as his Lord and Master without his consent Suppose then that Adam had been so cruel and unnatural as some Fathers are and being sensible of the profit he received from his Sons labours would never have given them leave to have left his Family and have set up for themselves nor to have had any thing of their own but onely allowing them and their Wives a bare subsistance have kept them like slaves as long as they lived the Author I suppose would reply That he might have done so if he had pleased and that the Sons had no lawful means to help themselves since he onely was Judge when or whether ever it was fit to set them free or no. But I desire to know whether Adam had this power by a natural Right or an acquired not by the latter for I have already proved that neither Generation nor Possession can confer an absolute Right over the person of another Nor yet could he have it by the Sons consent for they would never give their consent to such an absolute slavish subjection Nor yet could he have any such Right by the revealed Will of God since I have also proved that such an absolute subjection is nowhere requir'd by him in Scripture But now to return to the acquired Right of Education neither can that confer so absolute a power over any mans person as that therefore he should be a slave to his Fosterer as long as he liv'd since admitting that the Father or other person that takes upon him that care may perhaps justly claim a Right in the service or labour of the Childe to satisfie them for their trouble and charge in bringing him up Yet it does not therefore follow that this service is due as long as the Childe lives but rather until such time as they can make his labour satisfie them for their charge and trouble in keeping him which may very well be by that time the Child attains to twenty five years of age at farthest And there are those that have offered to breed up and maintain all the Foundlings and Bastard-children in England if they may be bound to serve them until about that age So that I see no reason why a few years Education should give any man a Right over another person as long as he lived But if it be urged that the Childe owed his life to his Father or Fosterer since without his assistance he must have perisht and therefore the service of the Child 's whole life is but little enough to recompence it to this I answer That the Parents are under an absolute obligation by the Laws of God and Nature to breed up their Childe and they sin if they do not perform it as they ought the end of a Father not being chiefly for the breeding up and preservation of the Child and therefore there is no reason he should acquire such a property in him meerly because he did his duty and the intent of a Father being to better the condition of his Son and not to make it worse I doubt whether an absolute or perpetual Servitude or Death it self were the better bargain and if this Right will not hold for the Father himself much less will it for a Fosterer since he is likewise obliged by the Laws of Nature and Humanity if he be able to breed up the Child he finds and not to let it perish So that the advantage he may make of the Child ought not to be the principal end of his undertaking but the doing of good to mankind and the advantage is to be considered onely as an encouragement not as the onely motive to his duty since he is obliged to do the same thing though he were sure the Childe would either die or be taken away from him before it could be with him half long enough to satisfie him Neither does this reason hold true according to the Scripture-rules of Gratitude that a man hath Right to exact of one to whom he hath done a Courtesie or bestowed a Benefit a Return as great as the Benefit bestowed since this were not beneficence but meer bartering or exchange And a man who had his life saved by anothers assistance suppose by pulling him out of the water was obliged by this principle to leave his life at his disposal ever after Therefore I see no reason from all that hath yet been said why a Son when he comes to be a man able to shift for himself may not in the state of nature marry and separate himself from his fathers Family even without his Fathers consent if he cannot otherwise obtain his liberty by his entreaty and all fair means Not but that the Father may if he please disinherit his Son for so doing or for marrying without his consent since every man is free to dispose of his own upon what conditions he thinks fit And the Son was to have considered before-hand which he valued most his own Liberty or his Fathers kindness and the hopes of his share of his Estate after his death But I now come to the Author 's main Argument from Scripture-Examples That the Patriarchs by a Right derived from Adam did exercise as Heads of their respective Families a dominion as absolute as that of any Monarch And so instances in Thamar brought out to be burnt by her Father-in-law Judah Touching War Abram 's commanding an Army of 318 Souldiers of his own Family Esau 's meeting his Brother with 400 men at Arms For matter of Peace Abram 's making a League with Abimelech And that these acts of judging in capital Crimes of making War and Peace are the chiefest marks of Soveraignty that are found in a Monarchy All which I shall endeavour to answer First The instance of Judah rather makes against him for he confines this power before to the chief Father of the Family and will never have Children to be free from subjection to their Fathers whereas in this case Judah as Head of his own Family exercised an absolute power of Life and Death and so was free from subjection to his Father Jacob who was then living And suppose as the Text Gen. 38. expresses Judah went down from his Brethren to a certain Adullamite and there married and set up a distinct Family yet this will not help the Author since p. 33. he will not allow the Fatherly Authority to be confined to one Family if the Families were at such a distance as they might receive their fathers commands which lies upon him to prove And therefore this subjection was not perpetual Secondly I shall shew by another Example that the Head of a Family hath not absolute power of the lives of his Children and Grandchildren and that is from Reuben's pathetical Speech Gen. 42. to his Father Jacob when he refused to send Benjamin with him into Egypt Slay my two sons says he if I bring him not unto thee Now if Jacob had this absolute power as a Father it had been impertinent
in the Assembly of Estates To which the answer is obvious that though it is true the Monarchs passing of Laws whether in the great Council or in his privy Council be but a matter of form if the Legislative power remain wholly in himself yet since even the forms and Circumstances in doing things are such essential things without which business cannot be done If therefore the people made it part of their original Contract with their Prince at first that he should make no laws but what should be of their proposing and drawing up and that he might refuse if he pleased the whole but should not alter any part of it This though in its self a matter of form yet being at first so agreed is indeed an original and fundamental constitution of the Government Therefore the Author is as much mistaken in his Divinity as his Law when Patriarcha P. 97. Resolves the question in the affirmative Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws That the Subject ought to break the laws if his King command him Where as as the Author hath put it nothing is more contrary to Law and Reason for so it would be no sin for Souldiers or others to give and take away mens Goods by force or turn them out of their houses if they could produce the Kings Commission for it and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal for though it was forged yet the forgery being known but to very few it was in respect of those who acted by vertue thereof all one as if it had been true and according to this Authors Divinity Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants since the King by his Commission commanding a man to serve him in the Wars he may not examine whether the War be just or unjust but must obey since he hath no authority to judge of the causes of War which if spoken of such Wars as a King hath a right to make is true but of all warin general nothing is more false as appears by the instance before given nor are the examples the Author there brings at all satisfactory as that not only in humane Laws but also in Divine a thing may be commanded contrary to law and yet obedience to such commands is necessary the sanctifying the Sabbath is a Divine law yet if a Master command his Servant not to go to Church upon a Sabbath day the best Divines teach us that the Servant must obey this Command though it may be sinful and unlawful in the Master because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding Where if the Author suppose as I do not that the Sunday which he improperly calls the Sabbath cannot be sanctified without going to Church or that going to Church on that day is an indispensible duty the Master commanding the contrary ought no more to be obeyed than if he should command his Servant to rob or steal for him but if going to Church be a thing indifferent or dispensible at some times then the Author puts a Fallacy upon his Readers arguing from the non-performance of a thing which is doubtful or only necessary secundum quid in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful Since it is sinful for any Subjects to obey the King 's private or personal Commands in things unlawful and contrary to known positive laws The laws only seting the bounds of Property in all Commonwealths so that though it be no sin in Turky or Muscovy for an Officer to go and setch any mans head by vertue of the Grand Seigniors Commission without any trial or accusation I suppose any man that valued his life would say it were murder for any person to do the same by the Kings bare Commission in England and yet there is nothing but the Laws and Customs of each Government that creates the difference Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law since there are some Laws which the King hath power to dispence with and others which he hath not and others which he may dispence with but yet only for the publick good in cases of extreme necessity But to affirm as the Author does without any qualification or restriction that it is a sin to disobey the Kings personal Commands in all cases however issued out favours of Mr. Hobs Divinity as well as Law nor does the Author himself when he hath thought better on 't Patriark P. 99. assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws and to defend the peoples rights as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right So it is true the King hath a power to pardon all Felonies and Manslaughters and perhaps Murders too yet supposing this power should be exerted but for one year towards all Malefactors whatsoever any man may easily imagin what such a Prerogative would produce So that the publick good of the Kingdom ought to be the rule of all such Commands and where that fails the right of commanding ceases Ib. 99. As for the instance of the Court of Chancery it is not a breach of the Kings Preogative but part of the Common Law of this Kingdom so no man that understands any thing of Law or Reason will affirm that it is a Court of that exorbitant power that it is limited by no rules or bounds either of Common or Statute Law or of the Laws of aequum and bonum or that every thing that a Chancellour who is keeper of the Kings Conscience decrees must be well and truly decreed since this were to set up an absolute Tyrany But I shall now proceed to examine the rest of the reasons the Author gives either in this Treatise or his Patriarcha against the possibility of a limited Monarchy He finds fault with Mr. H. P. 281. ' For asserting that a Monarch can have any limitation ab Externo and that the sole means of Soveraignty is consent and fundamental contract which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection upon which our Author inquires thus if the sole means of a limited Monarchy be the consent and fundamental contract of a Nation how is it that he saith a Monarch may be limited by after condescent is an after condescent all one with a fundamentnl contract or with an original and radical constitution why yet he tells us it is a secundary original constitution A secundary original that is a second first
although it look fine yet examined to the bottom signifies little for it is not true that every the least transgression of the bounds of Law is a subversion of the Government it self since if done perhaps only to one or a few persons it does not follow that therefore it must be a leading case and so bring on a prescription against publick Liberty in all cases Neither does the Subjects bearing with it not contribute otherwise then accidentally to this breach of Liberty Since he is obliged to bear it not because it is just but because he either may hope to have redress by the ordinary course of Law or else by petitioning the Assembly of Estates when they meet who are partly ordained on purpose to remonstrate the Grievances of Subjects to their Prince and thereupon to have them redressed Nor is this limited Monarch as the Author would infer less obliged to govern according to Law in smaller or private matters then in great and publick ones Only in many smaller matters Princes or their Officers may through ignorance or inadvertency sometimes transgress the true bounds of Law which they would not do perhaps if they were better informed And so likewise if the Subject bear it it is not from the Legality of the Act but from this great Maxime in Law and Reason that a mischief to some private men is better than an inconvenience in giving every private person power that thinks himself injured by the Prince or his Officers to be his own Judg and right himself by force since that were contrary to the great duty of every good Subject of endeavouring to preserve the common peace and happiness of his Country which ought to be preferred before any private mans Interest So on the other side if the oppression or breach of Laws be general and extend to all the People alike if the reason of the case alter why may not the practicedo so too ' But Mr. H. gives us another remedy in this case that if the Monarchs Act of Exorbitancy or Transgression be mortal and such as suffered dissolves the Frame of the Government and publick Liberty then the illegality is to be laid open and redressment sought by Petition Which is true for an Appeal to the Law from the violence of subordinate Ministers is really a Petition for Justice to the King himself who is by the Law supposed present in the persons of his Judges that represent him and this the Author himself in a better humour does confess in his Patriarcha P. 93. The people have the Law as a familiar interpreter of the Kings pleasure which being published throughout the Kingdom doth represent the presence and Majesty of the King also the Judges and Magistrates are restrained by the common Rules of Law from using their own Liberty to the injury of others since they are to judg according to the Laws and not to follow their own Opinions And because it might so happen that the King may be sometimes surprised or importuned to write Orders or Letters to the Judges to direct them to act contrary to the Law The King himself in Parliament hath declared See the Oath of the Justices 18. E. 3. what Oath these Justices shall take when they are admitted into their Office where among other things they swear thus And that ye deny no man common right by the Kings Letters nor none other mans nor for none other cause and in case such Letters do come to you contrary to the Law that ye do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding the same Letters and concludes thus And in case ye be from henceforth found in default in any of the points aforesaid ye shall be at the Kings will of Body Lands or Goods thereof to be done as shall please him as God help you c. And the Lord Chief-Justice Anderson and his Fellow-Justices in the Common-Pleas who upon so great a point as Cavendishes Case was 35 El. having consulted with all the Judges of England delivered their Opinions solemnly in writing that the Queen was obliged by her Coronation-Oath to keep the Laws and if they should not likewise observe them they were forsworne Anderson p. 154 155. Which Will of the Kings is supposed to be as well declared by the House of Peers his supreme Court of Justice as by any other way See the Judgment upon Tresillian and the rest of his Brethren 21 Rich. 2. and the Impeachment of the House of Commons against the Judges that gave their Opinions contrary to Law in the case of Ship-money Vide the subsequent Act of Parliament 17 Car. 1. Chap. 14. declaring that upon the Tax called Shipmoney and the Judgment Entr. 1. H. 7. 4. b. the judicial opinions of the said Justices and Barons were and are contrary to the Laws and Statutes of this Realm and the Liberty of the Subjects c. which if it be truely observed there can never be any fear of a Civil War or popular Commotion since our Law supposes the King can do no wrong that is in his own person And therefore Sir John Markham when Chief Justice told King Edward the 4th That the King cannot arrest any Man himself for suspition of Treason or Fellony as other of his Lieges may for if it be a wrong to the party grieved he has no remedy Therefore if any Act or thing be done to the Subject contrary to the Law the Judges and Ministers of Justice are to be questioned and punished if the Laws are violated and no reflection made upon the King who is still supposed to do his Subjects Right Si factam fuerit injustum says Bracton per inde non fuerit factum Regis And thus much will serve for a further Answer to the Authors Query before mentioned Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws since all the Subjects both great and small are supposed to know what the Rights and Priviledges of the Subject are as well as what are the Prerogatives of the Crown nor are these reserved Cases so many or so difficult as the Anthor would make us believe but that they may be easily understood without Appealing to any other Judg then the Conscience of every honest man And though the King may for our common defence in time of War make Bulwarks upon another mans Land or command a House to be pull'd down if the next be on Fire or the Suburbs of a City to be demolished in time of War to make it serviceable though men may justify their obedience in such Cases yet it were folly and madness from thence to argue that the King were as much to be obeyed if he commanded us to pull down a whole Town for his Diversion or to take away all mens Lands or Goods at his Pleasure Since if he should be so weak as to command it it were his unhappiness
