duke is but a man dressed up in Purple a King only in Pomp and Ornament in Power but a Senator within the City a Captive without a Traytor if he go without Leave As little reason is there to think a Popular Estate is to be found in the great Councel of Venice or S. P. Q. U. for it doth not consist of the fortieth part of the People but only of those they call Patritians or Gentlemen for the Commons neither by
supreme then the Fatherly power must submit to it and cannot be exercised without the Licence of the People which must quite destroy the frame and course of Nature Even the Power which God himself exerciseth over Mankind is by Right of Fatherhood he is both the King and Father of us all as God hath exalted the Dignity of Earthly Kings by communicating to them his own Title by saying they are gods so on the other side he hath been pleased as it were to humble himself by assuming the Title of a King to express his Power and not the Title of any popular Government we find it is a punishment to have no King Hosea ch 3. 4. and promised as a Blessing to Abraham Gen. 17. 6. that Kings shall come out of thee Every man hath a part or share in the preservation of Mankind in general he that usurps the Power of a Superiour thereby puts upon himself a Necessity of acting the Duty of a Superiour in the Preservation of them over whom he hath usurped unless he will aggravate one heinous Crime by committing another more horrid he that takes upon him the Power of a superiour sins sufficiently and to the Purpose but he that proceeds to destroy both his Superiour and those under the Superiours Protection goeth a Strain higher by adding Murther to Robbery if Government be hindered mankind perisheth an Usurper by hindering the Government of another brings a Necessity upon himself to govern his Duty before Usurpation was only to be ministerial or instrumental in the preservation of others by his Obedience but when he denies his own and hinders the Obedience of others he doth not only not help but is the Cause of the Distraction in hindering his Superiour to perform his Duty he makes the Duty his own if a Superiour cannot protect it is his part to desire to be able to do it which he cannot do in the Future if in the present they be destroyed for want of Government therefore it is to be presumed that the Superiour desires the preservation of them that should be subject to him and so likewise it may be presumed that an Usurper in general doth the Will of his Superiour by preserving the People by Government and it is not improper to say that in obeying an Usurper we may obey primarily the true Superiour so long as our Obedience aims at the preservation of those in Subjection and not at the Destruction of the true Governour Not only the Usurper but those also over whom Power is usurped may joyn in the preservation of themselves yea and in the preservation sometimes of the Usurper himself Thus there may be a conditional Duty or Right in an Usurper to govern that is to say supposing him to be so wicked as to usurp and not willing to surrender or forego his Usurpation he is then bound to protect by Government or else he encreaseth and multiplyeth his Sin Though an Usurper can never gain a Right from the true Superiour yet from those that are Subjects he may for if they know no other that hath a better Title than the Usurper then as to them the Usurper in Possession hath a true Right Such a qualified Right is found at first in all Usurpers as is in Theives 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 such Usurpers to divers Intents and Purposes may be obeyed Neither is he only an Usurper who obtains the Government but all they are Partakers in the Usurpation who have either failed to give Assistance to their lawful Sovereign or have given Aid either by their Persons Estates or Counsels for the Destroying of that Governour under whose Protection they have been born and preserved for although it should be granted that Protection and Subjection are reciprocal so that where the first fails the latter ceaseth yet it must be remembred that where a man hath been born under the Protection of a long and peaceable Government he owes an Assistance for the preservation of that Government that hath protected him and is the Author of his own Disobedience It is said by some that an usurped Power may be obeyed in things that are lawful but it may not be obeyed not only in lawful things but also in things indifferent Obedience in things indifferent is necessary not indifferent For in things necessarily good God is immediately obeyed Superiours only by Consequence If men command things evil Obedience is due only by tolerating what they inflict not by performing what they require in the first they declare what God commands to be done in the latter what to be suffered so it remains that things indifferent only are the proper Object of humane Laws Actions are to be considered simply and alone and so are good as being Motions depending on the first Mover or jointly with Circumstances And that in a double Manner 1. In Regard of the Ability or Possibility whilest they may be done 2. In the Act when they be performed Before they be done they be indifferent but once breaking out into Act they become distinctly Good or Evil according to the Circumstances which determine the same Now an Action commanded is supposed as not yet done whereupon the Hebrews call the Imperative Mood the first Future and so remaineth many times indifferent Some may be of Opinion that if Obedience may be given to an Usurper in things indifferent as well as to a lawful Power that then there is as much Obedience due to an usurped Power as to a lawful But it is a Mistake for though it be granted that in things indifferent an Usurper may be obeyed as well as a lawful Governour yet herein lyeth a main Difference that some things are indifferent for a lawful Superiour which are not indifferent but unlawful to an Usurper to enjoyn Usurpation is the resisting and taking away the Power from him who hath such a former Right to govern the Usurper as cannot lawfully be taken away so that it cannot be just for an Usurper to take Advantage of his own unlawful Act or create himself a Title by continuation of his own Injustice which aggravates and never extenuates his Crime and if it never can be an Act indifferent for the Usurper himself to disobey his Lawful Sovereign much less can it be indifferent for him to command another to do that to which he hath no Right himself It is only then a matter indifferent for an Usurper to command when the Actions enjoyned are such as the lawful Superiour is commanded by the Law of God to provide for the benefit of his Subjects by the same or other like Restriction of such indifferent things and it is to be presumed if he had not been hindred would have commanded the same or the like Laws OBSERVATIONS Concerning the Original of Government Upon Mr. HOBS his Leviathan Mr. MILTON against Salmasius H. GROTIUS De Iure Belli Mr.
