and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
Ancestors had no absolute but a limited Power â—e could be restored to no more than the Constituâ—ion of the Government will allow him Nor did Edward W. or Henry VII though they first obtain'd the Crown by War pretend to more Power than their Predecessors I shall not trouble my self about the reasons the Author gives for it But I think he is out in making it seem impossible from what Grotius hath said for a Prince to gain a full right of Propriety by a just War for Grotius says the contrary and allows that in some cases a Prince may gain an absolute dominion by Conquest But the Author makes this Dilemma to bring Grotius to an absurdity P. 64. That if a King come iâ— by Conquest he must either conquer those people that have a Governour or those that have none If they have no Governour they are a free People and so the war will be unjust to Conquer those that are free But if the people Conquered have a Governour that Governour hath 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 so to Conquer him that is in possession for it is a just rule that where cases are alike 〈◊〉 that is in possession is in the better condition and for this he quotes Grotius himself which he need not have done for he himself allows it for truth only he will have all Usurpers whatever to have a right whether by Conquest or otherwise which Grotius will not As for the rest of this argument See Directions 〈◊〉 Obedience P. 68. 69. it iâ— drawn from Principles never laid down nor maintained by Grotius For first iâ— a People that have no absolute Governour as the Brasilians and Caraibees have nonâ— as I have already sayd live peaceable and offenâ— no body I think it unlawful to make war upon sucâ— a People as the Spaniards did without any cause bâ— to make them slaves But if such a People will joyâ— together as they often do under a Carak or Captain created by themselves and make an offensive Waâ— upon their neighbours without just cause I think they may justly be Conquered and become either slaves or subjects to the Conquerer as well as one single man in the same case See Grotitius de I.B. Li. III. Cap. 7. since both Grotius and all writers allow the taking of slaves in a just war but none ever made it alike reasonable to make slaves of those that have done them no injury As for the other part of the Dilemma where the People Conquered have an absolute King or Government either by Title or Possession Grotius likewise allows an absolute Conquest of such a People provided the war were just Ib. Cap. 8. For though the Governour or Governours made the war yet since the People have transferred all their Power to them and have agreed to authorize all their actions the subduing of the Forces raised by this Governor is a Conquest of the whole People Ib. Cap. 8. as Grotius allows the Conquerer either to reduce them to the condition of Slaves or Subjects which he pleases and certainly where the Conquerer had a right to subdue the Conquered have likewise an obligation to obey As for Possession it is true that it is unjust for another Man to Conquer him that hath but a Possession of a Kingdom if that be the only ground of the quarrel But neither Grotius nor any reasonable man else will allow the Conquerour of such a Possessor that wants a Title to have gained an absolute right over the People since the Usurper himself commanded them only by force and that they never confirmed his Title by any after consent 'T is true Grotius defines publick Subjection to be that whereby a People yeilds it self up to the Government of any one or more men or also to another People But he limits this Subjection to that which proceeds from consent as he divides Subjection from consent into publick Lib. 11. Cap. 5. §. 26. and private but does not exclude but allows Subjection without consent as often as he that deserved to loose his liberty is reduced by force into the Power of him who hath a right to exact that Punishment and who have this right viz. the Conquerors in a just War he after shews us Lib. III. Cap. 7. 