HONI SOIT QVI MAL Y PENSE CAROLUS SECUNDUS Dei Gratia Angl Scotiae Franciae Et Hiberniae Rex Fide Defensor etc. F. H. Van Houe Sculp Patriarcha non Monarcha THE Patriarch Unmonarch'd BEING OBSERVATIONS ON A late Treatise and divers other Miscellanies Published under the Name of Sir Robert Filmer Baronet IN WHICH The falseness of those Opinions that would make Monarchy Jure Divino are laid open AND The true Principles of Government and Property especially in our Kingdom asserted By a Lover of Truth and of his Country LONDON Printed for Richard Janeway in Queens-head-Alley in Pater-Noster-Row 1681. THE PREFACE To the READER IT may not be unknown to those that have been conversant in Books and Pamphlets published during the late unhappy times that all the Treatises except the Patriarcha which are the subject of the ensuing Observations were published at first in single Tracts without Name though they have since come out under that of Sir Robert Filmer Baronet deceased All which though I hope they might be written with an honest designe and in defence of Kingly Government and of his then Majesties lawful and just Rights then trampled upon by a domineering Faction and may contain some things useful enough to confute divers levelling Notions then too much in fashion yet whilst this Gentleman as violent men commonly do ran into the other extream and must needs assert an Absolute Monarchy Jure Divino so that no other Government can be lawfully exercised nor the least Limitations set to it without Sacriledge and diminution of that Soveraignty which is derived from no less an Original than God himself and by denying that Princes can ever be obliged by any Fundamental or after-Contracts or Concessions or by any Coronation-Oaths to abstain from the Lives Liberties or Properties of their Subjects farther than as they themselves shall think it convenient so that there can be no such thing in nature as a Tyrant I leave it to the judgment of the impartial Reader whether what this Author might designe as Physick hath not served rather to inflame the Distemper and whether he hath not by such rash and ill-grounded Assertions given too much advantage to the Enemies of Kingship to retort That since all Government was ordained by God for the good of Mankind that could never be of divine institution which would render all things to be so much the Princes Right that the Subjects can claim a Property in nothing which he shall please to take from them and that however they use them yet they still exercise but their own Royal Rights and Prerogatives So that by thus taking away all distinctions between Kings and Tyrants and between Slaves and Subjects I fear that like Rehoboam's harsh Answer to his Peoples Complaints he hath not given many of his Readers a prejudice against that Government which temper'd by known Laws I take to be the best in the World For as Superstition can never serve to advance the true Worship of God but by creating false Notions of the divine nature in mens minds or render it not as it ought to be the Object of their Love and Reverence but servile Fear so I suppose this asserting of such an unlimited Power in all Monarchs and such an entire Subjection as this Author exacts from Subjects can produce nothing but a Slavish Dread without that Reverence Esteem and Affection for their Princes Person and Government which is so necessary for the quiet of Princes and which they will have whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression according to just and known Laws And that contrary Notions of this Supreme Power are so far from setling mens minds in a sober and rational Obedience to Government that they rather make them desperate and careless who is their Master since let what change will come they are sure to be no better than Slaves as may be seen in all the Absolute Monarchies from France to China You may also consider whether most of the Arguments this Author makes use of for absolute Obedience to Vsurpers as representing the lawful Prince and Father of the People might not serve for the establishing of Oliver and the Rump-Parliament as well as a lawful Soveraign since I am sure Milton makes use of the same places of Scripture for this purpose which this Author and Salmasius do for another So that most moderate men nay the Author 's own Friends may wish that either these Treatises had never been published or at least have been left in private Studies and Book-sellers shops amongst those heaps of Pamphlets condemned to dust and oblivion since no man can imagine to what end this Patriarcha and other Tracts should come out at such a Time as they did unless the Publishers thought that these Pieces which printed apart could onely serve to ensnare the Vnderstandings of some unthinking Country-Gentleman or Windblown-Theologue could do no less being twisted into one Volume than bind the Consciences and enslave the Reasons of all his unwary Readers Since therefore short Treatises of this kind written in a gentile stile and a formal appearance of Law and Reason do more mischief among young men and those that have not leisure to look much into the grounds of this Controversie than tedious Volumes And that this Notion of the Divine and Patriarchal Right of absolute Monarchy hath obtain'd so much among some modern Church-men who cry it up as their Diana and consequently hath so much infected our Vniversities that are the Seminaries where the Youth of this Nation do commonly receive Principles both in Religion and Politicks which if they have not a mind large enough to overcome the prejudices of Education will mis-lead them as long as they live and so make them desire at least to alter that Government and give up those Priviledges which their Ancestors were so careful to preserve and deliver down to Posterity I thought my self obliged having perhaps more leisure though less parts and learning than a great many others to do God my King and Country this service as to lay open the weakness of the Reasons and the dangerous consequences of this Author's Principles And though men of greater abilities may either dispise such weak Arguments as this Author makes use of or else think it below them to spend so much time from their more useful and beneficial Employments and that indeed his Reasons are not so knotty or intricate that they require any more than honest sence and plain English to lay them open to the unprejudiced Reader yet since the Poyson hath spread so far among the men of Letters and in the Country among divers of the Gentry and Clergie I thought it not amiss to do my weak endeavour to undeceive them And in so doing I desire to be thought no other than what I really am a zealous assertor and defender of the Government establisht by Law
onely was named in the Grant P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis That it may seem absurd that Kings now are Fathers of their People since Experience shews the contrary It is true says he all Kings are not the natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People and so in their right succeed to the exercise of Supream Jurisdiction and such Heirs are not onely Lords of their own Children but of their Brethren and all others that were Subjects to their Fathers And therefore we finde that God told Cain of his brother Abel His desires shall be toward thee and thou shalt rule over him Accordingly when Jacob bought his brothers Birthright Isaac blessed him thus Be Lord over thy brethren and let the sons of thy mother bow before thee P. 20. As long as the first Fathers of Families lived the name of Patriarch did aptly belong unto them but after a few Descents when the true Fatherhood it self was extinct and onely the right of the Father descended upon the true Heir then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy By this means it comes to pass that many a Child by succeeding a King hath a right of a Father over many a gray-headed Multitude and hath the Title of Pater Patriae It may be demanded What becomes of the Right of Fatherhood in case the Crown does escheat for want of an Heir whether doth it not then devolve to the People The Answer is It is but the negligence or ignorance of the People to lose the knowledge of the true Heir for an Heir there is always If Adam himself were still living and now ready to die it is certain that there is one man and but one in the world who is next Heir although the knowledge who should be that one man be quite lost P. 21. This ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supream Power is devolved to the Multitude or that they have power to rule and chuse what Rulers they please No the Kingly power in such cases escheats to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the uniting of great Families or petty Kingdoms we finde the greater Monarchies were at first erected and into such again as into their first matter many times they return again And because the dependancy of ancient Families is oft an obsure and worn-out knowledge there the wisdom of many Princes have thought fit to adopt those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enabled them or made them fit and capable of such Royal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please And he that is so elected claims not his power as a Donative from the People but as being substituted by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People P. 22. In all Kingdoms or Commonwealths in the world whether the Prince be the Supreame Father of the People or but the true Heir of such a Father p. 23. or whether he come to the Crown by usurpation of the Nobles or of the People or by any other way whatsoever or whether some few or a multitude govern the Commonwealth yet still the Authority that is in any one or in many or in all these is the onely Right and natural Authority of a Supream Father There is and always shall be continued to the end of the world a natural Right of a Supream Father over a multitude although by the secret Will of God many do at first most unjustly obtain the Exercise of it To confirm this natural Right of Regal Power we finde in the Decalogue that the Law which enjoyns Obedience to Kings is delivered in the Terms of Honour thy Father and thy Mother as if all Power were originally in the Father If Obedience to Parents be due immediately by a natural Law and Subjection to Princes but by the mediation of an humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate P. 24. If we compare Rights of a Father with those of a King we finde them all one without any difference at all but onely in the latitude or extent of them As the Father over one Family so the King as Father over many Families extends his care to preserve feed clothe instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Soveraignty tend onely to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Priviledges so that all the Duties of a King are summed up in an Vniversal Fatherly Care of his People I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words and so be the better able to judge whether I understand and answer him or not as because it contains the substance and strength of all that the Author had to say in defence of it So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it His first Argument against the natural Freedom of Mankinde is drawn from Scripture and from Bellarmine's own Concession That Adam was and consequently every other Father ought to be a Prince over his Posterity And as Adam was Lord over his Children so his Children under him had a power over their own Children suberdinately to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People So that neither the Children of Adam or any else can be free from subjection to their Parents and this subjection to Parents being the foundation of all Legal Authority by the Ordination of God himself therefore no man can be born in a state of Freedom or Equality In answer to which I shall not concern my self what Bellarmine or any other have granted but would be glad to know where and how God hath given this Absolute power to Fathers over their Children and by what Law Children are tyed to an Absolute Subjection or Servitude to
these Patriarchs â—ere For this will serve toward the solving those â—xamples he puts of Abram's power of Peace and â—ar and of Judah's power of Life and Death over 〈◊〉 Daughter-in-law Thamar We will first then conâ—er the power of a Father by the Law of Nature â—er his Children and then that of a Master of a Faâ—ly over his Wife Servants or Slaves To begin â—…th that of a Father as the most worthy I shall deavour to search into the Original of the Father's â—wer over the persons of his Children and how far extends It is evident that this Power of Fathers over their â—ildren can only take place in the state of Wedlock 〈◊〉 as to Children got out of Marriage it is uncertain â—o is their Father who can only be known by the declaration of the Mother and she sometimes cannot certainly tell her self So that no man is obliged to take care of or breed up a Bastard because the Mother if she had her liberty of keeping what company she pleased can never morally assure him that the Child is his therefore unless he take upon him the care and education of this Child it belongs to the Mother and not to him to provide for it So that the Right of the Father over his Child commences by vertue 〈◊〉 the Marriage which is a mutual Compact between a Man and a Woman for their Cohabitation the generation of Children and their joint care and provision for them So that though by the Law of Nature which is confirm'd by the Law of God the Woman as the weaker vessel is to be subject to the Man as the stronger stouter and commonly the wiser creature 〈◊〉 whose care and courage she must owe the greatest parâ— of her provision and protection yet she is not without an Interest in the Children since she is under 〈◊〉 obligation to perform her part and that the most 〈◊〉 borious and troublesome in their Education thougâ— her Power and Right in them be still subordinate 〈◊〉 that of the Man to whom by force of the Marriage shâ— hath already subjected herself Some Writers therâ— fore think they have done sufficiently when they 〈◊〉 us that the Father hath an absolute Dominion ovâ— his Child because he got it and is the cause of it being By this Argument the Mother hath greatâ— Right over the person of the Child since all Natâ— ralists hold the Child partakes more of her than of 〈◊〉 Father and she is besides at greater pain and troubâ— both in the bearing bringing it forth nursing anâ— breeding it up But if it be answered that the Maâ— being Master of his Wife is by the Contract so likâ— wise of her Issue Then it follows that this power 〈◊〉 the Father does not commence barely from Geneâ—… tion but is acquired from the Contract of Marriage which till I meet with some reason to the contrary I see not why it might not be so agreed by the Contracts that the Father should not dispose of the Children without the Mothers consent Since we see it often so agreed in the Marriages of Soveraign Princes Vid. Articles of Marriage between King Philip and Queen Mary in Godwin's Annals An. 1554. Thuanus Lib. IX So likewise where a Subject marries his Queen as the Lord Darnley's Marriage with Mary Qu. of Scotland the Soveraignty and consequently the Power over the Children to be born remained entirely in Her who are always supposed to be in the state of Nature in respect to each other Yet though I will not deny but some Gratitude and Acknwledgment is due from Children to Parents even for this that they did enter into the state of Marriage for their generation and were the occasion of their Being Yet I do not see how by this alone a Father acquires an absolute power and dominion over the person of the Child to dispose of it as he thinks fit Since Parents acting here only as Natural and not Moral Agents they are not the voluntary Causes of its generation Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children upon so slight a foundation We must therefore trace this Right of Fathers over his Children to a more true original than any of these Since then all the Laws of Nature or Reason are intended for one end or effect viz. the common good and preservation of Mankinde and that Marriage is no otherwise a Duty than as by the propagation of our Species it conduces to without the help and assistance of others and that the Parents entred into this state of Marriage for the procreation of Children both the Instinct of Nature and Law of Reason dictate that they are obliged to take care of and provide for that Child which they as subordinate Causes have produced as being those on whom God hath imposed this Duty which is much greater than that of Generation for now the world is sufficiently peopled it may be doubted whether any person is obliged to Marry further than it may consist with their conveniency or course of Life But Parents when they are Married are tyed by the Laws of Nature to take care of the Children Therefore I suppose the highest Right of Parents in their Children doth arise merely from their discharge of this great Duty of Education as may appear from this Instance Suppose the Parents not being willing to undertake the trouble of breeding up the Child do either expose it or pass over their Right in it to another assoon as it is born I desire to know if the person that finds this Child or he to whom it is assigned breed it up until it come to have the use of Reason what Duty this Child can owe his Parents if they are made known to him Certainly all the obligation he can have to them must be upon the score of their begetting him which how small that is you may observe from what hath been said before nor can the Parents claim any further Right in this Child since by their exposing and granting it away they renounced all the Interest they could have in it so that the Duty and Gratitude he should have owed them had they taken upon them the care and trouble of breeding him up is now due to his Foster-Father or Mother who took care of him until he was able to shift for himself From whence it is evident that the highest Right which Parents can have in their Children is not meerly natural from generation but acquir'd by their performance of that nobler part of their Duty And so the highest Obedience which Children owe their Patents proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents for the trouble and care they put them to in their Education Having now I hope found out the Original of Parents Right and Interest in their Children and the chief ground of their Gratitude and Duty to their Parents we will now proceed to