a Liberty to resist his Governour or do what he list but a Liberty only for particular men to Govern and to be governed by Turns 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are Aristotles words this was a Liberty not to be found in hereditary Monarchies so Tacitus mentioning the several Governments of Rome joyns the Consulship and Liberty to be brought in by Brutus because by the annual Election of Consuls particular Citizens came in their Course to govern and to be governed This may be confirmed by the Complaint of our Author which followeth It is an easie thing for men to be deceived by the specious name of Liberty and for want of Iudgment to distinguish mistake that for their private Inheritance or Birth-right which is the Right of the Publick only And when the same Error is confirmed by the Authority of men in Reputation for their Writings on this Subject it is no wonder if it produce Sedition and Change of Government In the Western parts of the World we are made to receive our Opinions concerning the Institution and Right of Common-wealths from Aristotle and Cicero and other men Greeks and Romans that living under popular Estates derived those Rights not from the Principles of Nature but transcribed them into their Books â—…ut of the Practice of their own Commonwealths which were Popular And because the Athenians were taught to keep them from Desire of changing their Government that they were Free-men and all that lived under Monarchy Slaves therefore Aristotle puts it down in his Politiques In Democracy Liberty is to be supposed for it 's commonly held that no man is free in any other Government So Cicero and other Writers grounded their civil Doctrine on the Opinions of the Romans who were taught to hate Monarchy at first by them that having deposed their Sovereign shared amongst them the Sovereignty of Rome And by reading of these Greek and Latine Authors men from their Childhood have gotten a Habit under a false shew of Liberty of favouring Tumults and of licentious controuling the Actions of their Sovereigns XI Pag. 102. Dominion paternal not attained by Generation but by Contract which is the Childs Consent either express or by other sufficient Arguments declared How a Child can express Consent or by other sufficient Arguments declare it before it comes to the Age of Discretion I understand not yet all men grant it is due before Consent can be given and I take it Mr. Hobs is of the same Mind pag. 249. where he teacheth that Abrahams Children were bound to obey what Abraham should declare to them for Gods Law which they could not be but in Vertue of the Obedience they owed to their Parents they owed not they covenanted to give Also where he saith pag. 121. the Father and Master being before the Institution of Commonweals absolute Sovereigns in their own Families how can it be said that either Children or Servants were in the State of jus naturae till the Institutions of Commonweals It is said by Mr. Hobs in his Book De Cive cap. 9. Section 7. the Mother originally hath the Government of her Children and from her the Father derives his Right because she brings forth and first nourisheth them But we know that God at the Creation gave the Sovereignty to the man over the Woman as being the nobler and principal Agent in Generation As to the Objection that it is not known who is the Father to the Son but by the discovery of the Mother and that he is his Son whom the Mother will and therefore he is the Mother's The answer is that it is not at the Will of the Mother to make whom she will the Father for if the Mother be not in possession of a Husband the Child is not reckoned to have any Father at all but if she be in the possession of a man the Child notwithstanding whatsoever the Woman discovereth to the contrary is still reputed to be his in whose possession she is No Child naturally and infallibly knows who are his true Parents yet he must obey those that in common reputation are so otherwise the Commandement of Honour thy Father and thy Mother were in vain and no Child bound to the obedience of it XII If the Government of one man and the Government of two men make two several kinds of Government why may not the Government of of two and the Government of three do the like and make a third and so every differing Number a differing kind of Common-wealth If an Assembly of all as Mr. Hobs saith that will come together be a Democratie and an Assembly of a part onely an Aristocratie then if all that will come together be but a part onely a Democratie and Aristocratie are all one and why must an Assembly of part be called an Aristocratie and not a Merocratie It seems Mr Hobs is of the mind that there is but one kind of Government and that is Monarchy for he defines a Commonwealth to be one Person and an Assembly of men or real Unity of them all in one and the same Person the multitude so united he calls a Common-wealth This his Moulding of a Multitude into one Person is the generation of his great Leviathan the King of the Children of Pride pag. 167. Thus he concludes the Person of a Commonwealth to be a Monarch XIII I cannot but wonder Master Hobs should say Page 112. the Consent of a Subject to Sovereign Power is contained in these words I Authorise and do take upon me all his Actions in which there is no restriction at all of his own former natural Liberty Surely here Master Hobs forgot himself for before he makes the Resignation to go in these words also I give up my Right of governing my self to this man This is a restriction certainly of his own former natural Liberty when he gives it away and if a man allow his Sovereign to kill him which Mr. Hobs seems to confess how can he reserve a Right to defend himself And if a man have a Power and Right to kill himself he doth not Authorise and give up his Right to his Sovereign if he do not obey him when he commands him to kill himself XIV Mr. Hobs saith pag. 112. No man is bound by the words themselves of his Submission to kill himself 〈◊〉 any other man and consequently that the Obligation a man may sometimes have upon the Command of the Sovereign to execute any dangerous or dishonourable Office dependeth not on the words of our Submission but on the Intention which is to be understood by the End thereof When therefore our refusal to Obey frustrates the End for which the Sovereignty was Ordained then there is no liberty to refuse otherwise there is If no man be bound by the words of his Subjection to kill any other man then a Sovereign may be denied the benefit of War and be rendred unable to defend his People and so the