8. So that it is evident that the Author never read Grotius carefully or else misrepresents his sence on purpose though I am so charitable as rather to believe the former than the latter Obs P. 66. He likewise finds fault with Grotius for supposing That some People for avoiding a greater evil do so yeild themselves into anothers power as to except nothing for it would says he be considered how without war any People can be brought into such danger of life as that because they can find no other way of defending 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 since the Author could not understand how this can be without an actual War I will shew those of his opinion several instances wherein it may and hath happend that the People may renounce all rights of Property or of Government without any war made upon them The first instance shall be that of the Egyptians Gen. 47. who when they had parted with their Cattel and Flocks to Joseph for Bread were after forced to yeild up their lands and bodies to Pharaoh and to become instead of Subjects absolute Servants or Slaves as appears by verse 19. Buy us and our land for Bread and we and our land will be servants unto Pharaoh who disposed of their persons as he thought fit for verse 21. It is sayd as for the People he removed them to Cities from one end of the borders of Egypt even to the other end thereof that is he made Colonies of them and changed the places of their abode or perhaps made them servants to work in publick works or manufactures so that they that dwelt in the North of Egypt he removed into the South that they might be out of their own Country and have less interest or temptation to challenge their own lands again when the Famin should be over From whence it is clear that a People that were free Subjects may without a War give up themselves and all that they have to the Dominion of another But since this instance may seem of too long standing I will produce one that may happen nearer home suppose the States of Holland being threatned by the French King to make War upon them if they do not give up themselves to be his absolute Subjects or suppose being Master at Sea as God knows after the
history and Laws of his Country but very well knows and that this opinion of Englands being a limited Monarchy is no new one but owned to be so by our Kings themselves We may appeal to the last words of Magna Charta it self Concessimus etiam eisdem pro nobis et haeredibus nostris quod nec nos nec haeredes nostri aliquid perquiremus per quod libertates in hac Charta contentae infringantur vel infirmentur Et si ab aliquo contra hoc aliquid perquisitum fuerit nihil valeat et pro nullo habeatur And this his late Majesty of blessed memory who best knew the extent of his own power says in his Declaration from New-market Martij 9. 1641. That the Law to be the measure of his power and if the Laws are the measure of it then his power is limited for what is a Measure but the bounds or limits of the thing measured So likewise in his Answer to both Houses concerning the Militia speaking of the men named by him If more power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by Law first vested in him with power to transfer it to those persons In which passage his Majesty plainly grants that the power of the Crown is limited by Law and that the King hath no other Prerogatives then are vested in him thereby Nor was this any new Doctrine or indicted by persons disaffected to Monarchy and which had but newly come off from the Parliament side by the apparent Justice of his late Majesties Cause as Mr. Hobs in his little Dialogue of the civil wars of England doth insinuate but was the opinion of the ancient Lawyers many hundred years ago Bracton who lived in the time of H. 2. writes thus Li. I. Cap. 8. Ipse autem Rex non debet esse sub homine sed sub Deo et Lege quia Lex facit Regem Attribuit igitur Rex Legi quod Lex attribuit Ei viz. dominationem et potentiam Non est enim Rex ubi dominatur voluntas et non Lex And Li. III Cap. 9. Rex est ubi bene Regit Tyrannus dum populum sibi creditum violenta opprimit dominatione quod hoc sanxit lex humana quod leges ligent suum Laterem if this be law we have a Tyrant as well described as by any difinition in Aristotle Also that the King alone cannot make a Law Li. I. Cap. 1. So likewise the Lord Chancellour Fortescue in his excellent treatise de laudibus Legum Angliae dedicated to Prince Edward only Son to Henry the VI. and certainly writing to him whom it most concerned to know those Prerogatives he might one day enjoy he would not make them less than really they were Cap. 9. He instructs the Prince thus non potest Rex Angliae ad libitum suum mutare Leges Regni sui Principatu namque nedum regali sed et politico ipse suo Populo dominatur Populus enim iis Legibus gubernatur quas ipse fert cum Legis vigorem habeat quicquid de consilio et de consensu Magnatum et Reipublicae communi sponsione authoritate Regis sive Principis praecedente juste fuerit difinitum et approbatum And the Parliament Rol. 18. E. 1. num 41. quoted in Lord Cook 's Inst 4. pt acknowledges the same Homines de Cheshire qui onerati sunt de servientibns Pacis sustentandis petunt exonerari de oneribus Statuti Winton ' c. The Kings Answer was Rex non habet consilium mutandi consuetudines nec statuta revocandi So likewise Cap. 18. speaking