the Second Point proposed and consider what kinde of Right this is and how far it extends Since therefore the Father's greatest interest in his Child proceeds from his having bred it up and taken care of it and that this Duty is founded on that great Law of Nature that every Man ought to endeavour the common good of Mankinde which he performs as far as lies in his power in breeding up and taking care of his Child it follows that this right in the Child or power over it extends no farther than as it conduces to this end that is the good and preservation thereof and when this Rule is transgressed the Right ceases For God hath not delivered one man into the power of another merely to be tyrannized over at his pleasure but that the person who hath this Authority may use it for the good of those he governs And herein lies the difference between the Interest which a Father hath in his Children and that property which he hath in his Horses or Slaves since his right to the former extends only to those things that conduce to their Good and Benefit but in the other he hath no other consideration but the profit he may reap from their labour and service being under no other obligation but that of Humanity and of using them as becomes a good-natur'd and merciful man yet still considering and intending his own advantage as the principal end of his keeping of them Whereas in his Children he is chiefly to design their good and advantage as far as lies in his power without ruining himself and though he justly may make use of their labour and service while they continue as part of his Family yet it is not for the same end alone that he uses his Horses or Slaves but that his Children being bred up in a constant course of Industry may be the better able either to get their own living or else to spend their time as they ought to do without falling into the Vices of Idleness or Debauchery So that it is evident the Father has no more right over the Life of his Child than another man being as much answerable to God if he abuse this Right of a Father in killing his innocent Son as if another had done it Neither hath he from the same Principles any right to maim or castrate his Child as this Author allows him to do in his Directions for Obedience much less sell him for a Slave Therefore it is no part of the Law of Nature unless he cannot otherwise provide for it but of the Roman or Civil-Law that a Father should have power to sell his Son three times For the Father is appointed by God to meliorate the condition of his Child but not to make it worse since it is not himself but God that properly gave him his being So that I hope I have sufficiently proved there is a great difference between a Child and a Slave or a Servant for Life though this Authour will have them in the state of Nature to be all one But for the better clearing of this point how far the power of Parents over their Children extends I think we may very well divide as Grotius does the life of the Child into three periods or ages De J.B. l. 2. c. 5. § 2. The first is the time of imperfect judgment or before the Child comes to be able to exercise his Reason The second is the period of perfect Judgment yet whilst the Child still continues part of his Fathers Family The third is after he hath left his Father's and either enters into another Family or sets up a Family himself In the first Period all the actions of Children are under the absolute dominion of their Parents for since they have not the use of Reason nor are able to judge what is good or bad for themselves they could not grow up nor be preserved unless their Parents judged for them what means conduced to this end yet this power is still to be directed for the principal end the good and preservation of the Child In the second Period when they are of mature Judgment yet continue part of their Fathers Family they are still under their Fathers command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns and in both these Ages the Father hath a power to set his Children to work as well to enable them to get their own Living as to recompence himself for the pains and care he hath taken and the charge he may have bin at in their Education For though he were obliged by the Law of Nature to breed up his Children yet there is no reason but he may make use of their labour as a natural recompence for his trouble And in this Period the Father hath power to correct his Son if he prove negligent or disobedient since this Correction is for his advantage to make him more careful and diligent another time and to subdue the stubbornness of his Will But in other actions the Children have a power of acting freely yet still with respect of gratifying and pleasing their Parents to whom they are obliged for their Being and Education since without their care they could not have attained to that age But since this Duty is not by force of any absolute Subjection but only of Piety Gratitude and Observance it does not make void any act though done contrary to those Duties as Marriage and the like for the gift of a thing is not therefore void though made contrary to the Rule of Prudence and Frugality In the third Period they are in all actions free and at their own dispose yet still under those obligations of Gratitude Piety and Observance toward their Parents as their greatest Benefactors since if that they have well discharged their Duty toward their Children they can never in their whole lives sufficiently recompence so great benefits as they have received from them But it seems the Authour is not satisfied with these distinctions Observations on Grotius de J. B. p. 62. but saies He cannot conceive how in any case Children can ever naturally have any power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please them And though by the Laws of some Nations Children when they attain to years of discretion have Power and Liberty in many actions yet this Liberty is granted them by positive humane Laws only which are made by the Supreme Fatherly Power of Princes who regulate limit or assume the Authority of Inferiour Fathers for the publick benefit of the Commonwealth So that naturally the Power of Parents over their Children never ceaseth by any separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents For my part I see no
reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary For he only tells us He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please without their Fathers leave and that naturally the Power of Parents never ceaseth by any separation c. but gives us no other reason than that they are always bound to study to please them As if this obligation of Gratitude and Complacency did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children and an absolute power over them in all cases whatsoever so that Children shall have no Right left to consult their own good or preservation in any case whatsoever Vid. Bodin de Rep. l. 1. c. 4. farther than the Father pleases As for Bodin and divers others that have writ on this subject they do no more than follow others who have asserted this Absolute Power upon no other grounds than the Jewish or Roman Municipal Laws but have never troubled themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Nature or Reason And most Treatises of this subject being commonly written by Fathers they have been very full in setting forth their own Power and Authority over their Children but have said little or nothing of the Rights of Children in the state of Nature towards their Parents Loc. sup laudat Therefore Bodin thinks he hath done enough in supposing that if a Father is wise and not mad he will never kill his Son without cause since he will never correct him without he deserve it and that therefore the Civil Law supposes that the Will of the Parents in managing the concerns of their Children is void of all Fraud and that they will rather violate all Divine and Humane Laws than not endeavour to make their Children both rich and honourable And from those instances out of the Roman Law supposes that Parents cannot so much as will any thing to their Childrens prejudice or so much as abuse this Fatherly Power of Life and Death And therefore thinks he hath sufficiently answered the Objection he makes that there have been some Parents who have abused this power so far as to put their Children to Death without cause He says They give us no Examples to the contrary And supposing this to have sometimes fallen out must therefore Legislators alter a wholsome Law because some persons may abuse it But if we consider what Bodin hath here said we shall finde every one of his Suppositions false For 1. he supposes it to be the Right of all Fathers by the Law of Nature to have an absolute power over the lives and persons of their Children 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point 3. That Fathers do seldom or never abuse this power 4. That if they do abuse it yet it is better to leave it in their hands than to abrogate it or retrench it The falseness of all which Assertions I either have already or else shall hereafter make manifest Only I shall remark thus much at present That upon Bodin's principle women that murder their Bastards would have a good time on 't because having no Husbands they have full power over the Life of their Children and there is no reason that it should be retrencht by any positive Laws because some offend against it But however this Argument of Bodin's would do our Author's cause no good for if Parents are to be trusted with this absolute power over their Children because of the natural affection they are always supposed to bear them then Princes ought not to be trusted with it since none but Parents themselves can have this natural affection towards their Children Princes as the Author grants having this power onely as representing these Parents Whereas Parentage is a natural Relation and neither can be created nor assigned farther than the Civil Laws of the Country have appointed and therefore there can be no adopted Son by the Law of Nature since Adoption arises chiefly from the promise and consent of the person adopted and partly from the Authority of the Civil Law or Municipal Law of the Commonwealth So that in relation to Princes upon this Reason of Bodin's cessante causa cessat effectus But indeed Bodin never dreamt of this fine Notion of our Author's that all Monarchs were not onely Heads but Fathers of their people or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino But I shall trouble my self no farther with him at present but shall proceed to consider this point of absolute Obedience a little farther I suppose the Author as any sober man else would grant that Children are not obliged so much as to attempt to perform the commands of their Parents in case they evidently appear impossible or extravagant such as a Father may give when he is in a fit of drunkenness madness or sudden rage which is all one with madness and of this who can judge but the Children who are to perform these Commands And in this case no man will deny but it is lawful for the Children to hold nay binde their mad or drunken Parents in case they cannot otherwise hinder them from doing mischief or killing either themselves their Mothers or Brethren So that though they may do this from that natural love charity which all men in the state of nature ought to shew toward each other yet they may likewise justifie the doing of it as Children who ought to have a greater concern for the good and preservation of their Parents than meer strangers and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations this being for the Fathers good and preservation and that for which he hath cause to thank them when he comes to himself And if it be said that the Son may then refuse his Fathers Commands or resist them pretending he is mad drunk or in a rage when he really is not and thereby take occasion to obey his Father no farther than he pleases to this I answer That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned or else onely pretends that he thinks so when really he does not If in the first case he erre in his judgment and the ignorance did not proceed from his own fault either of passion prejudice or too slight an esteem of his Fathers understanding he is not culpable though he make such a false judgment of his Fathers actions for God considering onely the sincerity of the heart does not require of any man more than he is able to perform But if on the other side the Son play the Hypocrite and refuse
the Son hath begotten But though Children may have this Right of defending their own Lives or those of their Wives and Children from their Fathers unjust violence when they can by no means else be preserved Yet I would not be here understood to give Children this right of resisting upon any less occasion as if the Father should only go about to correct his Son though without just cause it were therefore lawful for him to resist or beat his Father For we are obliged by the Law of Christ to bear smaller Injuries from others much more from a Father neither yet would I give them any right to continue this state of War and to revenge upon their Parents the Injuries they have formerly received at their hands For all Revenge taken in this sence as a satisfaction of the minde in returning of an evil or injury already received without any respect to a mans own preservation or the good of the person that did the wrong is unlawful even in the state of Nature Therefore this returning Evil for Evil which some improperly call Revenge is only justifiable for one or both of these ends either to make the party that hath done the Injury sensible of his Errour and seeing the Follies and Inconveniences of it to alter his minde and resolve to do so no more or as it may conduce to a mans own preservation for the future and be a warning to others not to injure him in like manner since they see he will not take injuries tamely But all this is still left to a mans own prudence how far he will pass them by And he is certainly obliged to leave off returning them assoon as he can be safe without it since otherwise quarrels would be perpetual Neither ought one who hath been highly obliged to a man perhaps for his life to return him evil for evil since scarce any Injury being great enough to cancel so great an Obligation Therefore since a Father who hath truely performed his Duty is the greatest Benefactor we can imagine in this life so no man ought to revenge an Injury though never so great upon him since it is not only undutiful but ungrateful and cannot serve either of those two ends for which alone this returning evil for evil is allowable For first it cannot make the Father see his fault since this correction being from a Son whom he looks upon as one highly obliged to him and so much his inferior will rather serve to exasperate than amend him Secondly Neither can this bearing of the Injury encourage others to attempt doing the like since all that know the case will likewise consider the person that did the wrong So that Patience alone is the only lawful means to make the Father see his Errour and be reconciled to his Child who ought to embrace it assoon as the Father offers it But as for the places of Scripture brought for absolute Obedience to Parents viz. the fourth Commandment Honour thy Father and thy Mother Children obey your Parents in the Lord Ephes 6.1,2 and Children obey your Parents in all things Col. 3.20 God did not intend here to give us any new Law or Precept concerning this Duty but to confirm and explain the fifth Commandment as that was but a confirmation of the Law of Nature by which men were obliged to reverence and obey their Parents long before that Law was given Therefore since the Laws of Nature which are but Rules of right Reason for the good of Mankinde are the foundation of this Commandment and of all those commands in the New Testament they are still to be interpreted according to that Rule Neither are other places of Scripture understood in any other sence such as are those of turning the right Cheek of giving away a mans Coat to him that would go to Law and the like all which we are not to Interpret Literally See Grotius and. Dr. Hammond's Annot. upon these places but according to Reason And so are likewise these words of St. Paul to be understood Children obey your Parents in all things that is in all things reasonable and lawful And this sence must be allowed of or else Children were bound to obey all commands of their Parents whether unlawful or lawful being comprehended under this general word All. Nor will the distinction of an active or passive Obedience help in this case for passive Obedience cannot be the end of the Fathers command and consequently his will is not performed in suffering since no Father can be so unreasonably cruel as to command a thing meerly because he would have occasion to punish his Son whom he thinks must not resist him Neither do these places appoint a Son when an infant a man of full age and perhaps an old man of threescore to be all governed the same way or that the same Obedience is required of them all And this brings me to a fuller Answer to the Author's Argument and to shew that though Children are indeed always bound in Gratitude to please their Parents as far as they are able without ruining themselves and to pay a great reverence to them yet that this submission is not an absolute subjection but is to be limited according to the Rules of right Reason or Prudence And to prove this I will produce instances from the case of Adam's Children since the Author allows no Father to have had a larger authority than himself We will therefore consider in the first place Adam's power as a Father in respect of his Sons marriage Suppose then that he had commanded one of his Sons never to marry at all certainly this command would have been yoid since then it had been in Adam's power to have frustrated Gods Command to mankind of increase and multiply and replenish the Earth which was not spoken to Adam and Eve alone since they could not do it in their persons but to all mankind represented in them And likewise Adam had been the occasion of his Sons incontinency if he had lain with any of his Sisters before marriage Secondly Suppose Adam had commanded Abel to marry one of his Sisters that being the onely means then appointed to propagate mankind which he could not love can any man think that he had been obliged to do it Certainly no for it would have been a greater sin to marry a wife he knew before-hand he could not live with than to disobey his Father for else how could this be true Therefore shall a man leave Father and Mother and cleave to his Wife Since then Adam could not force his Sons affections but onely recommend such of his Sisters as he thought would best suit with his humour therefore if the Son could not live without marriage and that Adam could not force a Wife upon him it was most reasonable that he should chuse a Wife for himself And to come to that other great point that the Son can never separate himself from his Fathers Family nor subjection