End of Government frustrated If the Obligation upon the Commands of a Sovereign to execute a dangerous or dishonourable Office dependeth not on the words of our Submission but on the Intention which is to be understood by the End thereof No man by Mr. Hobs's Rules is bound but by the words of his Submission the Intention of the Command binds not if the words do not If the Intention should bind it is necessary the Sovereign must discover it and the People must dispute and judge it which how well it may consist with the Rights of Sovereignty Master Hobs may consider Whereas Master Hobs saith the Intention is to be understood by the End I take it he means the End by Effect for the End and the Intention are one and the same thing and if he mean the Effect the Obedience must go before and not depend on the understanding of the Effect which can never be if the Obedience do not precede it In fine he resolves refusal to obey may depend upon the judging of what frustrates the End of Sovereignty and what not of which he cannot mean any other Judge but the People XV. Mr. Hobs puts a case by way of Question A great many men together have already resisted the Sovereign Power unjustly or committed some Capital Crime for which every one of them expecteth death whether have they not the liberty then to joyn together and assist and defend one another Certainly they have for they but defend their Lives which the Guilty man may as well do as the Innocent There was indeed Injustice in the first breach of their Duty their bearing of Arms subsequent to it though it be to maintain what they have done is no new unjust Act and if it be only to defend their Persons it is not Unjust at all The only reason here alleged for the Bearing of Arms is this That there is no new unjust Act as if the beginning only of a Rebellion were an unjust Act and the continuance of it none at all No better Answer can be given to this case than what the Author himself hath delivered in the beginning of the same Paragraph in these words To resist the Sword of the Commonwealth in defence of another man Guilty or Innocent no man hath liberty because such Liberty takes away from the Sovereign the Means of protecting us and is therefore destructive of the very Essence of Government Thus he first answers the question and then afterwards makes it and gives it a contrary Answer other Passages I meet with to the like purpose He saith Page 66. A man cannot lay down the Right of Resisting them that Assault him by Force to take away his Life The same may be said of Wounds Chains and Imprisonment Page 69. A Covenant to defend my self from Force by Force is void Pag. 68. Right of Defending Life and Means of living can never be abandoned These last Doctrines are destructive to all Government whatsoever and even to the Leviathan it self hereby any Rogue or Villain may murder his Sovereign if the Sovereign but offer by force to whip or lay him in the Stocks since Whipping may be said to be wounding and Putting in the Stocks an Imprisonment so likewise every mans Goods being a Means of Living if a man cannot abandon them no Contract among men be it never so just can be observed thus we are at least in as miserable condition of War as Mr. Hobs at first by Nature found us XVI The Kingdom of God signifies saith Master Hobs page 216. a Kingdom constituted by the Votes of the People of Israel in a peculiar manner wherein they choose God for their King by Covenant made with him upon God's promising them Canaan If we look upon Master Hob's Text for this it will be found that the People did not Constitute by Votes and choose God for their King But by the Appointment first of God himself the Covenant was to be a God to them they did not contract with God that if he would give them Canaan they would be his Subjects and he should be their King It was not in their power to choose whether God should be their God yea or nay for it is confessed He reigned naturally over all by his Might If God Reigned naturally he had a Kingdom and Sovereign Power over his Subjects not acquired by their own Consent This Kingdom said to be constituted by the Votes of the People of Israel is but the Vote of Abraham only his single Voyce carried it he was the Representative of the People For at this Vote it is confessed that the Name of King is not given to God nor of Kingdom to Abraham yet the thing if we will believe Master Hobs is all one If a Contract be the mutual transferring of Right I would know what Right a People can have to transferr to God by Contract Had the People of Israel at Mount Sinai a Right not to obey God's Voice If they had not such a Right what had they to transferr The Covenant mentioned at Mount Sinai was but a Conditional Contract and God but a Conditional King and though the People promised to obey Gods word yet it was more than they were able to perform for they often disobeyed Gods Voice which being a breach of the Condition the Covenant was void and God not their King by Contract It is complained by God They have rejected me that I should reign over them but it is not said according to their Contract for I do not find that the Desiring of a King was a breach of their Contract of Covenant or disobedience to the Voice of God there is no such Law extant The People did not totally reject the Lord but in part onely out of timorousness when they saw Nahash King of the Children of Ammon come against them they distrusted that God would not suddenly provide for their Deliverance as if they had had alwayes a King in readiness to go up presently to fight for them This Despair in them who had found so many miraculous deliverances under Gods Government was that which offended the Lord so highly they did not desire an Alteration of Government and to cast off Gods Laws but hoped for a certainer and speedier deliverance from danger in time of War They did not petition that they might choose their King themselves that had been a greater sin and yet if they had it had not been a total rejection of Gods Reigning over them as long as they desired not to depart from the Worship of God their King and from the Obedience of his Laws I see not that the Kingdom of God was cast off by the Election of Saul since Saul was chosen by God himself and governed according to Gods Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had
