Observations concerning the original and various forms of government as described, viz. 1st. Upon Aristotles politiques. 2d. Mr. Hobbs's Laviathan. 3d. Mr. Milton against Salmatius. 4th. Hugo Grotius De jure bello. 5th. Mr. Hunton's Treatise of monarchy, or the nature of a limited or mixed monarchy
Filmer, Robert, Sir, d. 1653.
Page  [unnumbered] Page  [unnumbered]

OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT, As Described, Viz.

  • 1st. Upon Aristotles Politiques.
  • 2d. Mr. Hobbs's Laviathan.
  • 3d. Mr. Milton against Salmatius.
  • 4th. Hugo Grotius, de Jure Bello.
  • 5th. Mr. Hunton's Treatise of Monarchy, or the Nature of a limited or mixed Mon∣archy.

By the Learned Sir R. Filmer, Barronet.

To which is added the Power of Kings.

With directions for Obedience to Government in Dangerous and Doubtful Times.

LONDON: Printed for R. R. C. and are to be Sold by Thomas Axe, at the Blew-Ball in Duc-Lane. 1696.

Page  [unnumbered]

[illustration]
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX.
Bona agere & mala pati Regium est

Page. 1.

Page  [unnumbered] 〈1 page duplicate〉 Page  [unnumbered] Page  [unnumbered]

The Author's PREFACE.

THere is a general Belief, that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France: therefore, in order to prepare the Ʋnder∣standing in the Recerche we have in hand, it is proper to give a brief Accompt of the mode of France in those Assemblies: Scotland and Ireland being also under the Dominion of the King of England; a Touch of the manner of their Parlia∣ments shall be by way of Preface.

1. In France, the Kings Writ goeth to the Bailiffs, Seneschals, or Stewards of Liberties, who issue out Warrants to all Page  [unnumbered] such as have Fees and Lands within their Liberties, and to all Towns, requiring all such as have any Complaints, to meet in the Principal City, there to choose two or three Delegates, in the name of that Province, to be present at the Gene∣ral Assembly.

At the day appointed, they meet at the Principal City of the Bailiwick. The King's Writ is read, and every man called by name, and sworn to choose ho∣nest men, for the good of the King and Commonwealth, to be present at the Ge∣neral Assembly, as Delegates, faithfully to deliver their Grievances, and Demands of the Province. Then they choose their Delegates, and swear them. Next, they consult what is necessary to be complained of, or what is to be desired of the King: and of these things they make a Catalogue or Index. And because every man should freely propound his Complaint or De∣mands, there is a Chest placed in the Page  [unnumbered] Town-Hall, into which every man may cast his Writing. After the Catalogue is made and Signed, it is delivered to the Delegates to carry to the General As∣sembly.

All the Bailiwicks are divided into twelve Classes. To avoid confusion, and to the end there may not be too great De∣lay in the Assembly, by the Gathering of all the Votes, every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis, then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom. This being the order of the Proceedings of the third Estate; the like order is observed by the Clergy and Nobility. When the three Books for the three Estates are perfected, then they pre∣sent them to the King by their Presidents. First, the President for the Clergy begins his Oration on his knees, and the King Page  [unnumbered] commanding, he stands up bare-headed, and proceeds. And so the next President for the Nobility doth the like. But the President for the Commons begins and ends his Oration on his knees. Whilst the President for the Clergy speaks, the rest of that Order rise up, and stand bare, till they are bid by the King to sit down, and be covered, and so the like for the Nobi∣lity. But whilst the President of the Com∣mons speaks, the rest are neither bidden to sit, or be covered. Thus the Grievances and Demands being delivered, and left to the King and His Council, the Gene∣ral Assembly of the three Estates endeth, Atque ita totus actus concluditur.

Thus it appears, the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom, to the consideration of the King: Not much unlike the antient Ʋsage of this Kingdom for a long time, when all Laws were nothing else but the Page  [unnumbered] King's Answers to the Petitions presented to Him in Parliament, as is apparent by very many Statutes, Parliament-Rolls, and the Confession of Sir Edw. Coke.

2. In Scotland, about twenty days be∣fore the Parliament begins, Proclamati∣on is made throughout the Kingdom, to de∣liver in to the King's Clerk, or Master of the Rolls, all Bills to be exhibited that Sessions, before a certain day: then are they brought to the King, and perused by Him: and only such as he allows are put into the Chancellour's hand, to be pro∣pounded in Parliament, and none others: And if any man in Parliament speak of another matter than is allowed by the King, the Chancellor tells him, there is no such Bill allowed by the King. When they have passed them for Laws, they are presented to the King, who, with his Sce∣pter put into His hand by the Chancellor, ratifies them, and if there be any thing the King dislikes, they raze it out before.

Page  [unnumbered]3. In Ireland, the Parliament, as ap∣pears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner: No Parliament is to be holden but at such Season as the King's Lieute∣nant and Council there, do first certifie the King, under the Great Seal of that Land, the Causes and Considerations, and all such Acts as they think fit should pass in the said Parliament. And such Cau∣ses and Considerations, and Acts affirmed by the King and his Council to be good and expedient for that Land: And His Licence thereupon as well in affirmation of the said Causes and Acts, as to summon the Parliament under His Great Seal of England had and obtained. That done, a Parliament to be had and holden after the Form and Effect afore-rehearsed, and if any Parliament be holden in that Land contrary to the Form and Provision afore∣said, it is deemed void, and of none. Ef∣fect in Law. It is provided, that all such Page  [unnumbered] Bills as shall be offered to the Parliament there; shall be first transmitted hither under the Great Seal of that Kingdom, and having received Allowance and Ap∣probation here, shall be put under the Great Seal of this Kingdom, and so re∣turned thither to be preferred to the Par∣liament. By a Statute of 3 and 4 of Philip and Mary, for the expounding of Poynings Act, it is ordered, for the King's Passing of the said Acts in such Form and Tenor as they should be sent in∣to England, or else for the Change of them, or any part of them.

After this shorter Narrative of the Ʋ∣sage of Parliaments in our Neighbour and Fellow Kingdoms, it is time the in∣quisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader.

Rob. Filmer.

Page  [unnumbered] Page  [unnumbered]

A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER, Knight.

I.

The Free-holders Grand Inquest, touch∣ing our Soveraign Lord the King, and his Parliament: To which are added Observations upon Forms of Government: Together with Dire∣ctions for Obedience to Governors in Dangerous and Doubtful Times.

II.

Reflections concerning the Original Page  [unnumbered] of Government, upon 1. Aristotle's Politiques. 2. Mr. Hobs's Leviathan. 3. Mr. Milton against Salmasius. 4. H. Grotius De Jure Belli. 5. Mr. Hun∣ton's Treatise of Monarchy, or the Anarchy of a limited or mixed Monarchy.

III.

A Succinct Examination of the Fun∣damentals of Monarchy, both in this and other Kingdoms, as well about the Right of Power in Kings, as of the Original and Natural Liberty of the People.

A Question never yet Disputed, though most necessary in these Times.

IV.

The Power of Kings: And in Parti∣cular, of the King of England.

Page  [unnumbered]

V.

An Advertisement to the Jury-Men of England, touching Witches. Together with a Difference be∣tween an English and Hebrew Witch.

VI.

PATRIARCHA: Or the Na∣tural Power of KINGS.

Page  [unnumbered]

The Argument.

A Presentment of divers Statutes, Records, and other Precedents, explaining the Writs of Sum∣mons to Parliament: shewing,

  • I. That the Commons, by their Writ, are only to Perform and Consent to the Ordinances of Parliament.
  • II. That the Lords or Common Councel by their Writ are only to Treat, and give Counsel in Parlia∣ment.
  • III. That the King himself only Ordains and makes Laws, and is Supreme Judge in Parliament.

With the Suffrages of

  • Hen. de Bracton.
  • Jo. Britton.
  • Tho. Egerton.
  • Edw. Coke.
  • Walter Raleigh.
  • Rob. Cotton.
  • Hen. Spelman.
  • Jo. Glanvil.
  • Will. Lambard.
  • Rich. Crompton.
  • William Cambden, and
  • Jo. Selden.

Page  1

THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the King, and His Parliament.

EVery Free-holder that hath a Voice in the Election of Knights, Citizens, or Burges∣ses for the Parliament, ought to know with what Power he trusts those whom he chooseth, because such Trust is the Foundation of the Power of the House of Commons.

A Writ from the King to the Sheriff of the Coun∣ty, is that which gives Authority and Commission for the Free-holders to make their Election, at the next County-Court-day after the Receipt of the Writ; and in the Writ there is also expressed the Duty and Power of the Knights, Citizens and Bur∣gesses that are there elected.

Page  2The means to know what Trust or Authority the Countrey or Free-holders confer, or bestow by their Election, is in this, as in other like Cases, to have an eye to the words of the Commission, or Writ it self: thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission: greater or other Trust than is comprised in the Body of the Writ, the Free-holders do not, or cannot give if they obey the Writ: the Writ being Latine, and not extant in English, few Free-holders understand it, and fewer observe it; I have rendred it in Latine and English.

Rex Vicecomiti salut' &c.