of the Laws of England non enim emanant illa à Principis solùm voluntate ut Leges in Regnis quae tantum regaliter gubernantur ubi quandoque statuta ita constituentis procurant commoditatem singularem quod in ejus subditorâ—m ipsum redundant dispendium et jaciuram sed concito reformari possunt dum non sine Communitatis et Procerum regni illius assensu primitus emanarunt so Cap. 13. Et ut non potest caput corperis Physici nervos suos commutare neque membris suis proprias vires et propria sanguinis alimenta denegare nec Rex qui caput est corporis Politici mutare potest Leges corporis illius nec ejusdem Populi substantias proprias substrabere reclamantibus iis an invitis And concludes thus habes jam Princeps institutionis politici Regni formam quam Rex ejus in Leges ipsius aut subditos valeat exercere ad rutelam namque legis subditorum ac eorum corporum et bonorum Rex hujusmodi erectus est et ad hanc potestatem a Populo effluxam ipse habet quo ei non liceat potestate alia suo Populo dominari I had not been so large on a Subject which is so known and evident and which no sober man will deny were it not for two reasons the first is to satisfy Divines and men of other professions who have not leasure to read old Law Books and perhaps may lye under some doubts what the true form of Government of this Kingdom hath ever been and in the next place to confute the Author's Cavil and other mens of his way to the contrary Authority being the best Judge in this Case as Diogenes confuted Zenos's Arguments against motion not by disputeing but walking So now whether the Treatise this Author writes against be but a Platonick Monarchy or a better piece of Poetry than Policy I will not dispute but this much I think I may safely affirm that the Government he describes is not a Creature to be found God be thanked on English ground and for those that so much admire it let them go find it by the banks of Nilus or Ganges where the Sun that late Emblem of universal Monarchy is so indulgent to the Creatures he produces that those which he cannot make grow here beyond an Eut or Adder are there made Crocodiles and Serpents that devour a man at a bit So that if you should stile them the representatives of the Monarchs of those Climates Travellers will say you do not wrong them I shall now proceed to answer the most material Objection of this Authors and not imitate him who in this Treatise passes by all the Arguments which Mr. H. brings to prove that this is no absolute despotick but at least a limited Monarchy as silently as Commentators do hard places that puzle them Let us therefore look back to his Patriarcha where he gives us a distinction of the School-men ' whereby they subject Kings to the directive but not to the coactive power of Laws and is a confession that Kings are not bound by the positive Laws of any Nation Since the compulsory power of Laws of that which properly makes Laws to be Laws by binding men by rewards and punishments to obedience whereas the direction of the Law
to them But Edward 1. that great Prince was of another mind who in his Letter to the Pope concerning the Tribure granted by King John Mat. Paris P. 435. Et super hoc nequiverimus ejusdem deliberationem habere cum Prelatis et proceribus ante dictis sine quorum Communicato Concilio Sanctitati vestrae non possumus respondere et jure jurando Coronatione nostra praestito sumus astricti quod Jura Regni servabimus illibita nec aliquid quod Diadema tangat regni ejusdem absque ipsorum re quisito comsilio facimus So likewise that Victorious Prince Edward III. in the preamble to the new Statute of Provisors Anno Regni 25. Which Statute viz. repealing a former Law viz. 35. Edward I. which said this Statute holdeth always his force and was never defeated or annulled in any point and by so much as he is viz. the King bound by his Oath to do the same to be kept as the Law of the Realm But I come now to the last main Objection which the Author makes against limited Monarchy and by which he hopes to prove it an absolute Monarchy I will set down the difference between our Author and Mr. H. upon whom he animadverts in their own words ' First Mr. H. holds that the King himself in a limited Monarchy is not to be resisted or punished any more then in absolute Monarchy and so can doe no wrong in his own person ' Yet if he this limited Monarch transcends his bounds if he commands against Law the subject is not Legally bound to obedience in such cases whereupon our Author asks who shall be Judge whether the Monarch transcend his bounds Mr. H. conceives that in a limited legal Monarchy there can be no stated external Judge of the Monarch's actions if there grow a fundamental variance betwixt him and the Community