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. Seldens acknowledgment hath obtained Reputation every where seems most reasonable in that it 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 Iure 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 nune 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 choose rather to dye than in any case by Arms to repell 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 Commonwealth 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 Commonwealth 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 Superiors 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 laudible Service without Disturbance of the Commonwealth 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 Superiors If saith he any man shall say that this rigid Doctrine of dying rather then 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 wholsome 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 cetainly appear that the People long ago willed otherwise lib. 2. c. 2. For fuller Explication of his Judgment about resisting Superiours 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 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 choose what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. c. 3. Also that the People choosing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiours is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No Doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us he rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the Cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition that in some Places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion that People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right and you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this that the People may grant away their Power without retaining any part But what is this to what the People have done for though the People may give away their Power without Reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his Favour the Point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged that in all Presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any Benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings Part who are in Possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the People the Labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an Instant with any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius that although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implyed that it was upon condition to be well-governed and that the Non-performance of that implyed Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said that the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected that he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be that by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say that it is by any necessity of the Law of Nature or by any positive Law of God he teacheth that non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth onely approve it ut humanum and humano modo He tells us further that Populus potest eligere qualem vult gubernationis forâ—…am ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they â—…ay make temporary Kings as Dictators and Protectors jus quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his â—…i potestatem revocabiliter dederunt ac proinde non idem est
of power to which the other parts are subsequent and subservient if Gubernative be subservient to Legislative how can Gubernative power be supream Now let us examime the Authors Limited Monarch by these his own rules he tells us that in a moderated limited stinted conditionate legal or allayed Monarchy for all these terms he hath for it the supream power must be restrained by some Law according to which this power was given and by direction of which this power must act when in a line before he said that the Monarchs power must not be limited by any power above his yet here he will have his supream power restrained not limited and yet restrained is not a restraint a limitation and if restrained how is it supream and if restrained by some Law is not the power of that Law and of them that made that Law above his supream power and if by the direction of such Law onely he must govern where is the Legislative power which is the chief of supream power When the Law must rule and govern the Monarch and not the Monarch the Law he hath at the most but a Gubernative or Executive power If his authority transcends its bounds if it command beyond the law and the Subject is not bound legally to subjection in such cases and if the utmost extent of the law of the land be the measure of the Limited Monarchs power and Subjects duty where shall we find the supream power that Culmen or apex potestatis that prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which our Author saith must be in every Monarch The word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies principality and power doth also signifie principium beginning which doth teach us that by the word Prince or principality the principium or beginning of Government is meant this if it be given to the Law it robs the Monarch and makes the Law the primum mobile and so that which is but the instrument or servant to the Monarch becomes the master Thus much of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The other word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solus one alone the Monarch must not only have the supream power unlimited but he must have it alone without any companions Our Author teacheth us He is no Monarch if the Supream power be not in one And again he saith if you put the apex potestatis or supream power in the whole body or a part of it you destroy the being of Monarchy Now let us see if his mixed Monarchy be framed according to these his own principles First he saith in a mixed Monarchy the soveraign power must be originally in all three Estates And again his words are The three Estates are all sharers in the supream power the primity of share in the supream power is in One. Here we find that he that told us the supream power must be in one will now allow his mixed Monarch but one share only of the supream power and gives other shares to the Estates thus he destroys the being of Monarchy by putting the supream power or culmen potestatis or a part of it in the whole body or a part thereof and yet formerly he confesseth that the power of Magistracy cannot well be divided for it is one simple thing or indivisable beam of divine perfection but he can make this indivisable beam to be divisable into three shares I have done with the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solus alone I have dwelt the longer upon this definition of Monarchy because the apprehending of it out of the Authors own grounds quite overthrows both his Monarch Limited by Law and his Monarch Mixed with the States For to Govern is to give a law to others and not to have a Law given to Govern and limit him that Governs And to govern alone is not to have sharers or companions mixed with the Governor Thus the two words of which Monarchy is compounded contradict the two sorts of Monarchy which he pleads for and by consequence his whole Treatise for these two sorts of limited and mixed Monarchy take up in a manner his whole Book I will now touch some few particular passages in the Treatise Our Author first confesseth it is Gods express ordinance there should be Government and he proves it by Gen. 3. 