QƲia de Advisamento & Assensu Concilii nostri pro quibusdam arduis & urgentibus Negotiis, Nos, sta∣tum & defensionem regni nostri Angliae, & Ecclesiae Anglicanae concernen', quoddam Parliamentum nostrum apud Civitatem nostram West. duodecimo die Novembris prox' futur' teneri ordinavimus, & ibid' cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tract': Tibi praecipimus firmiter injungentes quod facta proclam' in prox' comitat' tuo post receptionem hujus brevis nostri tenend' die & loco praedict' duos milit' gladiis cinct' magis idoneos & discretos comit' praedicti, & de qualib' civitate com' illius duos Cives, & de quo∣libet Burgo duos Burgenses de discretior' & magis suffi∣cientibus libere & indifferenter per illos qui proclam' hu∣jusmodi interfuerint juxta formam statutorum inde edit' & provis' eligi, & nomina corundum milit', civium & Burgensium, sic electorum in quibusdam indentur' inter te & illos qui hujusmodi election' interfuerint, inde confici∣end' Page  3 sive hujusmodi electi praesentes fuerint vel absentes, inseri: cósque ad dict' diem & locum venire fac'. Ita quod iidem milites plenam & sufficientem potestatem pro se & communitate comit' praedicti, ac dict' Cives & Bur∣genses pro se & communitat' Civitatum & Burgorum prae∣dictorum divisim ab ipsishabeant, ad faciendum & consen∣tiendum his quae tunc ibid' de communi Consilio dicti reg. nostri (favente Deo) contigerint ordinari super negotiis ante dictis: Ita quod pro defectu potestatis hujusmodi, seu propter improvidam electionem milit' Civium aut Bur∣gensium praedictorum, dicta negotia infecta non remaneant quovismodo. Nolumus autem quod tu nec aliquis alius vic' dicti reg. nostri aliqualiter sit electus. Et electionem illam in pleno comitatu factam, distincte & aperte sub sigillo tuo & sigillis eorum qui electioni illi interfuerint, nobis in cancellar' nostram ad dict' diem & locum certi∣fices indilate, remittens nobis alteram partem indentura∣rum praedictarum praesentibus consut' una cum hoc breve. Teste meipso apud Westmon'.

The King to the Sheriff of Greeting.

WHereas, by the Advice and Consent of our Councel, for certain difficult and urgent Businesses concerning Us, the State and Defence of our Kingdom of England, and the English Church: We have ordained a certain Parliament of ours, to be held at Our City of _____ the _____ day of _____ next ensuing, and there to have Conference, and to treat with the Prelates, Great men, and Peers of our said Kingdom. We com∣mand and straitly enjoyn you, that making Procla∣mation at the next County-Court after the Re∣ceipt of this our Writ, to be holden the day, and Page  4 place aforesaid: You cause two Knights, girt with Swords, the most fit and discreet of the County aforesaid: and of every City of that County two Citizens; of every Borough, two Burgesses of the discreeter and most sufficient; to be freely, and indifferently chosen by them who shall be present at such Proclamation, according to the Tenor of the Statutes in that case made and provided: and the Names of the said Knights, Citizens, and Burgesses so chosen, to be inserted in certain Indentures to be then made between you, and those that shall be pre∣sent at such Election, whether the Parties so elected be present, or absent: and shall make them to come at the said day, and place: so that the said Knights for themselves, and for the County aforesaid; and the said Citizens, and Burgesses for themselves, and the Commonalty of the aforesaid Cities and Bo∣roughs, may have severally from them, full and sufficient Power to Perform, and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common Councel of our said Kingdom, concerning the Busi∣nesses aforesaid: So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights, Citizens, and Burgesses. But We will not in any case you or any other Sheriff of our said Kingdom shall be elected; And at the Day and Place aforesaid, the said Election made in the full County-Court, you shall certifie without Delay to Us in our Chancery, under your Seal, and the Seals of them which shall be present at that Election, sending back unto Us the other part of the Indenture aforesaid affiled to these Presents, Page  5 together with this Writ. Witness our Self at Westmin.

By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom, or of the Supream Court of Judicature, or to have any part of the Legislative Power, or to Consult de arduis regni negotiis, of the Difficult Busi∣nesses of the Kingdom. The Writ only says, the King would have Conference, and Treat with the Pre∣lates, Great men, and Peers: but not a Word of Treating or Conference with the Commons; The House of Commons, which doth not minister an Oath, nor fine, nor imprison any, but their own Members (and that but of late in some Cases) can∣not properly be said to be a Court at all; much less to be a part of the Supream Court, or highest Judi∣cature of the Kingdom. The constant Custom, even to this day, for the Members of the House of Com∣mons to stand bare, with their Hats in their Hands in the Presence of the Lords, while the Lords sit co∣vered at all Conferences, is a visible Argument, that the Lords and Commons are not fellow-Commissi∣oners, or fellow-Counsellors of the Kingdom.

The Duty of Knights, Citizens, and Burgesses, mentioned in the Writ, is only ad Faciendum, & Consentiendum, to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom; there is not so much mentioned in the Writ as a Power in the Commons to dissent. When a man is bound to appear in a Court of Justice, the words are, ad Faciendum & Recipiendum quod ei per curiam injungetur: which shews, that this Word Faciendum is used as a Term in Law, to signifie to give Obedience: For this, we meet with a Precedent even as ancient as the Parliament-Writ it self, and it Page  6 is concerning Proceedings in Parliament 33 Ed. 1. Dominus Rex mandavit vicecom' quod, &c. summon' Ni∣colaum de Segrave, & ex parte Domini Regis firmiter ei injungeret, quod esset coram Domino Rege in proximo Parl. &c. ad audiendum voluntatem ipsius Domini Re∣gis, &c. Et ad faciendum & recipiendum ulterius quod curia Domini Regis consideraret in Praemissis.

Our Lord the King commands the Sheriff to summon Nicho∣las Segrave to appear before our Lord the King in the next Parliament, to hear the Will of the Lord our King himself, and to perform and receive what the Kings Court shall further consider of the Premises.

Sir Edw. Coke, to prove the Clergy hath no Voice in Parliament, saith, that by the Words of their Writ, their Consent was only to such things as were or∣dained by the Common Councel of the Realm. If this Ar∣gument of his be good, it will deny also Voices to the Commons in Parliament; for in their Writ are the self-same Words, viz. to consent to such things as were ordained by the Common Councel of the Kingdom. Sir Edw. Coke concludes, that the Procuratores Cleri, have many times appeared in Parliament, as Spiritual Assist∣ants, to Consider, Consult, and to Consent; but never had Voice there; how they could Consult and Con∣sent without Voices he doth not shew: Though the Clergy (as he saith) oft appeared in Parliament, yet was it only ad consentiendum, as I take it, and not ad fa∣ciendum, for the Word Faciendum is omitted in their Writ; the cause, as I conceive, is, the Clergy, though they were to assent, yet by reason of Clerical Exemp∣tions, they were not required to Perform all the Or∣dinances or Acts of Parliament.

But some may think, though the Writ doth not express a Calling of the Knights, Citizens, and Page  7 Burgesses to be part of the Common Councel of the Kingdom; yet it supposeth it a thing granted, and not to be questioned, but that they are a part of the Common Councel.

Indeed if their Writ had not mentioned the Call∣ing of Prelates, Great men, and Peers to Councel, there might have been a little better colour for such a Supposition: but the truth is, such a Supposition doth make the Writ it self vain and idle; for it is a senseless thing to bid men assent to that which they have already ordained: since Ordaining is an Assent∣ing, and more than an Assenting.

For clearing the meaning and sense of the Writ, and Satisfaction of such as think it impossible, but that the Commons of England have always been a part of the Common Councel of the Kingdom, I shall insist upon these Points: 1. That anciently the Barons of England were the Common Councel of the Kingdom. 2. That un∣till the time of Hen. 1. the Commons were not called to Parliament. 3. Though the Commons were called by Hen. 1. yet they were not constantly called, nor yet regularly elected by Writ until Hen. 3. time.

For the first point, Mr. Cambden in his Britannia, doth teach us, that in the time of the English Saxons, and in the ensuing Age, a Parliament was called Commune Concilium, which was (saith he) Praesentia Regis, Prae∣latorum, Procerumque collectorum, the Presence of the King, Prelates, and Peers assembled; No mention of the Commons: the Prelates and Peers were all Barons.

The Author of the Chronicle of the Church of Lichfield, cited by M. Selden,* saith, Postquam Rex Edvardus, &c. Concilio Baro∣num Angliae, &c. After King Edward was King; by the Councel of the Barons of England, he revived a Page  8 Law which had lain asleep three score & seven years: and this Law was called the Law of St. Edward the King.

In the same Chronicle it is said, that Will. the Conquerour, anno regni sui quarto apud Londin', had Concilium Baronum suorum, a Councel of his Barons. And of this Parliament it is, that his Son Hen. 1. speaks, saving, I restore you the Laws of King Edward the Con∣fessor, with those amendments wherewith my Father a∣mended them by the Councel of his Barons.