Authour is to be Servant to his Eldest Brother or to whomever else his Father pleased to bequeath him Is not the case the same And as for the quiet of the Family which is supposed to be preserved by the Sons absolute submission rather than his resistance in any circumstance I think it would rather increase Dissentions by encouraging of Fathers to use their Power over their Children not as Reason but Drunkenness or Passion may impel them Whereas this Right of Children in defending their Lives and not being obliged to give them up at their Fathers pleasure will rather make Parents act moderately and discreetly towards their Children when they know they are not obliged to stay or bear with them upon other conditions than that they may enjoy their Lives in safety and the ordinary means thereof with some comfort Not that I give Children any Right as I said before to disobey their Parents or resist them upon every slight occasion but rather to bear with their Infirmities as far as it is possible And to suffer divers Hardships and Inconveniencies from them rather than to resist or leave them considering the great obligation they owe them So that I do not allow this Remedy but in case of extreme Necessity yet of which the Sufferer only in the state of Nature can be Judge since in that state where there is no Umpire without both their consents but God only every man is Judge when his Life is in danger And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission without any respect to this Right then it would be his duty to give himself up to be robb'd or kill'd by any one who had the wickedness to attempt it because himself being innocent may go to Heaven and the other being guilty of an intent to rob or murder may be damned if he be killed And besides it would more conduce to the preservation of Mankinde that but one man should be lost whereas by resistance they may both perish Yet I suppose no man is so sottish as to hold he ought quit his own preservation in these cases or if he do hold it for discourse sake I am sure he would not be so mad as to observe it For this were such an Argument as to hold Because some men may abuse that Law of Self-preservation to another mans destruction Therefore it were unlawful to defend a mans self at all As for the Examples of those Nations and Common-wealths who have permitted Fathers to exercise a Despotick Power over their Children The Law of Nature or right Reason is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth which are often different and contrary to each other Therefore as to the Jewish Law though I will not say it was contrary to the Law of Nature yet it was extremely rigorous and severe in all its dispensations and does not now oblige Christian Common-wealths in this particular as in divers others much less in the state of Nature And as for the Romans they saw the inconveniencies of this Absolute Power and retrenched it by degrees until it came to be no more than now with us and in most Countreys of Europe So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children depending upon the Roman and Jewish Law may be easily answered from these grounds Having as I hope clear'd this main point of Paternal Authority and of Natural Obedience without giving an extravagant power to Parents on the one hand to abuse their power or a priviledge to Children on the other side to be stubborn or disobedient to their Parents If then this Paternal Authority extend farther than I have seated it I shall own my self beholding to any Friend of the Authour 's or his Opinions to shew me my errour But if they cannot I desire they would consider whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution can extend farther than the natural Authority of Fathers from whom they are supposed to derive it and on which it is founded And if it appears that Princes have such Power as our Fathers then all that the Authour hath writ on this subject signifies just nothing Therefore I shall now proceed to examine the rest of his Principles and shall I hope prove that supposing this Fatherly Power as absolute as the Authour fancies yet that his Divine Absolute Monarchy cannot however be derived from thence The Authour seems to think it a Question very easie to be answered If any one asks what comes of this Right of Fatherhood in case the Crown Fatherly power escheat for want of an Heir whether it fall to the People Patriarch P. 20. or what else becomes of it To which his Answer is That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir for an Heir there is always If Adam were still living and now were ready to die it is certain that there is but one Man and but one in the world who is next Heir although the knowledge who should be that one Man be quite lost So that this fine Notion signifies nothing now for Adam being dead and his right Heir not to be known it is all one as if he had none since for ought I know to the contrary the Authors Footman may be the Man But to help this the Author hath found out a couple of Expedients such as they be The first is Directions for Obedience p. 69. That an Vsurper of this Power where the knowledge of the right Heir is lost being in by possession is to be taken and reputed for the true Heir and is to be obeyed by them as their Father And if this will not do he gives us another and tells us Patriarch p. 21. The Government in this case is not devolved upon the multitude but the Kingly power escheats in such cases to the Fathers and independent Heads of Families For every Kingdom is resolved into those parts of which it was first made Each of which we will examine in their turn To begin with the former let us see if it be so easie a thing as the Authour makes it to know who was Adam's or any Monarch's right Heir setting the Municipal Laws of the Country aside so that the People cannot be excused of wilful Ignorance or Negligence if they loose this knowledg Where by the way I observe that as easie a thing as it was to know who was Adam's right Heir and upon whom by the Laws of God and Nature the Crown is to descend upon the Death of the Monarch yet he no where positively answers this important Question For sometimes he is to claim by descent as in this instance of the Heir of Adam sometimes by his Father's last Will as in the case of Noah's Sons according as the Examples out of
have survived his Father If he say that Adam might leave it to Seth by Will this is gratis dictum and it lies upon him to prove that Adam made a Will or if he did how it could bind his true Heir If he say that Seth ought to succeed and govern his Brethren as being nearer in bloud to Adam what reason was there that the eldest Son's son should be punished and lose his Birthright for that which was not his fault but misfortune viz. that his Father was murdered before his Grandfather died Nor could Seth claim being elder and consequently wiser than his Nephew for his Nephew must be older since Seth was not born until after Abel was killed But if it be affirmed that the eldest Son of Abel ought to succeed and represent his Father I ask by what Law If it be replied that it is to be supposed that Adam if he had made a Will would rather have had his Grandson succeed him than his younger Son this is gratis dictum and were to affirm that the Right of governing is bequeathable which I have already confuted But if it be said that this Son of Abels should succeed because he represents his Father I would ask them by what Law this Right of Representation should take place before propinquity of Bloud or how could the Fathers expectation onely confer a Right to his Son in that which the Father was never possessed of So that there being equal Reasons on both sides and neither Law nor Precedent in the case there remained no way to decide this Controversie but either Combate or the Judgment or Arbitration of the rest of Adam's Descendants I suppose the Author will not allow the former sufficient to confer a good Title since the best Title might have the worst success in that Appeal to the Sword If he allows the latter then this hereditary Monarchy of Adam became Elective and depended upon the Will of all the Heads of the Families which descended from Adam For it is not likely in so doubtful and material a point as who should govern any of them would lose the priviledge of giving his Vote And if so this Right of Succession depended upon their Wills which might give it to which of the two Competitors they liked best and this being once done might for quietness pass into a Custom or Law for the future And that this Right of Representation where the Son dies before his Father cannot be decided by the Law of Nature or Reason alone is evident in that divers Nations or distinct Tribes of People have had different Customs about it and have established this Right of Succession divers ways For though the Roman or Civil Law allow of this Right of Representation yet the Germans and all Nations descended from them did not admit it until very lately See Grotius de J. B. Li. cap. 7. which shews there is nothing but Custom in the case And upon this pretence the League in France admitted the Cardinal of Bourbon King by the name of Charles the X before his Nephew the King of Navar his elder Brothers Son who died before him And that this difficulty who shall succeed the Uncle or the Nephew hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom which is but the continued Will of the People may appear by those different Judgments that have been in all Ages made on this matter for when there arose a Controversie between Areus Son of Acrotatus eldest Son to Cleomenes King of Lacedaemon and Cleomenes the second Son of the said Cleomenes the Senate adjudged the Royalty for Areus against Clomenes But in Spain Mariani l. 13. c. 3. after the death of Alphonso the V King of Castile the States of Spain acknowledged his younger Son Sancho to be King and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son though he had the Crown left him by his Grandfathers Will. And when Charles the II King of Sicily died Vicerius in Vita Henry 7. and left a Grandson behind him by his eldest Son surnamed Martel and a younger Son called Robert the matter being referred to Pope Clement V he gave judgment for Robert the younger Son of Charles who was thereupon proclaimed King of Sicily And it seems Glanvil who was Lord Chief Justice under Henry II makes it a great Question who should be preferred to the Crown the Uncle or the Nephew So that it was no strange thing for King John to make himself King before his Nephew Arthur since it was a moot point among the Lawyers of that Age who ought to succeed And where no Power could intervene it was decided by War and sometimes single Combats which Historians mention to have been waged between Uncles and Nephews contending for the Principality and not onely in this case but in all others where the Succession of the Empire is not settled by such Laws or Customs it lies continually liable to be disputed between the Sons or Grandsons of the last Prince nor can ever be decided but by the Sword Of which there is an Example in one of the greatest and most absolute Monarchies in the world viz. the Empire of the Mogul where for want of settling the Succession at first by a positive Law See Bernier's Travels 1 part and Tavernier Lib. Sir Tho. Row's Embassie Purchas part Terrey's Relation of Indostan and making the Raias Omrahs or great Lords give their consent to it and swear to observe it and so have made and ascertained it as an inviolable Custom as it is in the Ottoman Empire now upon the death of an Emperour though he declare by his Will who shall be his Successor yet the Grandees who are so many petty Princes and lead the People under their Command after them as they please do not think themselves at all obliged to observe it much less to set the Crown upon the eldest Sons head but every man is for that Son of the last Mogul whom they like best that is him they conceive will suit best with their interests and designes Nor do the Brothers think themselves at all obliged to yield to their eldest Brother whom they are assured will put them to death or make them perpetual Prisoners So that every one provides for himself and makes his Party as strong as he can by Gifts and Promises among the Grandees against his Fathers death Nay lately this prize hath been played among the Sons even in their Fathers life-time as in the case of the late Sha-Jehan who lived to see all his Sons killed and his person made a prisoner by his youngest Son Aureng Zebe who is for ought I know Mogul at this day And if any man thinks this onely an Evil peculiar to this Empire and not to others let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies
and he shall find them managed much after the same rate Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first but even those that have been better constituted and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years And of this Scotland hath been a famous Example where after the death of King Alexander III and his Grandaughter Margaret of Norway two or three several Competitors claimed a Right to succeed But omitting others it was agreed that it lay between John Baylliol and Robert Bruce Earl of Carick both of them drawing their Discent from David Earl of Huntingdon Great Uncle to the last King in whom they all agreed the Right to the Crown would have been had he survived Baylliol claimed as eldest Son to Dornagilla Grandaughter to Margaret the eldest Daughter of the said Earl David Robert Bruce claimed as eldest Son of Isabel the second Daughter of the said David So that if Baylliol alledged his Discent from the eldest Daughter Bruce was not behind-hand but pleaded though it was true he was descended but from the second Daughter yet he being a Grandson and a degree neerer ought to succeed whereas Baylliol was but great Grandson to Earl David And though Dornagilla Baylliol's Mother was in the same degree with himself yet he being a man ought to be preferred before a woman in the same Line and that if the Laws of Scotland would have given it to Dornagilla if it had been an ordinary Inheritance yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances In short this Dispute did so divide the Nobility into Factions and puzzle the Estates of the Kingdom that not being able to decide it they and all the Competitors agreed to refer the Controversie to Edward I. King of England one of the wisest and most powerful Princes of his time who upon long advice and debate with twelve of the learnedest men of both Kingdoms at last adjudged the Crown to Baylliol or as the Scotch Historians relate because he would do him Homage for it which Bruce being of a higher spirit refused Yet this did not put an end to this great Controversie for though Baylliol was thereupon admitted King yet falling out not long after with King Edward to whom he owed all his greatness and having the worst of it the Nobility and States of Scotland revived Bruce's Title and declared him King who after a long War with England enjoy'd the Crown quietly at last and left it to his Issue whose Posterity in our present King enjoy it to this day To this I shall adde one Example more from Portugal within these hundred years King Henry called the Cardinal dying without Issue there was a great Controversie who should succeed for he died suddenly just as the States of the Kingdom were assembled to settle the Succession for he declared himself unable to decide it So that he onely left by his Will twelve Governours of the Kingdom who should govern during the interregnum but that the Crown should descend to him that should appear to them to have the best Title Four eminent Competitors put in their claims 1. Antonio called the Bastard who nevertheless pretended that he was lawful Son to Don Lewis second Brother to Henry the last King So that he had no more to do but to prove himself Legitimate 2. Alexander Duke of Parma who claimed as Grandson to Mary eldest Daughter to Don Duarte youngest Brother to the last King Henry and Son to King Emanuel 3. The Duke of Braganza who claimed as Son to Katherine second Daughter of the said Don Duarte yet alledged his Title to be best because he was the next of the Bloud-Royal who was a Native of Portugal as the Heir of the Crown as he pretended ought to be by a Fundamental Law of that Kingdom yet it seems that Law was not then so well known or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met 4. Philip the second King of Spain who claimed as Son to Isabella Daughter of Emanuel King of Portugal and so a degree nearer than the rest to Henry the last King The States and Governours differing the States were dissolved and during their recess the Governours not agreeing among themselves the King of Spain raised an Army and entering Portugal seiz'd the City of Lisbon and consequently all the rest of the Kingdom submitted to him and so made himself King by force And yet we have seen in his Grandson's time the Estates of Portugal declare this Title void and the Crown setled in the Posterity of the Duke of Braganza who still enjoy it by vertue of this Fundamental Law And that this Fundamental Law could not be altered but by the consent of the Cortes or States appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy And how much even Kings themselves have attributed to the Authority of their Estates appears by the League made between Philip the Long King of France and David King of Scots wherein this Condition was exprest That if there should happen any difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates of his side and then he should with all his power oppose him who would after this contest for the Crown So that our Author without cause lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason determine which was he And our Author should have done well to have set down some certain Rules how the People might be assured without a positive Law before made that they acknowledge the right Heir and not an Usurper to his prejudice CHAP. II. Observations on the Directions for Obedience in doubtful times and other places of his Patriarcha and other Treatises BUT since this Author rather than the disposal of a Crown shall fall to the decision of the People or States of the Kingdom will give an Usurper a good Right to it against all persons but him that hath the Right we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times and how far men are bound in Conscience to obey an Usurper whilst he that hath Right is kept out by him First he takes it for granted that all those that so eagerly strive for an original Power to be in the People do with one accord acknowledge that originally the Supream Power was