16. where God ordained Adam to rule over his Wife and her desires were to be subject to his and as hers so all theirs that should come of her Here we have the original grant of Government and the fountain of all power placed in the Father of all mankind accordingly we finde the law for obedience to government given in the terms of honour thy Father not only the constitution of power in general but the limitation of it to one kind that is to Monarchy or the government of one alone and the determination of it to the individual person and line of Adam are all three ordinances of God Neither Eve nor her Children could either limit Adams power or joyn others with him in the government and what was given unto Adam was given in his person to his posterity This paternal power continued monarchical to the Floud and after the Floud to the confusion of Babel when Kingdoms were first erected planted or scattered over the face of the world we finde Gen. 10. 11. it was done by Colonies of whole families over which the prime Fathers had supream power and were Kings who were all the sons or grand-children of Noah from whom they derived a fatherly and regal power over their families Now if this supream power was setled and founded by God himself in the fatherhood how is it possible for the people to have any right or title to alter and dispose of it otherwise what commission can they shew that gives them power either of limitation or mixture It was Gods ordinance that Supremacy should be unlimited in Adam and as large as all the acts of his will and as in him so in all others that have supream power as appears by the judgement and speech of the people to Ioshuah when he was supream Governour these are their words to him All that thou commandest us we will do whosoever he be that doth rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death we may not say that these were evil Councellours or flattering Courtiers of Ioshuah or that he himself was a Tyrant for having such arbitrary power Our Author and all those who affirm that power is conveyed to persons by publick consent are forced to confess that it is the fatherly power that first inables a people to make such conveyance so that admitting as they hold that our Ancestors did at first convey power yet the reason why we now living do submit to such power is for that our Fore-fathers every one for himself his family and posterity had a power of resigning up
themselves and us to a supream power As the Scripture teacheth us that supream power was originally in the fatherhood without any limitation so likewise Reason doth evince it that if God ordained that Supremacy should be that then Supremacy must of necessity be unlimited for the power that limits must be above that power which is limited if it be limited it cannot be supream so that if our Author will grant supream power to be the ordinance of God the supream power will prove it self to be unlimited by the same ordinance because a supream limited power is a contradiction The Monarchical power of Adam the Father of all flesh being by a general binding ordinance setled by God in him and his posterity by right of fatherhood the form of Monarchy must be preferr'd above other forms except the like ordinance for other forms can be shewed neither may men according to their relations to the form they live under to their affections and judgments in divers respects prefer or compare any other form with Monarchy The point that most perplexeth our Author and many others is that if Monarchy be allowed to be the ordinance of God an absurdity would follow that we should uncharitably condemn all the Communities which have not that form for violation of Gods ordinance and pronounce those other powers unlawful If those who live under a Monarchy can justifie the form they live under to be Gods ordinance they are not bound to forbear their own justification because others cannot do the like for the form they live under let others look to the defence of their own Government if it cannot be provd or shewd that any other form of government had ever any lawful beginning but was brought in or erected by Rebellion must therefore the lawful and just obedience to Monarchy be denied to be the ordinance of God To proceed with our Author in the 3 page he saith the Higher Power is Gods ordinance That it resideth in One or more in such or such a way is from humane designment God by no word binds any people to this or that form till they by their own act bind themselves Because the power and consent of the people in government is the burden of the whole Book and our author expects it should be admitted as a magisterial postulation without any other proof than a naked supposition and since others also maintain that originally Power was or now is in the People that the first Kings were chosen by the People they may not be offended if they be asked in what sence they understand the word People because this as many other words hath different acceptions being sometimes taken in a larger otherwhiles in a stricter sence Literally and in the largest sence the word People signifies the whole multitude of mankind but figuâ—…tively and synecdochically it notes many times the â—…ajor part of a multitude or sometimes the better or the richer or the wiser or some other part and oftentimes a very small part of the people if there be no other apparent opposite party hath the name of the people by presumption If they understand that the entire multitude or whole people have originally by nature power to chuse a King they must remember that by their own principles and rules by nature all mankind in the world makes but one People who they suppose to be born alike to an equal freedome from subjection and where such freedome is there â—…ll things must of necessity be common and therefore without a joynt consent of the whole people â—…f the world no one thing can be made proper 〈◊〉 any one man but it will be an injury and an â—…urpation upon the common right of all others â—…rom whence it follows that natural freedome beâ—…ing once granted there cannot be any one man â—…osen a King without the universal consent of all the people of the world at one instant nemine contradicente Nay if it be true that nature hath made all men free though all mankind should concur in one vote yet it cannot seem reasonable that they should have power to alter the law of nature for if no man have power to take away his own life without the guilt of being a murtherer of himself how can any people confer such a power as they have not themselves upon any one man without being accessories to their own deaths and every particular man become guilty of being felo de se If this general signification of the word people be disavowed and men will suppose that the people of particular Regions or Countries have power and freedome to chuse unto themselves Kings then let them but observe the consequence