In the fifth year, as Mr. Selden thinks, of the Con∣querour, was a Parliament, or Principum conventus, an Assembly of Earls and Barons at Pinenden Heath in Kent, in the Cause between Lanfranke the Arch-bishop of Canterbury, and Odo Earl of Kent. The King gave Commission to Godfrid, then Bishop of Constance in Normandy, to represent His own Person for Hear∣ing the Controversie (as saith M. Lambard;) and caused Egelrick the Bishop of Chichester, (an aged man, singularly commended for Skill in the Laws and Customes of the Realm) to be brought thither in a Wagon for his Assistance in Councel: Commanded Haymo the Sheriff of Kent, to summon the whole County to give in Evidence: three whole days spent in Debate: in the End Lanfrank and the Bishop of Rochester were restored to the Possession of Detling and other Lands which Odo had withholden.

*There is mention of a Parlia∣ment held under the same King William the Conquerour,* wherein all the Bishops of the Land, Earls and Barons, made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich.

In the tenth year of the Conquerour, Episcopi, Comites, & Barones regni regià potestate ad universalem Page  9 Synodum pro causis audiendis & tractandis convocati, saith the Book of Westminster.

In the 2 year of William 2. there was a Parliament de cunctis regni Principibus; another wch had quos{que} regni Proceres: All the Peers of the Kingdom.*

In the seventh year was a Parliament at Rocking∣ham-Castle in Northamptonshire. Episcopis, Abba∣tibus cunctisque regni Principibus una coeuntibus.

A year or two after, the same King, de statu regni acturus, &c. called thither, by the Command of his Writ, the Bishops, Abbots,*and all the Peers of the Kingdom.

At the Coronation of Hen. 1. All the People of the Kingdom of England were called,* and Laws were then made; but it was Per Com∣mune Concilium Baronum meorum, by the Common Councel of my Barons.

In his 3 d. year, the Peers of the Kingdom were called without any mention of the Commons:* and a∣nother, a while after, consensu Comitum & Baro∣num, by the consent of Earls and Barons.

Florentius Wigorniensis saith, these are Statutes which Anselme and all the other Bishops in the Presence of King Henry, by the assent of his Barons ordained: and in his tenth year, of Earls and Peers; and in his 23. of Earls and Barons. In the year following, the same King held a Parliament, or great Councel, with His Barons Spiritual and Temporal.

King Hen. 2. in his tenth year, had a great Coun∣cel or Parliament at Clarendon, which was an Assem∣bly of Prelates and Peers.

22 Hen. 2. saith Hovenden, was a great Coun∣cel at Nottingham, and by the Common Councel of the Arch-bishops, Bishops, Earls and Barons, the King∣dom Page  10 was divided into six parts. And again, Hovenden saith, that the same King at Windsor (apud Winde∣shores) Communi Concilio of Bishops, Earls, and Ba∣rons, divided England into four Parts. And in his 21 Year a Parliament at Windsor of Bishops, Earls, and Barons. And another of like Persons at North∣ampton.

King Richard 1. had a Parliament at Nottingham, in his fifth year, of Bishops, Earls, and Barons: This Parliament lasted but four days, yet much was done in it: the first day the King disseiseth Gerard de Can∣vil of the Sherifwick of Lincoln, and Hugh Bardolph of the Castle and Sherifwick of York. The second day he required Judgment against his Brother John, who was afterwards King: and Hugh de Novant Bishop of Coventry. The third day was granted to the King of every Plow-land in England 2 s. He requi∣red also the third part of the Service of every Knights Fee for his Attendance into Normandy, and all the Wool that year of the Monks Cisteaux, which, for that it was grievous and unsupportable, they sine for Money. The last day was for Hearing of Grievan∣ces: and so the Parliament brake up; And the same year held another at Northampton of the Nobles of the Realm.

King John, in his fifth year, He and his Great men met,*Rex & Magnates convenerunt: and the Roll of that year hath Commune Concilium Baronum Meorum, the Common Councel of my Ba∣rons at Winchester.

In the sixth year of King Henry 3. the Nobles granted to the King, of every Knights Fee, two Marks in Silver.

Page  11In the seventh year he had a Parliament at Lon∣don, an Assembly of Barons. In his thirteenth year an Assembly of the Lords at Westminster. In his fifteenth year, of Nobles, both Spiritual and Tem∣poral.

M. Par. saith, that 20 H. 3. Congregati sunt Mag∣nates ad colloquium de negotiis regni tractaturi, the Great men were called to confer and treat of the Business of the Kingdom. And at Merton, Our Lord the King granted, by the Consent of his Great men, That hereafter Ʋsury should not run against a Ward from the Death of his Ancestor.

21 Hen. 3. The King sent his Royal Writs, com∣manding all belonging to His Kingdom, that is to say, Arch-bishops, Bishops, Abbots, and Priors installed, Earls and Barons, that they should all meet at London, to treat of the King's Business touching the whole King∣dom: and at the day prefixed, the whole multitude of the Nobles of the Kingdom met at London, saith Matt. Westminster.

In his 21 year, At the Request, and by the Councel of the Lords, the Charters were confirmed.

22 Hen. 3. At Winchester, the King sent his Royal Writs to Arch-bishops, Bishops, Priors, Earls and Ba∣rons, to treat of Business concerning the whole King∣dom.

32 Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom. Matt. Westm'.

49 Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom. Matt. Westminster.

At a Parliament at Marlborough 55. Hen. 3. Sta∣tutes were made by the Assent of Earls and Ba∣rons.

Page  12Here the Place of Bracton, Chief Justice in this Kings time, is worth the observing; and the rather for that it is much insisted on of late, to make for Parliaments being above the King. The words in Bracton are, The King hath a Superiour, God; also the Law by which he is made King; also his Court, viz. the Earls and Barons. The Court that was said in those days to be above the King, was a Court of Earls and Barons, not a word of the Commons, or the representative Body of the Kingdom being any part of the Superiour Court. Now for the true Sense of Bractons words, how the Law, and the Court of Earls and Barons, are the Kings Superiours; they must of Necessity be understood to be Superiours, so far only as to advise, and direct the King out of his own Grace and Good Will only: which appears plainly by the Words of Bracton himself, where, speaking of the King, he resolves thus, Nec potest ei necessitatem aliquis imponere quod injuriam suam corri∣gat & emendat, cum superiorem non habeat nisi Deum; & satis ei erat ad poenam, quod Dominum expectat ultorem. Nor can any man put a necessity upon him to cor∣rect and amend his Injury unless he will himself, since he hath no Superiour but God; it will be suf∣ficient Punishment for him, to expect the Lord an Avenger. Here the same man, who speaking accord∣ing to some mens Opinion, saith, the Law and Court of Earls and Barons are superiour to the King; in this place tells us himself, the King hath no Superiour but God: the Difference is easily reconciled; accord∣ing to the Distinction of the School-men, the King is free from the Coactive Power of Laws or Counsellors: but may be subject to their Directive Power, according to his own Will: that is, God can only compel, Page  13 but the Law and his Courts may advise Him.

Rot. Parliament. 1 Hen. 4. nu. 79. the Commons expresly affirm, Judgment in Parliament belongs to the King and Lords.

These Precedents shew, that from the Conquest until a great part of Henry the Third's Reign (in whose days it is thought the Writ for Election of Knights was framed) which is about two hundred years, and above a third part of the time since the Conquest, to our days, the Barons made the Par∣liament or Common Councel of the Kingdom; under the name of Barons, not only the Earls, but the Bishops also were Comprehended, for the Conquerour made the Bishops Barons. Therefore it is no such great Wonder, that in the Writ we find the Lords only to be the Counsellors, and the Commons Called only to perform and consent to the Ordinances.

Those there be who seem to believe, that under the word Barons anciently the Lords of Court-Ba∣rons were comprehended, and that they were Cal∣led to Parliament as Barons; but if this could be proved to have been at any time true, yet those Lords of Court-Barons were not the representative Body of the Commons of England, except it can be also proved, that the Commons, or Free-holders of the Kingdom, chose such Lords of Court-Barons to be present in Parliament. The Lords of Manors came not at first by Election of the People, as Sir Edw. Coke, treating of the Institution of Court-Ba∣rons, resolves us in these words: By the Laws and Ordinances of ancient Kings, and especially of King Al∣fred, it appeareth, that the first Kings of this Realm had all the Lands of England in Demean; and les grand Manors and Royalties they reserved to themselves, Page  14 and of the remnant they, for the Defence of the Realm, enfeoffed the Barons of the Realm with such Jurisdi∣ction as the Court-Baron now hath. Coke's Institutes, First part, Fol. 58.

Here, by the way, I cannot but note, that if the first Kings had all the Lands of England in Demean, as Sir Edw. Coke saith they had; And if the first Kings were chosen by the People (as many think they were) then surely our Fore-fathers were a very bountiful (if not a prodigal) People, to give all the Lands of the whole Kingdom to their Kings, with Liberty for them to keep what they pleased, and to give the Remainder to their Subjects, clogg'd and encumbred with a Condition to defend the Realm: This is but an ill sign of a limited Monarchy by origi∣nal Constitution or Contract. But, to conclude the former point, Sir Edward Coke's Opinion is, that in the ancient Laws, under the name of Barons, were com∣prised all the Nobility.

This Doctrine of the Barons being the Common Councel doth displease many, and is denied, as tending to the Disparagement of the Commons, and to the Discredit and Confutation of their Opinion, who teach, that the Commons are assigned Councellors to the King by the People; therefore I will call in Mr. Pryn to help us with his Testimony: He in his Book of Treachery & Disloyalty, &c. proves, that before the Conquest, by the Laws of Edward the Confessor, cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm. He also re∣solves, that the Earls and Barons in Parliament are a∣bove the King, and ought to bridle him, when he exorbi∣tates from the Laws. He further tells us, the Peers & Pre∣lates have oft translated the Crown from the right Heir,

Page  151. Electing and Crowning Edward, who was illegi∣timate; and putting by Ethelred, the right Heir, after Edgars decease.