in the Fatherhood Vid. Mezeray Abregé Chron. An. 1318. and that the first Kings were Fathers of Families which if granted yet will not prove that this proceeded from that natural perpetual subjection which Children owe their Parents or that because they are Parents they are therefore Lords and Kings over them So that this being the Groundwork of whatever he says in this Discourse p. 67. if this be faulty as I hope I have proved it to be all that he builds upon this foundation signifies nothing Secondly he assumes that this Paternal power cannot be lost it may be transferr'd or usurped but never lost or ceaseth But as the power of the Father may be lawfully transferred or aliened so it may be unjustly usurped and in Vsurpation the Title of the Vsurper is before and better than the Title of any other than him that had a former Right for he hath a possession by the permissive Will of God which permission how long it will last no man ordinarily knows every man is to preserve his own life for the service of God and of his King or Father and is so far to obey an Vsurper as may tend not onely to the preservation of his King and Father but sometimes even of the Vsurper himself when probably he may he thereby preserved to the correction or mercy of his true Superiour And though by humane Law a long Prescription may take away a Right yet divine Right never dies nor can be lost or taken away The same he says p. 70. That in Grants and Gifts that have their original from God or Nature as the power of the Father hath no inferiour power of man can limit nor make any Prescription against them Vpon this ground is built that Maxime That Nullum tempus occurrit Regi no time bars a King Which second assumption is likewise false for I have already proved that all Fatherly power ceases with the life of the Father as Motherly power with the life of the Mother or else in the state of Nature a man must be left like other Cattle to be pickt up and markt by whoever can first seize him And secondly that it is false that this power and authority of a Father can be transferred to or usurped by another or that the Son owes the person to whom his Father transfers or sells him any other duty than as his Assignee performs the Office of a Father towards him Much less that an Usurper acquires any Right over the person of the Son in the state of Nature for otherwise if a Thief should procure strength enough to drive a Master of a separate Family out of doors and so this Rogue could subdue the whole House and set up for Lord and Master of it that then the Wife and Children and Servants were immediately bound to obey him because he hath a possession and is in by the permissive Will of God and so hath a better Right than any body else but the Master himself It is true indeed in this case every Member of this Family is bound to preserve his own life and may yield a passive Obedience to this Rogue for fear of his power and as far as he thinks it will conduce to his preservation but I do not see any obligation he hath from Conscience or Reason to obey this Robber farther than as he cannot help it but may take the first opportunity to drive him out of the House and call in his true Father or Master unless he hath made him any promise to be quiet and not assault him for then he is in the same state with a Prisoner upon parol for all Writers on this subject hold that nothing but a lawful War can give any man a Right over the person of another unless he become his Servant by some voluntary act of his own or otherwise the Slaves taken by the Argter-Pyrates were in a sad case for they were bound in Conscience never to escape without the consent of their Masters Nor upon the Authors principles is there any difference between a Father of a Family in the state of Nature and a Prince since he tells us more than once that a Kingdom is but a large Family And consequently no difference between an Usurper of the Fatherly power and that of a Monarch onely the Rogue that usurped the one could call himself but Master of the Family but the other would stile himself King Emperour o◠Protector Nor will the place of St. Paul Rom. 13. v. 1. oblige any man in this case for though it is said that St. Paul wrote this Epistle Nero an Usurper being Emperour of Rome I deny that Nero was an Usurper for though it is true that Claudius left a Son yet since by the Roman Law a man might make whom he pleased his Son by Adoption which Son so adopted was in all respects looked upon as the true Heir of the adopting Father and Nero was so adopted by Claudius and so being elder than his own Son Germanicus would succeed before him Tacit Annal. 12. c. 25 26. And besides the Adoption being confirmed and passed into a Law by the Senate Nero was as truly Claudius's Son by the Roman Law as Britannicus himself So that an Usurper hath at first no better Right than another For Gods permitting a wicked act to be done as a Banditi or Pyrate to take a man Prisoner does not therefore confer on this Thief or Pyrate any Right over a mans person So that the instance the Author gives p. 73. will not hold That Vsurpers have such a qualified Right to govern as is in Thieves who have stolen Goods and during the time they are possessed of them have a Title in Law against all others but the true Owners and so such Vsurpers to divers intents and purposes may be obeyed For first this is no Law of Nature or Reason but onely a positive Law of England where for the avoiding of perpetual violence and strife and for the better securing of Property they have made possession even in Thieves to confer a Temporary Right against all but the true Proprietor Whereas in the state of Nature a Thief by invading another mans Goods unjustly and taking them away by violence becomes an Enemy to all Mankind and so may lawfully be killed or have what he hath so possessed taken from him by any other Secondly Neither does the parallel between the possession of Goods and that of a Kingdom hold for Goods may be possessed by the first Occupant but Government which is an Authority over the person of a man can never be seized since a man without his own act or consent can never lawfully fall into the power or possession of another as I have already proved So that I know not to what purpose this Treatise of the Authors could serve but to make all men obliged in Conscience to yield not onely a passive but an active Obedience to all the Commands of Cromwel and the
he promised a share of his Conquests which he after made good to them Thus were the Goths Vandals and our Saxon Kingdoms erected by such Generals of Armies who not being Kings at home nor able to subsist there were forced to seek their fortunes abroad which when they had obtained they could have no farther Right over the men they brought with them than what sprung from their mutual Compacts and Consents And as for Proxies as there was no need of them in the instituting of those Commonwealths we read of since taking their Original from all the People of one City or Army they might easily give their Votes themselves but where the People or Masters of Families are more numerous and dispersed than can well meet all together it is impossible upon the Authors Concession of an Escheat of the Crown that ever a new Monarch can be chosen without their making Representatives As for what he says about the silent Acceptation or tacite Consent or non-contradiction of the People no man will say that it alone confers a Right where there was none before as in the case of Conquerours or Usurpers whom perhaps People dare not speak against So likewise a tacite Consent to a Government whether Paternal or Civil justly instituted does confer a Right as I have already granted and shall now farther shew in answer to the Authors Objections The Author urges farther That if Children under years of discretion and Servants are not absolutely and in Conscience obliged to submit to the Votes of their Fathers and Masters in the choice of the Government farther than they receive benefit and advantage by it then every man is at liberty that does not like the Government Anarchy of a mixt Monarchy p. 268. to be of what Kingdom he pleases and so every petty Company hath a Right to make a Kingdom by it self and not onely every City but every Village and every Family nay and every particular man would have a liberty to chuse himself to be his own King if he pleased and he were a madman that being by Nature free would chuse any man but himself to be his Governour and so no man would be tyed to obey the Government farther than he found it for his interest and advantage and consequently would think he might lawfully resist it whenever he found it impose upon him what he did not like or was contrary to his interest In answer to which I grant first That every Possessor of a propriety in Land or Goods in any Government is not onely bound to obey but likewise to maintain it since those that first instituted the Government did likewise tye themselves and all those that should at any time possess those Lands or Goods to the maintenance of the Government which they had establisht And it is just and reasonable that those that claim under such first possessors should if they like to enjoy the Lands or Goods perform the Conditions annexed to them since men may by their own private Deeds much more by a common consent change their Estates with what Conditions they please which those that afterwards come to enjoy the same under their Title are certainly bound in Law and Conscience to make good Secondly As for all others who possessing no share in the Lands or Goods of a Kingdom yet enjoy the common benefits of the Government I conceive they are likewise bound to obey and maintain it as first instituted for the reasons before given So on the other side if they do not like the Government they live under the world is wide enough and they may remove themselves elsewhere for I cannot think that the positive Laws of any Government do oblige any man in Conscience who is not a slave by his own act or fault never to go out of the Country where he was born or can oblige him to return again if he once go out of it or can hinder him from becoming a Subject to another Prince or Common-wealth unless he have taken an Oath of Allegiance to the Prince where he was born and then he is tyed by his Oath not to act any thing contrary thereunto And if one man may do this why not more and so on to an indefinite number But if any Lawyer tells me there is a native Allegiance due by the Laws of divers Countries precedent to any Oath and that in some Countries as anciently in England and in Russia at this day there are Laws that no man shall travel out of the Kingdom without leave I suppose these are but positive Laws and as such bind onely to a submission to the punishment as to forfeiture of Estate or the like but do not bind the Conscience to observe them farther than as it is convinced the thing commanded is more than indifferent in its own nature and conduces to the good of Mankind in general or of the whole Commonwealth in particular Nor indeed was this notion of a native Allegiance known to our Saxon Ancestors since they counted no man an absolute Subject until he was sworn in the Tourn or Court of Frankpledge and was entred into a decenary or Tything And if it be objected that upon these Terms the major part of a people may go away and leave the Government without defence that is not likely nor so much as to be supposed as long as the Country continues habitable and the Government tolerable for the Subjects to live under which if it prove otherwise I see no reason that God should have ordained any Country for a common Bridewel where men should be obliged in Conscience to drudge be oppressed and ill-used all days of their lives without remedy And as for the other part of the bad consequences the Author insists will follow if this natural freedom of Mankind be allow'd for which you may consult his Anarchy of a mixt Monarchy where you will see them at large p. 268 269. Every petty Company hath a Right to make a Kingdom by it self c. I shall answer him as briefly as I can The Author discourses after that rate that one would think if it were not for his Principle of Patriarchal Power men could not subsist his being the foundation of all Civil Government and Property As for the first absurdity that will follow upon the supposal of the Peoples power That any man might be his own King I would ask the Author What if any man being weary of the world will withdraw into some Desert I think he hath then no other Governour than Adam had Nor is this unlawful or else all the ancient Hermits who in times of persecution retired into Deserts sinn'd in so doing But for the absurdities that follow the supposal of a natural state of Freedom As that every particular City or Family may chuse what Government they please if they do not like what is already established I have already granted that where a Commonwealth is established and men are come out of the state of
may be mark him with the sharp Tooth of a Beast they call an Agoutye which is the disgracefullest punishment any man can suffer so that one of the main ends of a supreme power among us viz. to decide Controversies about Property and punish Thieves are there of no use And as for other Injuries such as Maims Adultery and the like they have no certain Judges for any of these things every man that is injured in any of these cases being his own Judge and Executioner observing that Law of an Eye for an Eye and a Tooth for a Tooth onely in Adultery the man hath power to kill both his Wife and the Adulterer if taken in the act and in Murder and great Hurts or Maims where the party injured is not able to revenge himself his neer Relations will not fail to do it and if they should omit they would be looked upon as Cowards or infamous so that being naturally loving to each other and having no words of disgrace to quarrel about and other Quarrels happening but seldom and no man maintaining or taking the part of the wrong-doer or revenging the death of a Murderer or Adulterer they have lived many Ages without any common Power to keep them at peace among themselves and yet they have much fewer Crimes committed amongst them than us It is true they have Captains or Cacicks among them but they have no power but in time of War and when the Expedition is ended though they pay them reverence and respect and make them preside in all their Councils and Assemblies yet they have no Authority in time of Peace to punish or question any man So that if they lived in Islands which were either far distant from others or else were inaccessible and would make no forein Expeditions they would not need so much as this Cacick and so could live together without any other Government than that of the Fathers of Families over their Wives and Children But perhaps it will be said these are Man-eaters and barbarous People and so are not to be quoted as Examples for the rest of mankind It is true the Brasilians eat their Enemies taken in War but the Caribbes do not But as for the Observation of the other Laws of Nature I will leave it to any man to judge which part of mankind observe them best those that can live peaceably together without either Judge or Gallows or we that can scarce be at quiet though we have them But I have done this onely to shew an intelligent Reader what are the true reasons of the necessity of a Civil Power amongst us that have a full propriety in all Lands and Goods by the particular Laws of our Countries Having now I hope dispatcht the first part of my intended Task which was to prove that the Author's Hypothesis concerning the Monarchical Despotick Power of Adam over his Wife Children or Descendants is altogether vain and without just grounds either from Scripture or Reason and consequently that neither any Fathers of Families nor the Princes as representing them can from divine Grant deduce any such absolute Power or Right over their Children or Subjects I shall not trouble my self with the answering of the rest of this Treatise having gone a good way in the second Chapter and answered his most material Objections about the Peoples conferring Soveraignty so that the rest is of small consequence I shall not need to examine whether the Jews chose the King or God since that Government being purely Theocratical it concerns other Nations not at all much less shall I vindicate the Form of the Roman Commonwealth or dispute whether they were more happy under Kings or Emperours or whether Democracies or Tyrannies are best or affirm that the People can correct their King or that there e're have been