Since nature hath not distinguished the habitable world into Kingdomes nor determined what part of a people shall belong to one Kingdome and what to another it follows that the original freedome of mankind being supposed every man is at liberty to be of what Kingdome he please 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 a liberty to chuse himself to be his own King if he please and he were a madman that being by nature free would chuse any man but himself to be his own Governour Thus to avoid the having but of one King of the whole world we shall run into a liberty of having as many Kings as there be men in the world which upon the matter is to have no King at all but to leave all men to their natural liberty which is the mischief the Pleaders for natural liberty do pretend they would most avoid But if neither the whole people of the world nor the whole people of any part of the world be meant but only the major part or some other part of a part of the world yet still the objection will be the stronger For besides that nature hath made no partition of the world or of the people into distict Kingdomes and that without an universal consent at one and the same instant no partition can be made yet if it were lawful for particular parts of the world by consent to chuse their Kings nevertheless their elections would bind none to subjection but only such as consented for the major part never binds but where men at first either agree to be so bound or where a higher power so commands Now there being no higher power than nature but God himself where neither nature nor God appoints the major part to bind their consent is not binding to any but only to themselves who consent Yet for the present to gratifie them so far as to admit that either by nature or by a general consent of all mankind the world at first was divided into particular Kingdomes and the major part of the people of each Kingdome assembled allowed to chuse their King yet it cannot truly be said that ever the whole people or the
major part or indeed any considerable part of the whole people of any nation ever assembled to any such purpose For except by some secret miraculous instinct they should all meet at one time and place what one man or company of men less than the whole people hath power to appoint either time or place of elections where all be alike free by nature and without a lawful summons it is most unjust to bind those that be absent The whole people cannot summon it self one man is sick another is lame a third is aged and a fourth is under age of discretion all these at some time or other or at some place or other might be able to meet if they might chuse their own time and place as men naturally free should In Assemblies that are by humane politique constitution the superior power that ordains such assemblies can regulate and confine them both for time place persons and other circumstances but where there is an equality by nature there can be no superior power there every Infant at the hour it is born in hath a like interest with the greatest and wisest man in the world Mankind is like the sea ever ebbing or flowing every minute one is born another dies those that are the people this minute are not the people the next minute in every instant and point of time there is a variation no one time can be indifferent for all mankind to assemble it cannot but be mischievous always at the least to all Infants and others under age of discretion not to speak of women especially Virgins who by birth have as much natural freedome as any other and therefore ought not to lose their liberty without their own consent But in part of salve this it will be said that Infants and Children may be concluded by the votes of their Parents This remedy may cure some part of the mischief but it destroys the whole cause and at last stumbles upon the true original of government For if it be allowed that the acts of Parents bind the Children then farewel the doctrine of the natural freedome of mankind where subjection of Children to Parents is natural there can be no natural freedome If any reply that not all Children shall be bound by their Parents consent but onely those that are under age It must be considered that in nature there is no nonage if a man be not born free she doth not assign him any other time when he shall attain his freedome or if she did then Children attaining that age should be discharged of their Parents contract So that in conclusion if it be imagined that the people were ever but once free from subjection by nature it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever without apparent wrong to a multitude of people It is further observable that ordinarily Children and Servants are far a greater number than Parents and Masters and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject unto is most unnatural and in effect to give the Children the government over their Parents To all this it may be opposed What need dispute how a people can chuse a King since there be multitude of examples that Kings have been and are now adays chosen by their people The answer is 1. The question is not of the fact but of the right whether it have been done by a natural or by an usurped right 2. Many Kings are and have bin chosen by some small part of a people but by the the whole or major part of a Kingdom not any at all Most have been elected by the Nobility Great men and Princes of the blood as in Poland Denmarke and in Sweden not by any collective or representative body of any Nation sometimes a sactious or seditious City or a mutinous Army hath set up a King but none of all those could ever prove they had right or just title either by nature or any otherwise for such elections We may resolve upon these two propositions 1. That the people have no power or right of themselves to chuse Kings 2. If they had any such right it is not possible for them any way lawfully to exercise it You will say There must necessarily be a right in somebody to elect in case a King die without an Heir I answer No King can die without an Heir as long as there is any one man living in the world It may be the Heir may be unknown to the people but that is no fault in nature but the negligence or ignorance of those whom it concerns But if a King could die without an Heir yet the Kingly power in that case shall not escheat to the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1. 2. where Solomon speaks to All Israel that is to the Captains the Iudges and to every Governour the CHIEF OF THE FATHERS and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel 1 King 8. 1. and the 2 Chr. 5. 2. If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their people or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the others subject unto him every man by nature is a King or a Subject the obedience which all Subjects yeild to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon Gods providence who only hath right to