2. Electing and Crowning Canutus, a meer Fo∣reigner, in opposition to Edmund, the right Heir to King Ethelred.

3. Harold and Hardiknute, both elected Kings suc∣cessively without title; Edmund and Alfred the right Heirs being dispossessed.

4. The English Nobility, upon the Death of Harold, enacted, that none of the Danish bloud should any more reign over them.

5. Edgar Etheling, who had best Title, was rejected; and Harold elected and crowned King.

6. In the second and third year of Edw. 2. the Peers and Nobles of the Land, seeing themselves contemn∣ed, entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons. He gave his As∣sent, and sware to ratifie what the Nobles ordained; and one of their Articles was, that He would thence∣forward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords.

7. William Rufus, finding the greatest part of the Nobles against him, sware to Lanfranke, that if they would choose him for King, he would abrogate their over∣hard Laws.

8. The Beginning, saith Mr. Pryn, of the Charter of Hen. 1. is observable; Henry by the Grace of God, of England, &c. Know ye, That by the Mercy of God and Common Councel of the Barons of the Kingdom, I am Crowned King.

9. Maud the Empress, the right Heir, was put-by the Crown, by the Prelates and Barons, and Stephen Earl of Mortain, who had no good Title, assembling the Page  16 Bishop and Peers, promising the amendment of the Laws according to all their Pleasures and Liking, was by them all proclaimed King.

10 Lewis of France Crowned King by the Barons, instead of King John.

All these Testimonies from Mr. Pryn may satisfie, that anciently the Barons were the Common Councel, or Parliament of England. And if Mr. Pryn could have found so much Antiquity, and Proof for the Knights, Citizens, and Burgesses, being of the Com∣mon Councel: I make no doubt but we should have heard from him in Capital Characters; but alas! he meets not with so much as these Names in those elder Ages. He dares not say, the Barons were assign∣ed by the People, Councellors to the King; for he tells us, every Baron in Parliament doth represent his own Person, and speaketh in behalf of himself alone; but in the Knights, Citizens, and Burgesses, are repre∣sented the Commons of the whole Realm: therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England. Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons, for the re∣presentative Body of the Kingdom; and to that Pur∣pose he cites them, or to no Purpose at all. But to prove the Treachery and Disloyalty of Popish Parlia∣ments, Prelates, and Peers, to their Kings: which is the main Point, that Master Pryn, by the Title of his Book is to make good, and to prove.

As to the second Point; which is, That until the time of Hen. 1. the Commons were not called to Parliament: besides, the general Silence of Antiqui∣ty which never makes mention of the Commons Coming to Parliament until that time; our Histories Page  17 say, before his time only certain of the Nobility were called to Consultation about the most important affairs of the State: He caused the Commons also to be assembled by Knights, Citizens, and Burgesses of their own Ap∣pointment: much to the same purpose writes Sir Walter Raleigh, saying, it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year, for the Marriage of his Daughter, the King raised a Tax upon every Hide of Land, by the Advice of his Privy Councel alone. And the Subjects (saith he) soon after this Parliament was established, began to stand upon Terms with their King, and drew from him by strong hand, and their Swords, their Great Charter; it was after the establishment of the Parliament, by colour of it, that they had so great Daring. If any desire to know the cause why Hen. 1. called the People to Parliament, it was upon no very good Occasion, if we believe Sir Walter Raleigh; The Grand Charter (saith he) was not originally granted Regally and freely, for King Hen. 1. did but usurp the Kingdom, and therefore the better to secure himself against Robert his elder Brother, he flattered the People with those Charters: yea, King John that confirmed them, had the like Respect: for Arthur D. of Britain was the undoubted Heir of the Crown, upon whom John usurped: so these Charters had their original from Kings, de facto, but not de jure: and then after∣wards his Conclusion is, that the Great Charter had first an obscure Birth by Ʋsurpation, & was fostered, and shewed to the World by Rebellion: in brief, the King cal∣led the People to Parliament, and granted them Magna Charta, that they might confirm to him the Crown.

The third Point consists of two parts; First, that the Commons were not called to Parliament until Page  18Hen. 3. days, this appears by divers of the Prece∣dents formerly cited, to prove that the Barons were the Common Councel. For though Hen. 1. called all the People of the Land to his Coronation, and again in the 15. or 18. year of his Reign; yet always he did not so; neither many of those Kings that did succeed him, as appeareth before.

Secondly, For calling the Commons by Writ, I find it acknowledged in a Book, intituled, The Pri∣vilege and Practice of Parliaments, in these words; In ancient times, after the King had summoned His Par∣liament, innumerable multitudes of People did make their Access thereunto, pretending that Privilege of Right to belong to them. But King Hen. 3. having Experience of the Mischief, and inconveniences by occa∣sion of such popular Confusion, did take order that none might come to His Parliament but those who were speci∣ally summoned. To this purpose it is observed by Master Selden, that the first Writs we find accompanied with other Circumstances of a Summons to Parliament, as well for the Commons as Lords, is in the 49 of Hen. 3. In the like manner Master Cambden speak∣ing of the Dignity of Barons, hath these words: King Hen. 3. out of a great Multitude which were se∣ditious and turbulent, called the very best by Writ or Summons to Parliament; for he, after many Troubles and Vexations between the King himself, and Simon de Monefort, with other Barons; and after appeased: did decree and ordain, That all those Earls and Barons un∣to whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament, and no others: but that which he began a little before his Death, Edward 1. and his Successors constantly ob∣served and continued. The said prudent King Edward Page  19summoned always those of ancient Families, that were most wise, to His Parliament; and omitted their Sons after their Death, if they were not answerable to their Pa∣rents in Ʋnderstanding.* Also Mr. Cambden in another place saith, that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament, and their Posterity omitted, if they were defective therein.

As the power of sending Writs of Summons for Elections, was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs, as doth appear by several Statutes, which all speak in the Name and Power of the Kings themselves; for such was the Language of our Fore-fathers.

In 5 Ric. 2. c. 4. these be the words, The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament: and every Person that doth absent himself (except he may reasonably and ho∣nestly excuse him to Our Lord the King) shall be amer∣ced, and otherwise punished.

7 Hen. 4. c. 15. Our Lord the King, at the grievous complaint of his Commons, of the undue Election of the Knights of Counties, sometimes made of affection of She∣riffs, and otherwise against the Form of the Writs, to the great slander of the Counties, &c. Our Lord the King, willing therein to provide Remedy, by the Assent of the Lords and Commons, Hath Ordained, That Election shall be made in the full County-Court, and that all that be there present, as well-Suitors as others, shall proceed to the Election freely, notwithstanding any Request, or Com∣mand to the contrary.

11 Hen. 4. c. 1. Our Lord the King Ordained, that a Sheriff that maketh an undue Return, &c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King.

Page  201 H. 5. c. 1. Our Lord the King, by the Advice and Assent of the Lords, and the special Instance and Re∣quest of the Commons, Ordained, that the Knights of the Shire be not chosen, unless they be resiant within the Shire the day of the date of the Writ: and that Citi∣zens and Burgesses be resiant, dwelling, and free in the same Cities and Burroughs, and no others, in any wise.

6 Hen. 6. c. 4. Our Lord the King, willing to pro∣vide remedy for Knights chosen for Parliament, and She∣riffs, Hath Ordained, that they shall have their An∣swer, and traverse to Inquest of Office found against them.

8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages, and excessive number of People, of which most part was of People of no value, whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires, whereby Man-slaughters, Riots, and Divisions among Gentlemen shall likely be: Our Lord the King hath ordained, That Knights of Shires be chosen by People dwelling in the Counties, every of them having Lands or Tenements to the value of 2 l. the year at the least, and that he that shall be chosen, shall be dwelling and resiant within the Counties.

10 H. 6. Our Lord the King ordained, that Knights be chosen by People dwelling, and having 2 l. by the year within the same County.

11 H. 6. c. 11. The King, willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment, hath ordained, that if any Assault or Fray be made on them that come to Par∣liament, or other Councel of the King; the Party which made any such Affray or Assault, shall pay double Dama∣ges, and make Fine and Ransom at the Kings Will.

Page  2123 H. 6. c. 15. The King, considering the Statutes of 1 H. 5. c. 1. & 8 Hen. 6. c. 7. and the Defaults of She∣riffs in returning Knights, Citizens, and Burgesses, ordained;

1. That the said Statutes should be duly kept.

2. That the Sheriffs shall deliver Precepts to Mayors and Bailiffs to chuse Citizens and Burgesses.

3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of Knights, Citi∣zens and Burgesses.

4. The Penalty of 40 l. for Mayors or Bailiffs, ma∣king untrue Returns.

5. Due Election of Knights must be in the full Coun∣ty-Court, between the Hours of Eight and Eleven before noon.

6. The Party must begin his Suit within 3 Moneths after the Parliament began.

7. Knights of the Shire shall be notable Knights of the County, or such notable Esquires, or Gentlemen born, of the said Counties, as shall be able to be Knights, and no man to be such Knight which standeth in the Degree of a Yeoman, and under.