any Tyrants in England since the Conquest since they are all either foreign to this purpose or else signifie nothing when his foundations are pulled up As for what he says concerning a limited or mixt Monarchy I shall reserve all that is needful to be observed upon that subject until I come to consider the Author's Treatise called The Anarchy of a limited Monarchy where all or the greatest part of what he hath here written is there repeated As for â—his third Chapter since Divinity is not my Profession and that the Texts of S. S. he there quotes have been debated by so many Expositors both in English and Latine I count needless to repeat out of others what sense they may bear though I do not approve of the Author's interpretation who would have them applied alike to all Princes whether good or bad lawful or unlawful since upon those Principles there can be no difference between a just Prince and a Tyrant or between a lawful Monarch and an Usurper Nor shall I meddle with what he says concerning the Kings Power and Prerogative though I think there are divers things which he there says that are false and of very ill consequence yet since I confine my self purely to the Laws of Nature and Reason I shall leave it to other more able Pens and better skill'd in the Laws and Customs of this Kingdom to give him such an answer as they deserve Neither would I be thought to encourage Princes to stretch their Power to the utmost limits nor yet to stir up Subjects to take Arms as soon as ever they think themselves injured since the Populace is but too apt where they are left to be their own Judges to pronounce Sentence in ther own favour Therefore quitting all these as unnecessary Disputes I shall now proceed to take a short view of the rest of those Errors and Mistakes which remain yet to be observed in his other Miscellany-Treatises first published CHAP. III. I Desire the Reader in the first place to take notice that I wholly pass by the first Treatise called The Freeholders Grand Inquest since I confess my self no Lawyer verst enough in the learning of Records to answer him in his own way I shall therefore leave him to those that have made it their business And as for great part of it concerning the Antiquity and Power of the Commons in Parliament distinct from that of the Peers or Inheritable Nobility I shall refer the Reader to Mr. Petyts learned Treatise of the Rights of the Commons of England See likewise a late Treatise intituled Jani Anglorum facies nova written by a young Gentleman of great Learning and Ingenuity where all Objections against it are in my opinion fully answered Therefore I shall begin with his Observations upon Aristotle's Politicks which I shall not dwell long upon since I look upon that as one of the confusedest Pieces he hath written Nor is it my business as that great Author said once in the case of Plato to defend Aristotle but Truth I shall likewise pass by the Preface since it contains nothing considerable but his Hypothesis of Adam's Monarchy of which there needs
place more which the Author does not quote fairly Anarchy of a limited Monarchy p. 294. where Aristotle reckoning up the several sorts of Monarchies The last says he is the Heroick which flourished in Heroical times to whom the People did * The Greek word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of their own accord willingly obey and they were paternal and †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which confutes the Author's fancy that a King according to Law makes no kind of Government legal And then reckoning up the occasions reasons of their Obedience he concludes thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And these were chosen Kings by the consent of those that were willing Lambinus renders it à voluntariis and left the Kingdom so obtained to their Children Which whole sentence is omitted by the Author because it makes against his Hypothesis and proves that the most ancient Kingdoms began by Election of the People So true is that excellent Simile of the elder Dr. Don's That Sentences of good Authors whilst they remain in their proper place like the hairs of an Horses tail concenter in one root of strength and ornament but pulled out one by one serve only to make Snares And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence where it makes for them they allow it and make use of it but where it is against them it is false or signifies nothing I shall now cursorily look over the rest of this Discourse where p. 23. though it be true what Aristotle says That the People must act as a Monarch and become as one Person before it can govern So after they are so united into one Senate or Council it is no good Argument to say That the whole Multitude does not govern where the major part onely rules because many of the Multitude that are so assembled are so far from having any part in the Government that they themselves are governed against and often contrary to their wills those people to contract it being the major part in one Vote that are perhaps of another opinion in another and so every change of business begets a new major part For though it is true every individual person does not actually agree to every Vote yet implicitly he does since at the first institution of the Government the first Compact was That the agreement of the major part should conclude the whole Assembly and whoever either then would not or now refuses to be so concluded is still in the state of Nature in respect of all the rest and is not to be lookt upon as a Member of that Commonwealth but as an Enemy and a Covenant-breaker I shall not quarrel with the Author if he hold that Monarchy does most conduce to the main ends of Government Religion towards God and Peace towards men since I agree with him that absolute Monarchy if a man could be sure the Monarch would still continue prudent and just were the best sort of Government for mankind Onely I cannot but smile to finde the Author p. 27. so much admire the high respect the great Turk pays the Mufti or chief Bishop as he calls him where by the by I never heard the Turkish Church-Government was Episcopal before yet every printed Relation can tell us that this wonderful Reverence is but a meer piece of Pageantry the Idol being of his own making and whom he again unmakes at his pleasure a sort of Ordination I suppose the Author would not allow to those of an indelible Character It is true indeed what the Author affirms p. 29. That Rome being in any desperate condition was still forced to flie to Monarchy chusing a Dictator with absolute Power Yet this was onely as a General in time of War or some great civil Commotion being very near it where it must be confest that the absolute power of one is best at such times which needed a speedy Remedy And argues no more the Romans good opinion of Monarchy than it does any mans approbation of Martial Law which though perhaps the best that can be used in War it will not therefore follow that it were to be chosen in times of Peace no more than because Brandy may do a man good when he is sick in his stomach therefore he ought to drink it constantly So that as one benefit of the Dictatorship was the help it gave them upon an Extremity so the next happiness they wisht for after that was over was that the Dictator would lay down his Office again And the People of Rome were never more tyrannized over and opprest than when these Dictators held their Power by force contrary to their Institution and longer than there was need of them as may be seen in the Examples of Sylla and Caesar But the Consuls though they had in many things especially in calling the Senate and in commanding the Army a Kingly power yet it was not absolute but was liable to be questioned by the Senate and People as any man that reads the Roman History may observe See the Oration of Valerius in Dionysius Halicarnassaeus lib. 7. upon the difference between the Senate and People I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin but besides his personal faults he was never their lawful King having ascended the Throne by the murder of his Father-in-Law Servius Tullius and kept it by the power of a standing Army without the due Election of the Senate and People which was contrary to the Institution of that Kingdom which was Elective The Author p. 32. makes a great difficulty to grant the Roman Commonwealth to be Popular It is true it was not so absolutely but was mixt with an Aristocracy in the Government of the Senate and with Regal power in the Authority of the Consuls yet it is plain the supreme Power remained in the Body of the People And though by the unequal division of the Centuries it is true the greater part of the common People were seldom admitted to vote being concluded by the major part of the first 97 Centuries who consisted of the better and richer men yet this inequality begot the Tributa Comitia which with the Author 's good leave was more absolute than the former Coâ—itia Centuriata For Dion Halicarnas lib. 9. relating â—he original of these Tributa Comitia and how they â—iffered from the other says That the latter were transâ—cted in one day without any Auspicia and could make 〈◊〉 Law at once without any precedent Senatus Consulâ—um which the Curiata Comitia could not And â—hough it is true that the power of making War and Peace and creating of Magistrates remained in the Comitia Curiata yet the judging of great and capital Crimes and of altering and making Laws remained â—n the Tributa Comitia as may be observed in the â—anishment of Coriolanus and other punishments by â—hem inflicted and all Appeals were to this Assembly Yet
granting that the force of the Government lay in â—he Curiata Comitia or better sort of Citizens yet it was still vertually in the common People who resumed â—t when they would And it was to this whole Body â—f the People that Valerius Publicola used when Conâ—ul to make the Lictors abase his Fasces and in that sufficiently acknowledged where the Soveraign Power â—esided I shall not trouble my self farther to defend the Moâ—el of the Roman Commonwealth which I look upon â—s one of the most unequal and irregular that ever were and if it had not been for the excellent Temper admirable Discipline and exact Education of â—hat People it was impossible it could ever have lasted â—o long In which when they began to grow remiss â—hrough Riches and Luxury their Commonwealth soon fell to pieces being indeed never well compacted â—t first Much less shall I take upon me to defend a Popular Government where the mixt Multitude without any Representatives consult of Affairs or make Laws Any man that will but read Thucydides and Livy will see enough of it As for the Author's Arguments against the Peopleâ— being able to agree to institute any Government aâ— all they are most of them but meer Wrangling and have been answered in the foregoing Observations and so need not be repeated I shall likewise pass by the Author's Directions for Obedience to Government in doubtful times since I have already taken notice of all that is considerable in it CHAP. IV. I Shall therefore in the next place look over his miscellany observations 1 Upon divers modern Authors As for Mr. Hob's Leviathan I shall leave them to decide the controversie as they please and refer it to the readers judgment who hath the better on 't For in many things I think neither of them are in the right only it is a hundred pitties Mr. Hobs did not consult the Author and take in his Patriarcal Hypothesis and then all his rights of exercising Soveraign Tyranny would have gone down well enough But for my part I neither like the foundation nor the building which Mr. Hobs hath set up and therefore shall here leave the Author to build and pull down as he pleases without my intermedling And less shall I take upon me to vindicate Milton since that were at once to defend downright Murder and Rebellion So that I shall turn over to his observations upon Grotius an Author of greater learning and better reputation than either of them Where I shall not trouble my self to defend the manifold distinctions P. 37. and contradictions of the old Civil Lawyers about the Law of Nature and the Law of Nations or whether the natural and Moral law be all one it is sufficient if Grotius's didifinition of the law of Nature be true Nor does it signifie any thing whether the word Law of nature be found in Scripture Yet I think Thomas Aquinas may well enough be defended that there is such a thing too proved from 11. Romans v. 14 15. For though he doth not say expresly that nature is a Law unto them but they are a law unto themselves yet certainly Saint Pauls meaning is to the same For if the Gentiles by nature did the things contained in the law and so were a law unto themselves I know not what else he can mean by their doing by nature the things contained in the law but their living according to the Laws of nature or right reason which all rational men are sensible of as soon as they come of an age able to exert this faculty and so becomes by nature a Law unto themselves neither can this be custom since Saint Paul says they do so by nature c. the things contained in the Law Neither do I see any Reason why Grotius is to be blamed for not taking his Hypothesis concerning the Original of Mankind of Dominion and Property out of Genesis since writing of the rights of Peace and War according to the laws of nature and the general consent of civilised Nations and not according to any revealed Will or Law of God he was not bound nay it was contrary to his purpose to make use of Scripture farther than to confirm what could be made out from natural reason alone for to have done otherwise had been to have written a treatise of cases of Conscience in Divinity and not of right and wrong by the laws of nature So that though he sometimes make use of Texts of Scripture yet it is either to strengthen those or else to answer some objections that may be drawn from thence against his conclusions And therefore he was not obliged to take notice whether God gave a begining to Mankind from one man or more at once since it might if he had pleased have been either way Nor yet did he dream of Adams Monarchy over the whole Creation before he had any Subjects to command nor of his being sole Lord Proprietor and first occupant of all the earth and of all the Creatures in it when neither he nor his Children ever knew nor made any use of the 1000. parts of them these were Notions too fine spun for a man of his solid judgment ever to light on so therefore we must be beholding to our Author and some English Divines for this admirable discovery Yet as I doubt not but if that great man were alive he could well enough defend himself by that great reason and learning he was Master of against what ever this Author or some other lesser Scriblers could reasonably object against a work of that nature yet I doubt not but most of those things the Author observes as errors may be well enough defended by one of far meaner parts and less learning than Grotius himself so that I am not convinced that he either forgets or contradicts himself as our Author will needs have him when he refers alieni abstinentia or abstaining from that which belongs to another P. 59. to consist with a sociable community of all things because says the Author where there is Community there can be neither meum nor tuum nor yet alienum and if there be no alienum there can be no alieni abstinentia and so likewise by the Law of nature men ought to stand to bargains but if all things were common by nature how could there be any bargains In answer to which it will appear that a Propriety of occupancy or the personal possession of things and applying it to the use of one or more men while they have need of it may very well consist with community and is absolutely necessary to the preservation of Mankind As for Example a Theater is in Common to all that have a right of coming thither but no man can say that one place in it is more his than anothers untill he is seated in it and then that place is so much his that whilest the Play lasts no man can without injury put him out of it so likewise supposing