give and take away Kingdomes and thereby to adopt Subjects into the obedience of another fatherly power according to that of Arist. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Monarchy or Kingdom will be a fatherly government Ethic. l. 8. c. 12. However the natural freedome of the people be cried up as the sole means to determine the kind Government and the Governours yet in the close all the favourers of this opinion are constrained to grant that the obedience which is due to the fatherly power is the true and only cause of the subjection which we that are now living give to Kings since none of us gave consent to government but only our Fore-fathers act and consent hath concluded us Whereas many confess that Government only in the abstract is the ordinance of God they are not able to prove any such ordinance in the Scripture but only in the fatherly power and therefore we find the Commandment that enjoyns obedience to superiours given in the terms of Honour thy Father so that not onely the power or right of government but the form of the power of governing and the person having that power are all the ordinance of God the first Father had not only simply power but power Monarchical as he was a Father immediately from God For by the appointment of God as soon as Adam was created he was Monarch of the World though he had no subjects for though there could not be actual government until there were Subjects yet by the right of nature it was due to Adam to be Governour of his posterity though not in act yet at least in habit Adam was a King from his Creation And in the state of innocency he had been Governour of his Children for the integrity or excellency of the subjects doth not take away the order or eminency of the Governour Eve was subject to Adam before he sinned the Angels who are of a pure nature are subject to God which confutes their saying who in disgrace of civil Government or power say it was brought in by sin Government as to coactive power was after sin because coaction supposeth some disorder which was not in the state of innocency But as for directive power the condition of humane nature requires it since civil society cannot be imagined without power of Government for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done yet things indifferent that depended meerly on their free will might be directed by the power of Adams command If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was we may find the division of the earth into distinct Kingdomes and Countries by several families whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right and for the preservation of this power and right in the Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom as appears by the words of the Text Gen. 10. These are the Families of the Sons of Noah after their generations in their Nations and by these were the Nations divided in the earth after the floud Every one after HIS TONGUE AFTER THEIR FAMILIES in their Nations The Kings of England have been gratiously pleased to admit and accept the Commons in Parliament as the representees of the Kingdom yet really and truly they are not the representative body of the whole Kingdom The commons in Parliament are not the representative body of the whole Kingdom they do not represent the King who is the head and principal member of the Kingdom nor do they represent the Lords who are the nobler and higher part of the body of the Realm and are personally present in Parliament and therefore need no representation The Commons onely represent a part of the lower 〈◊〉 inferior part of the body of the People which are the Free-holders worth 40 s. by the year and the Commons or Free-men of Cities and Burroughs or the major part of them All which are not one quarter nay not a tenth part of the Commons of the Kingdom for in every Parish for one Free-holder there may be found ten that are no Free-holders and anciently before Rents were improved there were nothing neer so many Free-holders of 40 s. by the year as now are to be found The scope and Conclusion of this discourse and Argument is That the people taken in what notion or sense soever either diffusively collectively or representatively have not nor cannot exercise any right or power of their own by nature either in chusing or in regulating Kings But whatsoever power any people doth lawfully exercise it must receive it from a supream power on earth and practice it with such limitations as that superior power shall appoint To return to our Author He divides Monarchy into Absolute Limited Absolute Monarchy saith he is when the Soveraignty is so fully in one that it hath no limits or bounds under God but his own will This definition of his I embrace And as before I charged our Author for not giving us a definition of Monarchy in general so I now note him for not affording us any definition of any other particular â—…nd of Monarchy but onely of absolute it may peradventure make some doubt that there is no other sort but only that which he calls absolute Concerning absolute Monarchy he grants that such were the antient Eastern Monarchies and that of the Turk and Persian at this day Herein he saith very true And we must remember him though he do not mention them that the Monarchs of Iudah and Israel must be comprehended under the number of those he calls the Eastern Monarchies and truly if he had said that all the antient Monarchies of the world had been absolute I should not have quarreld at him â—…or do I know who could have disproved him Next it follows that Absolute Monarchy is when 〈◊〉 people are absolutely resigned up or resign up themselves to be governed by the will of One man Where men put themselves into this utmost degree of subjection by oath and contract or are born and brought unto it by Gods providence In both these places he acknowledgeth there may be other means of obtaining a Monarchy besides the contract of a Nation or peoples resigning up themselves to be governed which is contrary to what he after saies that the sole mean or root of all Soveraignty is the consent and fundamental contract of a Nation of men Moreover the Author determines that Absolute Monarchy is a lawful government and that men may be born and brought unto it by Gods providence it binds them and they must abide it because an oath to a lawful thing is obligatory This Position of his I approve but his Reason doth not satisfie for