The last thing I observe in the Writ for Election of Members for Parliament, is, That by the express words of the Writ, Citizens and Burgesses for the Parliament were eligible at the County-Court, as well as Knights of the Shire; and that not only Free∣holders, but all others, whosoever were present at the County-Court, had Voices in such Elections: See the Stat. 7 Hen. 4. cap. 15.

I have the longer insisted on the Examination of the Writ, being the Power & Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ.

Page  22I would not be understood to determine what Power the House of Commons doth; or may exer∣cise if the King please: I confine my self only to the Power in the Writ. I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain, and King James in the Business of the Palatinate, asked the Councel of the House of Commons; and not only the House of Commons, but every Subject in parti∣cular by Duty and Allegiance, is bound to give his best Advice to his Sovereign, when he is thought worthy to have his Councel asked.

13 Edw. 3. nu. 10. All the Merchants of England were summoned by Writ to appear at Westminster, in proper Person, to confer upon great business concerning the King's Honour, the Salvation of the Realm, and of themselves.

In Passages of publick Councel it is observable (saith Sir Rob. Cotton) that in ancient times the Kings of England,*did entertain the Commons with weighty Causes, thereby to apt and bind them to a readi∣ness of Charge; and the Commons to shun Expence have warily avoided to give Advice.

13 Edw. 3. The Lords and Commons were cal∣led to consult how the domestick Quiet may be pre∣served, the Marches of Scotland defended, and the Sea secured from Enemies. The Peers and Com∣mons having apart consulted, the Commons desi∣red Not to be charged to Councel of things of which they had no Cognisance; de queux ils n' ont pas de Cog∣nisance.

21 Edw. 3. Justice Thorp declaring to the Peers and Commons, that the French War began by their Advice; the Truce after by their Assent accepted, and now ended: the Kings Pleasure was, to have Page  23 their Counsel in the Prosecution: the Commons, being commanded to assemble themselves, and when they were agreed, to give notice to the King, and the Lords of the Councel; after four days Consulta∣tion, Humbly desire of the King that he would be advi∣sed therein by the Lords and others of more Experience than themselves in such Affairs.

6 Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt, or send an Army. The Commons, after two days Debate, crave a Conference with the Lords, and Sir Thomas Puckering (their Speaker) protests, that Councels for War did aptly belong to the King and His Lords; yet since the Commons were com∣manded to give their Advice, they humbly wished a Voyage by the King.

7 Ric. 2. At the second Session, the Commons are willed to Advise upon View of Articles of Peace with the French; whether War or such Amity should be accepted; they modestly excuse themselves, as too weak to Counsel in so weighty Causes. But charged again, as they did tender their Honour and the Right of the King; they make their Answer, giving their Opini∣ons, rather for Peace than War.

For fuller Manifestation of what hath been said touching the Calling, Election, and Power of the Commons in Parliament, it is behooveful to observe some Points delivered by Sir Edw. Coke in his Trea∣tise of the Jurisdiction of Parliaments; where,

First, he fairly begins, and lays his Foundation, that the High Court of Parliament consisteth of the Kings Ma∣jesty sitting there, and of the three Estates;

  • 1. The Lords Spiritual.
  • 2. The Lords Temporal.
  • Page  243. And the Commons.
Hence it is to be gathered, that truly and properly it cannot be called the High Court of Parliament, but whilst the King is sitting there in Person: so that the Question now a-days, whether the Parliament be above the King, is either false or idle: false, if you exclude, and idle if you include the King's Person in the word Parliament: The case truly put, and as it is meant, is, whether the three Estates, (or, which is all one, the Lords and Commons) assem∣bled in Parliament be above the King: and not whether the King with the three Estates be above the King: It appears also that they are much mista∣ken, who reckon the King one of the three Estates, as Mr. Pryn, pag. 20. and many others do; for the three Estates make the Body, and the King is Caput, Principium, & Finis Parliamentor', as confesseth Sir Edw. Coke.

Secondly, Sir Edw. Coke delivers, That certain it is, both Houses at first sate togther, and that it appears in Edward the Third's time, the Lords and Commons sate together, and the Commons had no continual Speaker. If he mean, the Lords and Commons did sit, and Vote together in one Body, few there be that will believe it; because the Commons never were wont to lose, or forego any of their Liberties, or Privileges; and for them to stand now with their Hats in their hands (which is no Magistratical Posture) there, where they were wont to sit and Vote, is an altera∣tion not imaginable to be endured by the Commons. It may be, in former times, when the Commons had no constant Speaker, they were oft, and perhaps for the most part, in the same Chamber, and in the pre∣sence of the Lords, to hear the Debates and Con∣sultations Page  25 of the Great Councel, but not to sit and Vote with them: for when the Commons were to Advise among themselves, the Chapter-house of the Abby of Westminster was oft-times their place to meet in, before they had a setled House, and their meet∣ings not being very frequent, may be the reason, I conceive, why the name of the House of Commons is not of such great Antiquity, or taken notice of; but the House of Lords was only called the Parlia∣ment-House: and the Treatise called, Modus tenen∣di Parliamentum, speaks of the Parliament as but of one House only. The House, where now the Com∣mons sit in Westminster, is but of late Use, or Insti∣tution: for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen,* and had a Dean, Secular Canons, and Chorists, who were the Kings Quire at his Palace at Westminster, and at the dissolution were translated to the Kings Chappel at White-hall.

Also I read, that Westminster-hall being out of Re∣pair, Ric. 2. caused a large House to be builded be∣twixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court: the House was long and large, made of Timber, covered with Tiles, open on both sides, that all might see and hear what was both said and done: four thousand Arch∣ers of Cheshire, which were the Kings own Guard, attended on that House, and had bouche a Court, and 6 d. by the day.

Thirdly, he saith, The Commons are to chuse their Speaker, but seeing after their Choice the King may re∣fuse him, the Ʋse is (as in the conge d' eslire of a Bi∣shop) that the King doth name a Discreet, Learned man, whom the Commons Elect: when the Commons have Page  26 chosen, the King may allow of his Excuse, and Disal∣low him, as Sir John Popham was, (saith his Mar∣gin.)

Fourthly, he informs us, That the first day of the Parliament four Justices assistants, and two Civilians, (Masters of the Chancery) are appointed Receivers of Petitions, which are to be delivered within six days fol∣lowing: and six of the Nobility, and two Bishops, calling to them the Kings Learned Councel, when need should be, to be Tryers of the said Petitions, whether they were rea∣sonable, good, and necessary to be offered and propounded to the Lords. He doth not say, that any of the Com∣mons were either Receivers, or Tryers of Petitions: nor that the Petitions were to be propounded to Them, but to the Lords.

Fifthly, he teacheth us, that a Knight, Citizen, or Burgess, cannot make a Proxy, because he is Elected, and Trusted by multitudes of People: here a Question may be, whether a Committee, if it be Trusted to act any thing, be not a Proxy? since he saith, the High Power of Parliament to be committed to a few, is holden to be against the Dignity of Parliaments; and that no such Commission ought to be granted.

Sixthly, he saith, The King cannot take notice of any thing said, or done in the House of Commons, but by the Report of the House. Surely, if the Commons sate with the Lords, and the King were present, He might take notice of what was done in His Presence. And I read in Vowel, that the old Ʋsage was, that all the Degrees of Parliament sate together, and every man that had there to speak, did it openly, before the King and his whole Parliament.

In the 35 Eliz. there was a Report, that the Com∣mons were against the Subsidies, which was told Page  27 the Queen: whereupon, Sir Henry Knivet said, It should be a thing answerable at the Bar for any man to report any thing of Speeches, or Matters done in the House. Sir John Woolley liked the Motion of Secrecy; except only the Queen, from whom, he said, there is no reason to keep any thing: And Sir Robert Cecil did allow, that the Councel of the House should be se∣cretly kept, and nothing reported in malam partem. But, if the meaning be, that they might not report any thing done here to the Queen, he was altogether against it.

Seventhly, He voucheth an Inditement or Informa∣tion in the Kings Bench against 39 of the Commons, for departing without Licence from Parliament, contrary to the Kings Inhibition: whereof six submitted to their Fines, and Edmund Ployden pleaded, he remained continually from the beginning to the end of the Parliament: Note, he did not plead to the Jurisdiction of the Court of Kings Bench, but pleaded his constant Attendance in Parliament, which was an acknowledgment, and submitting to the Jurisdiction of that Court: and had been an unpardonable betraying of the Privile∣ges of Parliament by so learned a Lawyer, if his Case ought only to be tryed in Parliament.

Eighthly, he resolves, that the House of Lords in their House have Power of Judicature, and the Com∣mons in their House: and both Houses together. He brings Records to prove the Power of Judicature of both Houses together, but not of either of them by it self. He cites the 33 Edw. 1. for the Judica∣ture of both Houses together: where Nicholas de Segrave was adjudged per Praelatos, Comites, & Barones, & alios de Concilio, by the Prelates, Earls and Barons, and others of the Councel. Here is no mention of Page  28 the Judgment of the Commons. Others of the Councel, may mean, the Kings Privy Councel, or his Councel Learned in the Laws, which are called by their Writs to give Counsel; but so are not the Commons. The Judgment it self saith,

Nicholas de Segrave confessed his fault in Parliament, and sub∣mitted himself to the Kings Will: thereupon the King, willing to have the Advice of the Earls, Ba∣rons, Great men, and others of his Councel, enjoyn∣ed them by the Homage, Fealty, and Allegiance which they owed, that they should faithfully coun∣sel Him what Punishment should be inflicted for such a Fact: who all, advising diligently, say, That such a Fact deserves loss of Life and Members.
Thus the Lords (we see) did but Advise the King what Judgment to give against him that deserted the Kings Camp, to fight a Duel in France.