And in another place confesses that there can be no Judge Legal and constituted within that form of Government whereupon the Author thinks he hath got a great advantage over our Gentleman and therefore is resolved to put the question home and demands of him if there be a variance betwixt the Monarch and any of the meanest persons of the community who shall be judg for instance the King commands or gives Judgment against me I reply his commands are illegal and his Judgments not atcording to Law who must judge if the Monarch himself judge then you destroy the frame of the Government and make it absolute For saith Mr H. to confine a Monarch to a Law and then to make him Judge of his own deviations from that Law is to obsolve him from all Law and on the other side if any or all the People may Judg then you put the Soveraignty in the whole Body or part of it and destroy the Being of Monarchy and thus this Author says Sir R. A. hath caught himself in a plain Dilemma if the King be Judg then he is no limited Monarch if the people Judg then he is no Monarch at all so farewell limited Monarchy nay farewell all Government if there be no Judg. But as sure as this Author thinks he hath his Adversary at an Advantage yet I do not see that he hath given him so much as a Foyl much less a fair Fall for all this terrible Dilemma For first it is for this that if the people be Judg when the Princes commands are unlawful it will therefore destroy the being of Monarchy suppose a King should command all his Subjects to go to Mass which they being Protestants judg Idolatrous If they obey him they must commit Idolatry if they disobey him he is then no Monarch But perhaps it will be replied that it is true the Subjects may judg when the Command is unlawful but if they cannot yield active obedience yet they must yield a passive one and submit patiently to the Penalties he pleases to lay upon them for not going This Answer will not serve turn for the Authors Objection is general if the people judg he does not say resist he is no Monarch at all and refusing to go to Mass is a judging the Princes Command unlawful But Mr. Hobs from whom this Argument is borrowed drives it more home if the Authors friends will admit the Consequence affirms truely upon his own principles that if the Subject do judg in any case whatever of what is lawful or unlawful good or evil it quite destroys the Monarchy For the Monarch is sole Judg of all Actions whether they be Lawsul or not Now when the Monarch hath declared his Will that all his Subjects should go to Mass surely not to go is to disobey the Monarchs Command Since his will was they should absolutely go to Mass nor leave it to their discretion either to go to Mass or undergo the Penalty ordained for not going Lastly neither does the Judgment of the people concerning their own safty in many cases take away the absolute power of a Monarch For a General of an Army hath an absolute Power over the Lives of his Soldiers but does it derogate from his absolute power that he knowes he shall not be obeyed if he command his Men to leap down a Precipice or to kill each other ' But Mr. H. proposes two or three expedients to help this inconvenience of the want of a publick Judg. First He says a Subject is bound to yield to a Magistrate where he cannot de jure challeng obedience if it be in a thing in which he can possibly do it without subversion to the Goverment and in which his Act may not be made a leading Case and so bring on a prescription against public liberty And again he saith If the Act in which the Exorbitance or Transgression of the Monarch is supposed to be be of lesser moment and not striking at the very Being of the Government it ought to be borne by publick patience rather then to endanger the Being of the State But these Salvoes however moderate and sober will not please our Author at all Anarchy 285. ' For he will have them to be but Fig-leaves to cover the nakedness of Mr. H's limited Monarch formed upon weak supposals in cases of lesser moment For if the Monarch be to govern only according to Law no transgression of his can be of no small moment if he break the bounds of Law for it is a subversion of the Government it self and may be a leading case and so bring on a prescription against publick Liberty and strikes at the very being of the Government it self and let the case be never so small yet if there be illegality in the Act it strikes at the very being of limited Monarchy which is to be legal unless the Author will say as in effect he doth that his limited Monarch must govern according to Law in great publick matters only but that in smaller and which concern private Men he may rule according to his own will All which