change their voluntary subjection into natural freedom since it is as lawful for men to alter their wills as their judgments To which it may be â—nswered that the same reason that made men inâ—itute civil Government and Property at first the â—me likewise obliges them to maintain it being once â—…stituted in the state in which they find it For since â—…e Common good of Mankind is the highest end a â—nan can propose to himself and the common good â—f the City or Commonwealth where he lives the â—reatest subordinate end next to that and that both Government and Property were at first introduced â—y common consent for the good of those humane â—ocieties that first agreed to it every succeeding member of that Commonwealth or civil society â—hough born never so many ages after is as much obâ—iged to the observation thereof as they that first inâ—tituted it and though some men either by their own fault and the carelesness or prodigality of their Ancestors may perhaps be now under such Circumstances by reason of their poverty as that civil Government may appear inconvenient for them and the Property now establisht contrary to their interests as having perhaps little share either in lands or goods he is not therefore at liberty to resist the Government and to change the course of this Property already establisht and this is by the laws of nature without any Divine revelation since no man can disturb the â—general Peace of humane society for his own private â—advantage or security without transgressing the natuâ—al laws of God by bringing all things into as far as â—in him lies out of the setled course they now are in into a state of Anarchy and confusion which having once â—entred into War this violent usurper of another mans rights can be no more sure to keep what he hath unjustly gotten than he was from whom he took it and consequently can never be in security until he have again entred into the same compacts for establishing both Government and Propriety which his Ancestors did at first So that there can rationally no peace nor setled security be expected as long as he detains that which he at first took from another by force As for the other difficulty he makes P. 70. How all the men in the world should agree in one mind and at one instant of time to change the natural Community of all things into a private Domminion 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 rohbed him of his right to the common use of all things which objection likewise is thus farther urged by another Author That the nature of things in common is such that there is not the least Atome in them but every member of the Community hath a share in it so that no man could appropriate or enclose any thing to himself without a wrong to the whole or if all the rest had agreed to it that one man who refused this enclosure might have broken open all theirs Which had been no difficulty at all if the Author had but considered what kind of right God had bestowed upon Mankind at first which was not an absolute positive or unalterable communion of every man pro indiviso every blade of grass in the world for such as a Fiction of our Laws suppose among Tenants in common for then the Products of the earth could have contributed nothing to the ends for which they were designed by God viz. the preservation and Propagation of the species of Mankind since no man could have eat any thing which another might not have pulled out of his mouth pretending he could not eat without his leave because he had a share in it and so upon this principle no man now being able to deâ—ive a title from Adam could at this day possess any thing suppose in America by a right of possession or occupancy which another might not without any wrong or injustice take from him nor was it a positive or unalterable community of things for then if it had been so ordained it had been part of the law of nature and no Property could ever have been introduced though all Mankind had consented to it Therefore it follows that God bestowed no more upon any particular man than what would serve for the preservation of himself and propagation of his species and only in that manner as might prove subservient to that design which being supposed it is evident that before compacts there might be a negative though not a positive communion of things that is all things being exposed to all men as meat is at an ordinary they did not belong to this person more than to another for seeing things are not of any use or beneâ—ice unless applyed to mens particular necessities and that this grant of those things necessary for life would prove altogether in vain were it lawful for others to take from us those things which we have already seised on therefore man being a rational creature and being able to foresee future inconveniences or to draw a consequence from that which he hath found by experience the first natural law must be the erecting of this Principle of Reason Not to do to another that which I would not have done to my self in the same Circumstances Therefore if it be rational for me to desire my own preservation and to enjoy the means to it it is likewise rational to permit another man to do the like since he hath as much right to his being as I have to my own so that if a man have already seised any of those common things for his own use though he does not actually then use them those things cannot be taken from him without injury and if any man will call this first principle of natural Justice a true agreement of Mankind I shall not gainsay it since such an agreement is but a rational assent of every particular mans understanding that the abstaining from the doing such a things is every private mans interest and likewise for the good of humane society Thus among the Indians few or none steal from each other though they have no stone walls nor Locks to secure their things in because they know Theft would bring in perpetual War and confusion among them and therefore it is all their interests to joyn against Thest not only as a breaker of the laws of nature but an infringer of this tacite agreement But that this Principle belongs to man considered purely as a rational creature that is able to draw true conclusions from true Premises appears from the condition of Children Fools and Mad-folks which though they have in many things an imperfect
reason and a sense oâ— their present appetites or desires yet not being able to make any judgment of the reasons or consequences of actions are not to be reckoned in the rank of rational creatures so that it is evident that God intended occupancy or possession should concern a right among men to things that were before in common 〈◊〉 yet so that this occupancy does not give a man a right to more than is really necessary and which he can apply to the necessities of himself and Family 〈◊〉 Therefore this natural Propriety in things much less that which is introduced by Law or common consent cannot exclude that natural right every man hath to his own preservation and the means thereof so that no man can be obliged in Conscience or commits a sin if in a case of extream necessity even ready to perish he makes use of some of the superfluous necessaries of life which another man may have laid by for the future uses of himself and Family and that were without his consent if it can by no other means be obtained 〈◊〉 that the things the necessitous person takes are not â—…mediately necessary for the preservation of the lives of the Possessors and his Family for in this case this necessity is to be preferred before all others therefore this right of self preservation is still supposed in all humane compacts or laws about the division and distribution of things so that when our own and all other laws are so favourable that they do not esteem those guilty of theft that take only victuals in case of extream necessity though without the owner's consent and though the person that takes them be so poor that he cannot make satisfaction for what he hath so taken it being sufficient that he is supposed willing to do it if ever he comes to be able So likewise since the Earth was first Peopled by distinct Families or companies of men all of whom had a right to the necessities of life which are indeed no other than the products of the Earth these coming to inhabit such and such tracts of ground it was in their power either to live in common upon such things as the earth produced of it self or else to divide to every man his share which another should have no right in Thus the Indians in America as I said before have all the Country in common among them except the sites of their houses and Gardens but our Planters rather chuse to allot every man his share it being that which suits best with that way of life they have been used to in their own Country and as they think will most conduce to their common Peace and advantage not but that they might if they had pleased have occupied such a tract of land which those Indians made no use of in common with them there being no more Obligation upon them to come to a more distinct division than there does upon the Indians themselves so on the other side after these Planters have divided thiâ—â—occupied land into as many shares as will serve tâ—…â—ecessities of each mans Family It is an injury not only in any of those that agreed to this division but in any Indian who is at peace with them that is hath never declared any war to break up this enclosure or take away any thing that is there planted without the consent of the owner For since the owner hath possessed himself of this land and bestowed his Labour and Industry upon it and that the other hath no right to any more of the products of the earth than that may serve for the subsistance of himself and his Family and that there is more ground lost where he may procure himself the like necessaries if he please he hath no right to take away this land from the owner without his consent since he hath the same right to this Field as the other hath to his Cottage or Garden And if such an occupancy will not create a Propriety certainly all the Nations in the world are in an ill condition For since none of them can now convey their Titles to the Country they possess from any one of Noahs Sons if occupancy or possession be no good Title then the rest of Mankind may upon the Authors own Principles come in for a share wherever they please for certainly all the land that then remained undiscovered which could not be less than two parts of three and consequently undivided amongst Noah's Sons must afterwards fall either to the first occupiers or all the rest of Mankind must still have a right in it So there is no need either of supposing the original of Property to have proceeded from Noah and his Sons or else from the common consent of all mankind at once since no man hath a natural right to any more things than he could make use of nor any right at all to those he had no need of nor had actualy seised for his own use This being I hope thus far cleared I will not take upon me to maintain what Grotius asserts that after Property was once introduced it was against the law of nature to use community since neither community nor Property are by the absolute law of nature God having bestowed the fruits of the Earth on the Sons of Men for their uses but as for manner of using them whether in Propriety or in common he left it to the discretions of those several parcels of Mankind who agreed to live together in civil society or common-wealth as it might either way conduce to their particular way of living or common safety and interest For as where a Country is thinly peopled and produces all the necessaries for life only by the labour of the Inhabitants in hunting fishing and the like imployments of that life which we call barbarous because it does not exercise it self in day Labour and that the People do neither need nor desire those superfluous things that others doe there is no need of enclosing or appropriating any more Land than they really make use of more being but a burthen to them so likewise where the People are more than the Country can well maintain from its own Products there will presently arise a necessity of division of lands in the first place and of Trade abroad in the next or else the People must either discharge themselves into their neighbours territories or live by robbing or playing the Pyrates upon their neighbours as appears by Tartars Arabs and Algerines and consequently when a Country is once divided and a great many are without any share of land there must bâ— laws made to maintain this Propriety and punishments ordained for them that disturb it and this iâ— the true reason why there is an absolute necessity for a division of lands in Holland but not so in Surinam The nature and original of Propriety being thus layd open the other small Objections against this Primitive Community which some men draw out of
Scripture will easily be answered as first how Adam's Children could have any right to any of the things of the world since that the world and all things in it were given by God to Adam and Eve before their Children were born and so being born after this grant they could have no farther interest in any thing than their Parents pleased to allow them to whom all things were granted before As for this particular grant or Dominion of Adam I have all ready shewn its weakness and that the Grant was not Personal to Adam and Eve alone but to all Mankind though made to them as the Protoplasts or representatives thereof and as for the right of occupancy I have already layd down that no man in the state of nature hath a right to more land or territory than he can well manure for the necessities of himself and Family that is can reduce into actual possession otherwise a man that first sets his foot on an uninhabited Island would have an absolute right to the whole though it were a Thousand miles long or to all the Territory he could discover with his Eyes so that no man could make use of one foot of land in that Island but by his permission But another Objection is That even in the state of Innocency there neither ought nor could have been such a Community because since all order is agreeable to right reason and the best order of possessing the things which were granted by God to Mankind was only proper to that â—ate in which the abstaining from that which was anoâ—ers might best be practiced Since that Law must be â—rit upon mens minds even before the fall at least before â—e law given thou shalt not steal by which there is estaâ—lisht a certain and distinct Propriety to every man in the â—ings he possesses In answer to which it may be reâ—lyed that no man can tell what kind of life men â—ould have led had they continued in the state of â—nnocency or whether Propriety or Community â—ould have suited best with their way of life though rather encline to the latter since there had been â—o need of enclosure the Earth producing all things â—eedfull for the life of man without his labours â—nd going naked could need no more things than what were meerly necessary but after the fall 〈◊〉 untill which they needed no laws as being uncaâ—able of sinning these Commandments thou shalt â—ot steal nor covet thy neighbours goods did take â—lace even during this Communion of things For â—he same law of Nature or Reason that now forbids â—en to covet or take from each other any of those â—hings which he enjoys by the laws of the Common-wealth where he lives does before the institution â—f the laws about an absolute Property likewise forâ—id the taking away from any man those things which were necessary for the subsistance of himself â—r Family and was either actually possessed â—f as being in his hands or lying in his preâ—ence or to such things as he had perhaps laid by for â—uture occasions nor is there any more obligaâ—ion upon Mankind from these Commandments â—hou shalt not steal thou shalt not covet to institute â—n absolute distinct Property in all things than â—here is that we should still have slaves among us because the Jews seldom using any other servants God commands them that they should not covet such 〈◊〉 slave any more than his Ox or his Al 's For the Law was only intended to take place as far as the Subject was capable Having now answered all the considerable Arguments that can be made against the possibility of a primitive Communion I hope this great difficulty which hath puzled some Divines which is prior in nature Propriety or civil Government is now cleared since it is apparent Propriety understood either as the application of natural things to the uses of particular Men or else as the general agreement of many men in the division of a Teritory or Kingdom must be before Government one main end of which is to maintain the Dominion or Property before agreed on Having run over all that is most considerable in these observations both concerning the natural Dominion of Adam and consequently shewn the original of Dominion and Property I shall concern my self very little in the difference between the Author and Grotius concerning the Power of the people to resist and punish Kings in which I shall say no more than that a Prince who is subject to be so punished is not really a King in the sense that the word King ought to be understood since a King is properly one that hath no Superior and consequently is not capable of Punishment all punishments as I said before being properly the effects of a Superior over an Inferior so that the Kings of Sparta were no more than Generals of the Army and if the Duke of Venice should have the title of King given him to morrow he would still be but the Head of the Senate since the one was liable to be put to death by the Ephori as the other is still by the Counsel of Ten. But if there are any such desperate inconveniences as the Author mentions that attend this Doctrine of natural freedom and Community of all things it is more than I can find or I believe any man else that will consider the nature of mankind and when that is done if things are contraâ—ry to his notions of them it is not his declaiming will alter mens Judgements much less the nature of the things themselves As for Grotius's three ways whereby Supreme Power may be had Obs P. 63. as 1. By full right of Propriety 2. By an usufructuary and 3. By a temporary right I think in most things Grotius may very well be defended though not in all For whereas he acknowledges two ways whereby a King may obtain a full right of Propriety in a Kingdom That is either by a just war or by donation from the People I do not see the Author finds fault with him upon any just grounds because he hath not shewn how a War can be just without a precedent Title in the Conqueror as if no war could be just nor no Conquest made without such a precedent Title For all men know that a war may commence upon other scores than old Titles and in such wars the Prince or State that hath the right of their side may prosecute this war either untill they gain this first demand or else absolutely subdue their Adversary So that he mistakes â—n saying that Grotius will have a Title only to make the War just so that all he says upon this false supposition signifies just nothing but as for what he says about a Conqueror's having no new Title but being remitted to his old one is true Nor do I see any inconvenience from it For if he were an absolue Monarch before he were put out he cannot Attain more than he had before so if he or â—is