Ninthly, he saith, Of later times, see divers notable Judgments at the Prosecution of the Commons, by the Lords: where the Commons were Prosecutors, they were no Judges, but (as he terms them) general In∣quisitors, or the Grand Inquest of the Kingdom. The Judgments he cites are but in King James his days, and no elder.

Tenthly, also he tells us, of the Judicature in the House of Commons alone; his most ancient precedent is but in Queen Elizabeths Reign, of one Tho. Long, who gave the Mayor of Westbury 10 l. to be elected Burgess.

Eleventhly, he hath a Section, entitled, The House of Commons (to many Purposes) a distinct Court: and saith, Not a, the House of Commons to many Purposes, a distinct Court: of those many Purposes he tells but one, that is, it uses to adjourn it self. Commissioners that Page  29 be but to examine Witnesses, may Adjourn them∣selves, yet are no Court.

Twelfthly, he handles the Privileges of Parliament, where the great Wonder is, that this great Master of the Law, who hath been oft a Parliament-man, could find no other, nor more Privileges of Parliament but one, and that is, Freedom from Arrests: which, he saith, holds, unless in three cases, Treason, Felony, and the Peace. And for this freedom from Arrests, he cites Ancient Precedents for all those in the House of Lords, but he brings not one Precedent at all for the Commons Freedom from Arrests.

It is behooveful for a Free-holder to consider what Power is in the House of Peers; for although the Free-holder have no Voice in the Election of the Lords, yet if the Power of that House extend to make Ordinances that bind the Free-holders, it is ne∣cessary for him to enquire what and whence that Pow∣er is, and how far it reacheth: The chief Writ of Summons to the Peers was in these words,

CAROLUS Dei Gratia, &c. Reverendissimo in Chri∣sto patri G. eadem gratia Archiepiscopo Cantuari∣ensi totius Angliae Primati & Metropolitano, salutem. Quia de advisamento & assensu Concilii nostri, pro qui∣busdam arduis & urgentibus negotiis, Nos & statum & defensionem regni nostri Angliae, & ecclesiae Anglica∣nae concernentibus, quoddam Parliamentum nostrum apud W. &c. teneri ordinavimus, & ibidem vobiscum, & cum caeteris Praelatis, Magnatibus & Proceribus dicti regni nostri Angliae colloquium habere, & tractatum: Vobis in fide, & dilectione quibus nobis tenemini firmiter injun∣gendo Page  30 mandamus, quod consideratis dictorum negotiorum ardititate, & periculis imminentibus, cessante quacunque excusatione dictis die & loco personaliter intersitis. Nobis∣cum & cum caeteris Praelatis, Magnatibus, & Proceribus praedictis, super dictis negotiis tractaturi, vestrumque con∣cilium impensuri, & hoc sicut Nos & Honorem nostrum ac salvationem regni praedicti, ac ecclesiae sanctae, expedi∣tionemque dictorum negotiorum diligitis, nullatenus omit∣tatis; Praemonentes Decanum & Capitulum ecclesiae vestrae Cantuariensis, ac Archidiaconos, totumque Clerum vestrae Diocesis, quod idem Decanus & Archidiaconi in propriis personis suis, ac dictum Capitulum per unum, idemque Clerus per duos Procuratores idoneos, plenam & sufficien∣tem potestatem ab ipsis Capitulo & Clero habentes, praedi∣ctis die & loco personaliter intersint, ad consentiendum hiis quae tunc ibidem de Commune Concilio ipsius Regni Nostri, divina favente Clementia, contigerint ordinari. Teste Me∣ipso apud Westm', &c.

CHARLES by the Grace of God, &c. To the most Reverend Father in Christ W. by the same Grace Arch-bishop of Canterbury, Primate and Me∣tropolitan of all England, Health. Whereas by the Advice and Assent of our Councel, for certain diffi∣cult and urgent Businesses concerning Us, the State, and Defence of Our Kingdom of England, and of the English Church: We have Ordained a certain Parliament of Ours to be holden at W. &c. and there to have Conference, and to treat with you the Prelates, Great men, and Peers of Our said Kingdom. We straitly Charge and Command, by the Faith and Love by which you are bound to Us, that con∣sidering the Difficulties of the Businesses aforesaid, and the imminent Dangers, and setting aside all Ex∣cuses, Page  31 you be personally present at the Day and Place aforesaid, to treat and give your Counsel concern∣ing the said Businesses: And this, as you love Us and Our Honour, and the Safe-guard of the foresaid Kingdom and Church, and the Expedition of the said Businesses, you must no way omit. Forewarn∣ing the Dean and Chapter of your Church of Can∣terbury, and the Arch-deacons, and all the Clergy of your Diocese, that the same Dean, and the Arch-deacon in their proper Persons, and the said Chapter by one, and the said Clergy by two fit Proctors, having full and sufficient Power from them the Chapter and Clergy, be personally pre∣sent at the foresaid Day and Place, to Consent to those things, which then and there shall happen by the favour of God, to be Ordained by the Com∣mon Councel of our Kingdom. Witness our Self at Westm'.

The same Form of Writ, mutatis mutandis, con∣cluding with, you must no way omit. Witness, &c. is to the Temporal Barons: But whereas the Spiri∣tual Barons are required by the Faith and Love; the Temporal are required by their Allegiance or Ho∣mage.

The Difference between the two Writs is, that the Lords are to Treat and to Give Counsel; the Commons are to Perform and Consent to what is ordained.

By this Writ the Lords have a deliberative or a consultive Power to Treat, and give Counsel in difficult Businesses: and so likewise have the Judges, Barons of the Exchequer, the Kings Councel, and the Ma∣sters of the Chancery, by their Writs. But over and besides this Power, the Lords do exercise a decisivePage  32 or Judicial Power, which is not mentioned or found in their Writ.

For the better Understanding of these two diffe∣rent Powers, we must carefully note the distincti∣on between a Judge and a Counsellor in a Monar∣chy: the ordinary Duty, or Office of a Judge is to give Judgment, and to command in the Place of the King; but the ordinary Duty of a Counsellor is to advise the King what he himself shall do, or cause to be done: The Judge represents the Kings Person in his absence, the Counsellor in the Kings Presence gives his Advice: Judges by their Commission or Institution are limited their Charge and Power, and in such things they may judge, and cause their Judg∣ments to be put in execution: But Counsellors have no Power to command their Consultations to be executed, for that were to take away the Sovereign∣ty from their Prince, who by his Wisdom is to weigh the Advice of his Councel, and at liberty to resolve according to the Judgment of the wiser part of his Councel, and not always of the greater: In a word, regularly a Councellor hath no Power but in the Kings Presence, and a Judge no Power but out of his Presence; These two Powers thus distinguished, have yet such Correspondency, and there is so near Affinity between the Acts of judging and counsel∣ling; that although the ordinary Power of the Judg is to give Judgment: yet by their Oath they are bound in Causes extraordinary, when the King pleaseth to call them, to be his Counsellors; and on the other side, although the proper work of a Coun∣sellor be only to make Report of his Advice to his Sovereign, yet many times for the Ease only, and by the Permission of the King, Councellors are allowed Page  33 to judge and command in Points wherein ordinarily they know the mind of the Prince; and what they do is the act of the Royal Power it self: for the Councel is always presupposed to be united to the Person of the King, and therefore the Decrees of the Councel are styled, By the King in his Privy Councel.

To apply this Distinction to the House of Peers: whe find originally they are called as Counsellors to the King, and so have only a deliberative Power specified in their Writ, and therefore the Lords do only then properly perform the Duty for which they are called, when they are in the King's Presence, that He may have Conference and treat with them: the very Words of the Writ are, Nobiscum ac cum Praelatis, Magnatibus & Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri, with Us and with the Pre∣lates, Great men and Peers, to treat and give your councel: the word Nobiscum implieth plain∣ly the King's Presence. It is a thing in reason most absurd, to make the King assent to the Judgments in Parliament, and allow Him no part in the Consultation; this were to make the King a Subject. Councel loseth the name of Counsel, and becomes a Command, if it put a Necessi∣ty upon the King to follow it: such Imperious Councels, make those that are but Counsellors in name to be Kings in Fact: and Kings them∣selves to be but Subjects. We read in Sir Ro∣bert Cotton, that towards the end of the Saxons, and the first times of the Norman Kings, Parliaments stood in Custom-grace fixed to Easter, Whitsuntide, and Christmas; and that at the Kings Court, or Palace, Page  34 Parliaments sate in the Presence, or Privy Chamber: from whence he infers an Improbability to believe the King excluded His own Presence; and unmannerly for Guests to bar him their Company who gave them their Entertainment. And although now a-days the Parli∣ament sit not in the Court where the Kings houshold remains, yet still even to this day, to shew that Par∣liaments are the Kings Guests, the Lord Steward of the Kings Houshold keeps a standing Table to enter∣tain the Peers during the sitting of Parliament; and he alone, or some from, or under him, as the Trea∣surer, or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament.

*Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King, by the Com∣mandment of the Lords sitting in full Parliament in the Great Chamber, put J. Lord Gomeniz and Wil∣liam Weston to answer severally to Accusations brought against them.

The Necessity of the King's Presence in Parliament, appears by the Desire of Parliaments themselves in former times; and the Practice of it Sir Robert Cotton proves by several Precedents: whence he concludes, that in the Consultations of State, and Decisions of pri∣vate Plaints, it is clear from all times, the King was not only present to advise, but to determine also. When∣soever the King is present, all Power of judging, which is derived from His, ceaseth: The Votes of the Lords may serve for matter of Advice, the final Judgment is only the Kings. Indeed, of late years, Queen Mary and Queen Elizabeth, by reason of their Sex, being not so fit for publick Assemblies, have brought them out of Use, by which means it is come Page  35 to pass, that many things which were in former times acted by Kings themselves, have of late been left to the Judgment of the Peers; who, in Quality of Judges extraordinary, are permitted for the Ease of the King, and in his absence, to determine such matters as are properly brought before the King Himself sitting in Person, attended with His great Councel of Prelates and Peers. And the Ordinances that are made there, receive their Establishment ei∣ther from the Kings Presence in Parliament, where his Chair of State is commonly placed; or at least from the Confirmation of Him, who in all Courts, and in all Causes is Supreme Judge. All Judg∣ment is by, or under Him; it cannot be without, much less against his Approbation. The King only and none but He, if he were able, should judge all Causes; saith Bracton, that ancient Chief Justice in Hen. 3. time.

An ancient Precedent I meet with cited by Master Selden, of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest, wherein I observe the Kings Will was, that the Lords should be Judges, in the Cause wherein Himself was a Party; and He ratified their Proceeding: The case was thus, Earl Godwin having had a Trial before the Lords under King Hardicanute, touching the Death of Alfred (Son to King Ethelbert, and Brother to him who was afterward Edward the Confessor) had fled out of England; and upon his Return, with hope of Edward the Confessor's Favour, he solicited the Lords to intercede for him with the King; who (consult∣ing together) brought Godwin with them before the King to obtain his Grace and Favour: But the King presently, as soon as he beheld him, said, Thou Page  36 Traytor Godwin, I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain; Then Godwin excusing it, answered, My Lord the King, may it please your Grace, I neither betrayed nor killed your Brother, whereof I put my self upon the Judg∣ment of your Court: Then the King said, You noble Lords, Earls, and Barons of the Land, who are my Liege men now gathered here together, and have heard my Appeal, and Godwin's Answer, I will that in this Appeal between us, ye decree right Judgment, and do true Justice. The Earls and Barons treating of this among themselves were of differing Judgments; some said, that Godwin was never bound to the King, either by Homage, Service, or Fealty, and therefore could not be his Traytor, and that he had not slain Alfred with his own hands: others said, that neither Earl nor Baron, nor any other Subject of the King, could wage his war by Law against the King in his Appeal; but must wholly put him∣self into the King's Mercy, and offer competent Amends. Then Leofric Consul of Chester, a good man before God and the World, said, Earl Godwin, next to the King, is a man of the best Parentage of all England, and he cannot deny, but that by his Counsel Alfred the King's Brother was slain, there∣fore for my part I consider, that He and his Son, and all we twelve Earls who are his Friends and Kins∣men, do go humbly before the King, laden with so much Gold and Silver as each of us can carry in our Arms, offering him That for his Offence, and hum∣bly praying for Pardon; And he will pardon the Earl, and taking his Homage and Fealty, will restore him all his Lands. All they in this form lading them∣selves with Treasure, and coming to the King, did Page  37 shew the Manner and Order of their Consideration, to which, The King not willing to contradict, did ra∣tifie all that they had judged.

23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westmin∣ster,* for the determination of that great Con∣tention between Alfonso King of Castile, and Sancho King of Navarre, touching divers Castles and Ter∣ritories in Spain, which was by comprise submitted to the Judgment of the King of England. And The King, consulting with his Bishops, Earls, and Barons determined it (as he saith) Himself in the first Person, in the Exemplification of the Judg∣ment.

2. Of King John also, that great Controversie touching the Barony that William of Moubray claim∣ed against William of Stutvil, which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom, and Will of the King: Con∣cilio Regni, & Voluntate Regis.

The Lords in Parliament adjudge William de We∣ston to Death for surrendring Barwick Castle,* but for that Our Lord the King was not in∣formed of the manner of the Judgment, the Con∣stable of the Tower, Allen Bruxal, was commanded safely to keep the said William until he had other Com∣mandment from our Lord the King. 4 Ric. 2.

Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ar∣dee:* and for that he was a Gentleman and Bannaret, and had served the late King, He should be beheaded, and for that our Lord the King was not informed of the manner of the Judgment, the Execution thereof shall be respited until our Lord the Page  38 King shall be informed. It is commanded to the Con∣stable of the Tower, safely to keep the said John, un∣til he hath other commandment from our Lord the King.

In the case of Hen. Spencer Bishop of Norwich, 7 Ric. 2. who was accused for complying with the French, and other Failings; the Bishop complained, what was done against him, did not pass by the As∣sent and Knowledge of the Peers; whereupon it was said in Parliament, that The Cognisance and Punish∣ment of his Offence did, of common Right, and ancient Custom of the Realm of England, solely and wholly be∣long to our Lord the King, and no other: Le Cognisance & Punissement de commune droit & auntienne custome de Royalme de Engleterre, seul & per tout apperteine au Roy nostre Seignieur, & a nul autre.

In the case of the Lord de la Ware, the Judgment of the Lords was, that he should have place next after the Lord Willoughby of Erisby, by consent of all, ex∣cept the Lord Windsor: and the Lord Keeper was re∣quired to acquaint her Majesty with the Determination of the Peers, and to know her Pleasure concerning the same.

The Inference from these Precedents, is, that the Decisive or Judicial Power exercised in the Chamber of Peers, is meerly derivative, and subservient to the Supreme Power, which resides in the King, and is grounded solely upon his grace and favour; for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature, in that they are the Representative Body of the Kingdom (as they say) and so being the whole, may take care, and have power by Nature to preserve themselves: yet the House of Peers do not, nor can∣not Page  39 make any such the least Pretence, since there is no reason in Nature, why amongst a company of men who are all equal, some few should be picked out to be exalted above their Fellows, and have power to Govern those who by Nature are their Companions. The difference between a Peer and a Commoner, is not by Nature, but by the grace of the Prince: who creates Honours, and makes those Ho∣nours to be hereditary (whereas he might have gi∣ven them for life only, or during pleasure, or good behaviour) and also annexeth to those Honours the power of having Votes in Parliament, as heredita∣ry Counsellors, furnished with ampler privileges than the Commons: All these Graces conferred up∣on the Peers, are so far from being derived from the Law of Nature, that they are contradictory and destructive of that natural Equality and Freedom of Mankind, which many conceive to be the Foun∣dation of the privileges and Liberties of the House of Commons; There is so strong an opposition be∣tween the Liberties of Grace and Nature, that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity, and eternal Jarring, had they been raised upon such op∣posite Foundations: But the Truth is, the Liberties and Privileges of both Houses have but one, and the self-same Foundation, which is nothing else but the meer and sole Grace of Kings.

Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom.

The matter about which the deliberative power is conversant, is generally the Consulting and Advi∣sing Page  40 upon any urgent Business which concerns the King, or Defence of the Kingdom: and more especi∣ally sometimes in preparing new Laws; and this Power is grounded upon the Writ.

The decisive Power is exercised in giving Judg∣ment in some difficult Cases; but for this Power of the Peers, I find no Warrant in their Writ.

Whereas the Parliament is styled the Supreme Court, it must be understood properly of the King sitting in the House of Peers in Person; and but impro∣perly of the Lords without him: Every Supreme Court must have the Supreme Power, and the Su∣preme Power is always Arbitrary; for that is Arbi∣trary which hath no Superiour on Earth to controll it. The last Appeal in all Government, must still be to an Arbitrary Power, or else Appeals will be in Infinitum, never at an end. The Legislative Power is an Arbitrary Power, for they are termini converti∣biles.

The main Question in these our days, is, Where this Power Legislative remains? or is placed; upon conference of the Writs of Summons for both Hou∣ses, with the Bodies and Titles of our Ancient Acts of Parliament, we shall find the Power of making Laws rests solely in the King. Some affirm, that a part of the Legislative Power is in either of the Hou∣ses; but besides invincible reason from the Nature of Monarchy it self, which must have the Supreme Power Alone; the constant Antient Declaration of this Kingdom is against it. For howsoever of later years in the Titles and Bodies of our Acts of Parlia∣ment it be not so particularly expressed who is the Author and Maker of our Laws, yet in almost all our elder Statutes it is precisely expressed, that they Page  41 are made by the King Himself: The general words used of later times, that Laws are made by Authori∣ty of Parliament, are particularly explained in former Statutes, to mean, That the King Ordains, the Lords Advise, the Commons Consent, as by comparing the Writs with the Statutes that expound the Writs, will evidently appear.