that being made he concludes The fundamental Laws must judge and pronounce sentence in every mans conscience Whereas he saith The Fundamental Laws must judge I would very gladly learn of him or of any other for him what a Fundamental Law is or else have but any one Law named me that any man can say is a Fundamental Law of the Monarchy I confess he tells us that the Common Laws are the foundation and the Statute Laws are superstructive yet I think he dares not say that there is any one branch or part of the Common Law but that it may be taken away by an act of Parliament for many points of the Common Law de facto have and de jure any point may be taken away How can that be called Fundamental which hath and may be removed and yet the Statute-Laws stand firm and stable It is contrary to the nature of Fundamental for the building to stand when the foundation is taken away Besides the Common Law is generally acknowledged to be nothing else but common usage or custome which by length of time onely obtains authority So that it follows in time after Government but cannot go before it and be the rule to Government by any original or radical constitution Also the Common Law being unwritten doubtful and difficult cannot but be an uncertain rule to govern by which is against the nature of a rule which is and ought to be certain Lastly by making the common Law onely to be the foundation Magna Charta is excluded from being a Fundamental Law and also all other Statutes from being limitations to Monarchy since the Fundamental Laws onely are to be judge Truly the conscience of all Man-kind is a pretty large Tribunal for the Fundamental Laws to pronounce sentence in It is very much that Laws which in their own nature are dumb and always need a Judge to pronounce sentence should now be able to speak and pronounce sentence themselves such a sentence surely must be upon the hearing of one party onely for it is impossible for a Monarch to make his defence and answer and produce his witnesses in every mans conscience in each mans cause who will but question the legality of the Monarchs Government Certainly the sentence cannot but be unjust where but one mans tale is heard For all this the conclusion is Every man must oppose or not oppose the Monarch according to his own conscience Thus at the last every man is brought by this Doctrine of our Authors to be his own judge And I also appeal to the consciences of all man-kind whether the end of this be not utter confusion and Anarchy Yet after all this the Author saith This power of every mans judging the illegal acts of the Monarch argues not a superiority of those who judge over him who is judged and he gives a profound reason for it his words are It is not authoritative and civil but moral residing in reasonable creatures and lawful for them to execute What our Author means by these words not authoritative and civil but moral perhaps I understand not though I think I do yet it serves my turn that he saith that resistance ought to be made and every man must oppose or not oppose according as in conscience he can acquit or condemn the acts of his Governour for if it enable a man to resist and oppose his Governour without question 't is authoritative and civil Whereas he adds that moral judgment is residing in reasonable creatures and lawful for them to execute he seems to imply that authoritative and civil judgement doth not reside in reasonable creatures nor can be lawfully executed Such a conclusion fits well with Anarchy for he that takes away all Government and leaves every man to his own conscience and so makes him an independent in State may well teach that authority resides not in reasonable creatures nor can be lawfully executed I pass from his absolute and limited Monarchy to his division or partition for he allows no division of Monarchy into simple and mixed viz. of a Monarch the Nobility and Community Where first observe a doubt of our Authors whether a firm union can be in a mixture of equality he rather thinks there must be a priority of order in one of the three or else there can be no unity He must know that priority of order doth not hinder but that there may be an equality of mixture if the shares be equal for he that hath the first share may have no more than the others so that if he will have an inequality of mixture a primity of share will not serve the turn the first share must be greater or better than the others or else they will be equal and then he cannot call it a mixed Monarchy where onely a primity of share in the Supream power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us the Houses of Parliament sure have two parts of the greatest legislative authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty title Therefore in the third place he resolves us that to salve all A power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First a Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supream power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law onely thus he is brought from the legislative to the gubernative or executive power onely nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supream power into legislative and gubernative doth now divide it into legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of power but are we sure
the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet to be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittena-gemot or when this real body of the people did throng together at it so it is not yet perhaps without some defects which by art and policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Iurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Iurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the Original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Iurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the world to last he grants it continued above three thousand years which is an unreasonable time for the world to continue under-age for the first opposers he doth finde of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so antient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the people were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name onely as Generalissimo of an Army and the best Politicians reckon the Spartan Common-wealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick Assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Iurisdiction to be incertain and the priviledges undetermined of that Court that should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Iurisdictions and Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Iurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not onely be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the people may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Iurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Iustice. But he doth not name so much as one Country or Kingdome that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdome that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdomes or nowhere is such a moderated Government as our Observator means to be found