of the Laws and Customs of their Country as also to be cheif General in War but to the people were reserved these three Priviledges to create Magistrates to ordain Laws and to decree Peace and War the King referring it to them So that the Authority of the Senate did joyn in these things though this custom was changed for now the Senate does not confirm the decrees of the people but the people those of the Senate But he added both dignity and power to the Senate that they should judg those things which the King referred to them by Major part of the votes And this he borrowed from the Lacedemonian Commonwealth for the Lacedemonian Kings were not at their own liberty to do whatever they pleased but the Senate had power in matter appertaining to the Common-wealth But because these examples may seem too stale or remote Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it and see if there were so much as one Kingdom among them that was not limited As for the Kingdoms of the Goths and Vandals erected in Italy Africk and Spain the Author confesses they were limited or rather mixt since their Kings were deposed by the people whenever they displeased them So likewise for the Successors of those Gothick Princes in Castile Portugal Arragon and Navarre and the other Kingdoms of Spain He that will read the histories of those Kingdoms will find them to have been all limited or rather mixt and to have had Assemblies of the Estates Mariana Lib. XVIII without whose consent those Kings could antiently neither make Laws nor raise mony upon their Subjects and as for Arragon in particular they had a Popular Magistrate called the cheif Justiciary who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power and were contrary to the Laws though indeed now since the times of Ferdinand and Isabella the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges and the great addition of Territories have presumed to infringe many of their Just rights and Priviledges And as for the Kingdoms erected by Francks in Germany and Gaule which we now call German Empire and Kingdom of France As for the former any one that willread the ancient French and German Historians will find that the Kings of Germany could not do any thing of Moment not so much as declare a Successor without the consent of their Great Counsell of Nobility and Clergy and as to the latter as absolute as it seems at present it was a few ages past almost as much limited if not more than its Neighbours For the Kings of France could not anciently make Laws raise any publick War wherein the Nobility and people were bound to assist him or Levy Taxes upon their Subjects without the consent of the Estates but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them Phil. Com. Livre VI. Cap. 7. to which Mezeray in his History tells us France ows the loss of its Liberties and the change of its laws In whose time they gave their King Charles VII a power to raise mony without them which trick when once found out appeared so sweet to his Successors that they would never fully part with it again and Lewis the XI by weakening his Nobility and People by constant Taxations and maintaining Factions among them bragged that he had metre les Roys du France Com. Liv. V. Chap. XVIII brought the Kings of France hors du Page or out of worship Whereas the Author last mentioned remarks that he might have said with more truth les mettredu sense hors et de la raison and yet we find in the beginning of the Reign of Charles VIII the Assembly of the Estates gave that King the sum of two Millions and an half of Francks and promised him after two years they would supply him again It seems Comines in the same place did not look upon this as a thing quite gone and out of Fashion since he then esteemed this as the only just and Legal way of raising mony in that Kingdom as appears by these words immediately after Is it toward such Objects as these meaning the Nobility and People that the King is to insist upon his Prerogative and take at his pleasure what they are ready to give would it not be more just both towards God and the World to raise mony this way than by Violence and Force nor is there any Prince who can raise mony any other way unless by Violence and Force and contrary to the Laws So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time that there were some but those neither considerable for quality or vertue who said that it was a diminution to the Kings Authority to talk of assembling the Estates and no less than Treason against him But it is they themselves who commit that crime against God the King and their Country and those who use these expressions are such as are in Authority without desert unfit for any thing but flattery whispering trifles and stories into the ears of their Masters which makes them apprehensive of these Assemblies lest they should take cognizance of them and their manners But I suppose it was for such honest expressions as these that Katherine de Midices Queen of France said that Comines had made as many Hereticks in Politicks as Calvin had done in Religion that is because he open'd Mens Eyes and made them understand a little of that they call King-craft But however in some Provinces of France as in Languedoc and Provence though the King is never denyed whatever he please to demand yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the. Assembly of Estates consisting of the Nobility Clergy and Burgesses of great Towns and Cities which however is some ease to them not to have their mony taken by Edict So Hungary which was erected by the Huns a stirp of the European Scythians by which you may judge the antient form of Government was much the same as that of the Germanes All Histories grant that Kingdom to have been limited and to be of the same form with that of the other Northern Nations nay which is more to have had a Palatine who could hinder the King from ordaining any thing contrary to the Laws and as for Poland the Author cannot deny but it is limited in many things but as he only takes notice of those things in which the King hath power so he omits most of those in which he hath none as in raising of mony or making laws without the consent of the Diet. So
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by 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 a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
comitum omnium Sapientum Seniorum Populorum totius Regni And whoever will but examine the said Collection of Sr. Henry Spelman will find almost all the Ecclesiastical Constitutions confirmed if not made in the Wittena Gemote the Great Synode or Council So that what this Author says of the difference of the Laws and Customs of the several Kingdoms during the Heptarchy makes nothing against us as long as we can prove that in the main the Government of them all was alike in the three great Liberties of the Subjects viz. Trial by a Mans equals and absolute Propriety in Lands and Goods which the Kings could not justly take from them and a Right to joyne in the making of all Laws and raising Publick Taxes or Contributions for War So that without doubt these Wittena Gemotes or great Councils were Ordained for some Nobler and Higher purpose then either to give the King advice what Wars to make or what Laws to make or barely to Remonstrate their grievances as this and some other Modern Authors would have it for what King would call so great a Multitude those Antient Parliaments consisted of to be his Councellors Or would call together the whole Body of a Nation only to be made acquainted with their grievances which he might have known with greater ease to himself and less charge to the Subjects by having them found by the Grand Inquest in the County-Court And so to have been presented to him by the Earl or Alderman of each particular County whereas we find these great Councils imploy'd in businesses of a higher Nature such as the confirmation of the Kings Charters the Proposing of Laws the Election of Archbishops other great Officers So that the Higher any Man will look back the more large uncontroulable he will find the Power of this great Assembly Since before the Conquest and afterwards too we find them to have often Elected Kings when the Children of their last King were either Minors or supposed unfit to Govern So that whoever will take the pains to consult our Ancient Saxon and English Historians will find that there was never Anciently any Fundamental or unalterable Law of Succession nor was it fixed for any two Discents in a right Line from Father to Son without interruption until Henry the Third and then it lasted so but Four Generations reckoning him for the first And as for these particular Laws or Customs the Author mentions whether King Edgar or Alfred first Collected them as were also Corrected and Confirmed by both the Edwards to wit the Elder and the Confessor they still owed their Authority to the King Vi. Lambert de priscis Anglorum Legibus p. 1â—9 and his Barons and his People as Malmesbury before asserts As for the Danish Laws they never prevail'd but in those Countrys which the Danes intirely Conquered which consisted mostly of them as Norfolk Suffolk and Cambridge-shire but as for the rest of England it was governed by its own Laws and enjoyed its Ancient Customs in the Reign of King Knute and his Successors of the Danish Race See the Charter of K. Knute quoted by Mr. Peâ—yt in his said Treatise pag. 146. But to come to the Authors next Reason why there can be no Fundamental Laws in this Kingdom viz. Because 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 always ought to be certain This is almost the same Argument as the Papists make use of against the Scriptures being a Rule of Faith only their Reason is that the Scriptures are obscure because they are Written and need an Expositor viz. The Church or Tradition but with Authors it is contrary the Law is doubtful because unwritten whereas all that understand any thing of the Nature of the Laws of England know very well that the Common Law whose Authority depends not on any set Form of Words but the Sence and Reason of the Law is much less doubtful and makes fewer Disputes then the Statute-Law but though it be granted that many things in the Common Law are doubtful and difficult yet in the Main and Fundamental parts of it but just now recited it is plain enough As the Scriptures though doubtful or obscure in some things yet are plain and certain in all Points necessary for Salvation and why it is harder for an ordinary Countrey Fellow in a Civil Government to know when he is Condemned to be Hang'd without trial or to have his Goods or Money taken from him by a Fellow in a Red-coat without any Law then for him to judg in the State of Nature when another Man lies with his Wife or goes about to Rob or Murther him I know not His last Reason against making Common Law only to be the Foundation when Magna Charta is excluded from being according to Mr. H. a Fundamental Law and also all ' other Statutes from being limitations to Monarchy since the Fundamental Laws only are to be judg and these are Statute Laws or Superstructures This is also meer Sophistry since no Man in Metaphors or Similitudes ever expects an absolute Truth but what if the great part of the Magna Charta were Fundamental Laws before either King Stephen or King John granted it and that they did but restore what some of their Predecessors had before by oppression taken from their Subjects since there is little or none of it but was part of King Edward's Laws and consequently the Ancient Saxon Law before the Conquest and the like may be said of all other Constitutions in limited Monarchies as suppose in Denmark the Crown which was before Elective is now by the Concession of the Estates become Successive I believe no Men of this Authors Opinion will deny that this is not now a Fundamental Law in that Kindom and can never be altered without the Consent of the King and the Estates and yet this is a Law that follows after the Government was Instituted nor can I see any Reason why this Rule may not hold as well on the Peoples side as the Kings Why Rules of Play may not be made as well after the Gamesters are in at Play as when they first began and may not be as well called Fundamental Laws of the Game since if they are not observed it may be lawful for any of the Gamesters to fling up his Cards and play no more though he be at play with the Authors Natural Monarch his own Father But our Author will not leave off so but must give us one stabing Paragraph more against Fundamental Laws which is thus ' Truely the Conscience of all Mankind is a pretty large Tribunal for these Fundamental Laws to pronounce Sentence in It is very much that Laws which in their own Nature are dumb and always need a Judg to pronounce Sentence should now be able to speak and pronounce Sentence themselves Such a Sentence surely must
pleases because I have obliged my self to it by compact and I am obliged to follow this Mans will because he can enjoyn me thus by his supreme Authority But supreme and absolute are not one and the same thing for that denotes the absense of a Superiour or an Equal in the same order or degree but this a faculty of exerciseing any right by a Man 's own Judgment and Will but what if there be added a Commissary clause that if he shall do otherwise he shall forfeit his Kingdom as the Arogonians of Old after the King had sworn to their Priviledges did promise him Obedience in this manner Vid Hotomani Frarcogallia C. 12. We who are of as great Power as thou do Create thee our King and Lord on this condition that thou observe our Laws and Priviledges if otherwise not Here it is certain that an absolute King cannot be He to whom the Kingdom is thus committed under a Commissary Clause or Condition but that this King may have for all this a regal Power though limited I see no reason to the contrary for although we grant a Temporary Authority cannot be acknowledged for Supreme because it depends upon a potestative condition and which can never be in the Princes power Yet a King of this sort above-mention'd is not therefore subject to the power of the People with whom the cognizance is whether he keep his Oath or not for besides that such a Commissary Clause is wont to comprehend only such plain things which are evident to any Mans sences and so are not liable to dispute So that this power of taking cognizance does not at all suppose any Jurisdiction by which the Actions of the King as a Subject may be judged but is nothing else than a bare Declaration whereby any Man takes notice that his manifest right is violated by another See Grotius Lib. 1. Cap. 3. § 16. And Baecler upon him who are both of the same Opinion Grotius indeed in the same place speaks more obscurely when he says That the Obligation arising from the promises of Kings does either fall upon the exercise of the act or also directly upon the very power of it if he act contrary to promises of the former sort the act may be called unjust and yet be valid if against those of the latter it is also void as if he should have said Sometimes a King promises not to use part of his Supreme Authority but after acertain manner and sometimes he plainly renounces some part thereof concerning which there are two things to be observed first that also some acts may be void which are performed contrary to an Obligation of the former sorts as for example if a King swear not to impose any Taxes without the consent of the Estates I suppose that such Taxes which the King shall Levy by his own will alone to bevoid Secondly That in the latter form the parts of the supreme power are divided But that the Nature of limited Kingdoms may more thoroughly be understood it is to be observed that the affairs which occur in Governning a Common-wealth are of two kinds for of some of them it may be agreed beforehand because whenever they happen they are still but of the same Nature but of others a certain Judgment cannot be made but at the time present whether they are beneficial to the Publick or not for that those circumstances which accompany them cannot be forseen Yet concerning both that People may provide that he to whom they have commited this limited Kingdom should not depart from the Common good in the former whilst it prescribes perpetual Laws or Conditions which the King should be obliged to observe in the latter whilst he is obliged to consult the assembly of his People or Nobility Thus the People being satisfied of the truth of their Religion and what sort of Ecclesiastical Government or Ceremonies do best suit their Genius so it is in Sweden may condition with the King upon his Inauguration that he shall not change any thing in Religious matters by his sole Authority So every Body being sensible how often Justice would be injured if Sentence should always be given by the sole Judgment of the Prince ex aequo hono without any written or known Laws and that Passion VI. Tacit An. L. 13. 4. 2. Interest or unskilfulness would have too great a sway for avoiding this inconvenience the people may oblige their King that either he shall compose a Body of just Laws or observe those that are already extant and also that Judgment be given according to those Laws in certain Courts or Colledges of Justice and that none but the most weighty Causes should come before the King by way of Appeal This is likewise the Law of Sweden So likewise since it is well known how easily Riches obtained by the Labour of others may be squandered away by Luxury or Ambition therefore the Subjects Goods should not lie at their Princes mercy to sustain their Lusts Some Nations have wisely assigned a certain Revenue to their Prince such as they supposed necessary for the constant Charges of the Common-wealth but if greater expences were necessary they would have those referred to the Assembly of Estates And since also some Kings are more desirous than they ought to be of Military Glory and running themselves into unnecessary Wars may put themselves and their Kingdoms in hazard therefore some of them have been so cautious that in the conferring the regal Dignity they have imposed this necessity upon their Kings that if they would make offensive Wars upon their Neighbours they should first advise with their great Council and so likewise it might be ordained concerning other matters which the People judged necessary for the Common-wealth lest that if an absolute power of ordering those things were left to the Prince the common good of the People would perhaps be less considered And since the people would not leave to this limited King an absolute power in those Acts which are thus excepted but that an Assembly either of the whole people or of those that represent them divided into their several Orders it is further to be observed that the power of this Council or Assembly is not alike every where For in some places the King himself though every where absolute may have appointed a Council or Senate without whose approbation he will not have his decrees to be valid Which Senate without doubt will only have the Authority of Councellors and though they may question the Kings Grants or Decrees and reject those which they judg inconvenient for the Common-wealth yet they do not this by any inherent Right but by a power granted them from the King himself Who would this way prevent his decreeing any thing through hast imprudence or the perswasion of Flatterers that might prove hurtful to his State to which may be referred what Plutarch mentions in his Apothegms ' That the Aegyptian Kings