Magna Charta begins thus, Henry by the Grace of God, Know ye, that WE of Our Meer and Free Will have given these Liberties.

In the self-same style runs Charta de Foresta, and tells us the Author of it.

The Statute de Scaccario 41 H. 3. begins in these words, The King Commandeth, that all Bailiffs, She∣riffs, and other Officers, &c. And concerning the Justi∣ces of Chester, the King Willeth, &c. and again, He Commandeth the Treasurer and Barons of the Exche∣quer upon their Allegiance.

The Stat. of Marlborough, 52 Hen. 3. goeth thus: The King hath made these Acts, Ordinances, and Sta∣tutes, which He Willeth to be observed of all his Sub∣jects, high and low.

3 Edw. 1. The Title of this Statute is, These are the ACTS of King EDWARD; and after it follows, The KING hath Ordained these ACTS; and in the first Chapter, The King Forbiddeth and Command∣eth, That none do Hurt, Damage, or Grievance to any Religious Man, or Person of the Church: and in the thirteenth Chapter, The King prohibiteth that none do Ravish or take away by Force, any Maid with∣in Age.

6 Edw. 1. It is said, Our Sovereign Lord the King hath established these Acts, commanding they be observed within his Realm: and in the fourteenth Page  42 Chap. the words are, The King of his special Grace granteth, that the City of London shall recover in an Assise, Damage with the Land.

The Stat. of West. 2. saith, Our Lord the King hath ordained, that the Will of the Giver be observed: and in the 3. Chap. Our Lord the King hath ordain∣ed, that a Woman after the death of her Husband shall recover by a Writ of Entry.

The Stat. of Quo Warranto saith, Our Lord the King at his Parliament, of his special Grace, and for Affection which he beareth to his Prelates, Earls, and Barons, and others, hath granted, that they that have Liberties by Prescription shall enjoy them.

In the Stat. de finibus Levatis, the Kings words are, We intending to provide Remedy in our Parliament, have ordained, &c.

28 Edw. 1. c. 5. The King wills, that the Chan∣cellor, and the Justices of the Bench shall follow Him, so that he may have at all times some near unto him that be learned in the Laws: and in Chap. 24. the words are, Our Lord the King, after full Conference and De∣bate had with his Earls, Barons, Nobles, and other Great men, by their whole Consent, hath ordain∣ed, &c.

The Stat. de Tallagio (if any such Statute there be) speaks in the Kings Person No Officer of Ours; No Tallage shall be taken by Us; We will and Grant.

1 Edw. 2. begins thus, Our Lord the King wil∣leth and Commandeth.

The Stat. of 9. the same King, saith, Our Lord the King, by the Assent of the Prelates, Earls, and other great States, hath Ordained.

Page  4310 Edw. 2. It is provided by our Lord the King and his Justices.

The Stat. of Carlile saith, We have sent our Command in writing firmly to be observed.

1 Edw. 3. begins thus, King Edw. 3. at his Parlia∣ment at the request of the Commonalty by their Petition before him, and his Councel in Parliament, hath grant∣ed, &c. and in the 5th Chap. The King willeth, that no man be charged to arm himself otherwise than he was wont.

5 Ed. 3. Our Lord the King, at the Request of his People, hath established these things, which He Wills to be kept.

9. Of the same King there is this Title, Our Lord the King by the Assent, &c. and by the Advice of his Councel being there, hath ordained, &c.

In his 10. year it is said, Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates, Earls, Barons; also at the shewing of the Knights of the Shires, and his Commons by their Petition put in his Parliament, &c. Hath ordained, by the Assent, &c. at the Request of the said Knights and Commons, &c.

The same year in another Parliament you may find, these be our Articles accorded by Our Lord the King, with the Assent, &c. at the Request of the Knights of the Shires, and the Commons by their Petition put in the said Parliament.

In the year-book 22 Edw. 3.3. pl. 25. It is said, The King makes the Laws by the Assent of the Peers and Commons; and not the Peers and Commons.

The Stat. of 1 Ric. 2. hath this Beginning, Ri∣chard the 2. by the Assent of the Prelates, Dukes, Earls and Barons, and at the Instance and special Request of the Commons, Ordained.

Page  44There being a Statute made 5 Ric. 2. c. 5. against Lollards, in the next year the Commons Petition Him, Supplient les Commons que come un estatute fuit fait, &c. The Commons beseech, that whereas a Statute was made in the last Parliament, &c. which was ne∣ver Assented to, or Granted by the Commons, but that which was done therein was done without their As∣sent, In this Petition the Commons acknowledge it a Statute, and so call it, though they assented not to it.

17 Rich. 2. nu. 44. The Commons desire, some pur∣suing to make a Law which they conceive hurtful to the Commonwealth; that His Majesty will not pass it.

As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Rich. 3. Reigns, the most of them do agree in this one Title, Our Lord the King, by the Advice and Assent of his Lords, and at the special In∣stance and Request of the Commons, hath ordained. The Precedents in this Point are so numerous, that it were endless to cite them.

The Statutes in Hen. 7. days do for the most part agree, both in the Titles and Bodies of the Acts, in these words: Our Lord the King by the Assent of the Lords Spiritual and Temporal, and the Commons in Parliament Assembled, and by the Authority of the same hath ordained.

Unto this King's time we find the Commons very often petitioning, but not petitioned unto. The first Petition made to the Commons that I meet with among the Statutes, is but in the middle of this King Hen. 7. Reign, which was so well ap∣proved, that the Petition it self is turned into a Statute: It begins thus, To the Right Worshipful Commons in this present Parliament Assembled: Page  45 Sheweth to your Discreet Wisdoms, the Wardens of the Fellowship of the Craft of Ʋpholsters within London, &c. This Petition, though it be directed to the Commons in the Title; yet the Prayer of the Peti∣tion is turned to the King, and not to the Com∣mons; for it Concludes, Therefore it may please the Kings Highness, by the Advice of the Lords Spiritual and Temporal, and his Commons in Parliament, &c.

Next for the Statutes of Hen. 8. they do most part agree both in their Titles, and the Bodies of the Acts, with those of his Father King Hen. 7.

Lastly, in the Statutes of Edw. the 6. Qu. Mary, Qu. Elizabeth, K. James, and of our Sovereign Lord the King that now is, there is no mention made in their Titles of any Assent of Lords and Commons, or of any Ordaining by the King, but only in gene∣ral Terms it is said, Acts made in Parliament: or thus, At the Parliament were Enacted: yet in the Bodies of many of these Acts of these last Princes, there is sometimes Mention made of Consent of Lords and Commons, in these or the like words: It is Enact∣ed by the King, with the Assent of the Lords and Com∣mons; Except only in the Statutes of our Lord King Charles, wherein there is no mention, that I can find, of any Consent of the Lords and Commons; or Ordaining by the King: But the words are, Be it Enacted by Authority of Parliament: or else, Be it Enacted by the King, the Lords Spiritual and Tempo∣ral, and Commons; as if they were all Fellow-Com∣missioners.

Thus it appears, that even till the time of K. Ed. 6. who lived but in our Fathers days, it was punctually expressed in every Kings Laws, that the Statutes and Ordinances were made by the King. And withal we Page  46 may see by what degrees the Styles, and Titles of Acts of Parliament have been varied, and to whose disadvantage. The higher we look, the more ab∣solute we find the Power of Kings in Ordaining; nor do we meet with at first so much as the Assent or Advice of the Lords mentioned. Nay, if we cast our eye upon many Statutes of those that be of most Antiquity, they will appear as if they were no Laws at all; but as if they had been made only to teach us, that the punishments of many Officers were left to the meer pleasure of Kings. The puni∣tive part of the Law, which gives all the Vigour and Binding Part to the Law, we find committed by the Statutes to the Kings meer Will and Pleasure, as if there were no Law at all. I will offer a few Precedents to the Point.

3 Edw. 1. c. 9. saith, That Sheriffs, Coroners, and Bayliffs, for concealing of Felonies shall make grievous Fines at the Kings Pleasure.

Chap. 13. Ordains, That such as be found culpable of Ravishing of Women, shall Fine at the Kings plea∣sure.

Chap. 15. saith, The penalty for detaining a Prison∣er that is mainpernable, is a Fine at the Kings plea∣sure, or a grievous Amercement to the King; and, he that shall take Reward for deliverance of such, shall be at the Great Mercy of the King.

Chap. 20. Offenders in Parks or Ponds shall make Fines at the Kings pleasure.

Chap. 25. Committers of Champerty, and Extortio∣ners are to be punished at the Kings pleasure.

Chap. 31. Purveyors, not paying for what they take, shall be Grievously punished at the King's plea∣sure.

Page  47Chap. 32. The King shall punish Grievously the Sheriff, and him that doth maintain Quarrels.

Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary.

7 Edw. 1. saith, Whereas of late, before certain Per∣sons deputed to treat upon Debates between Ʋs and cer∣tain Great Men, it was accorded, that in our next Par∣liament Provision shall be made by Ʋs, and the common Assent of the Prelates, Earls, and Barons, that in all Parliaments for ever, every man shall come without Force and Armour. And now in our next Parliament the Prelates, Earls, Barons, and Commonalty have said, That to US it belongeth, through Our Royal Sig∣nory, straitly to defend Force of Armour at all times, when it shall please Us, and to punish them which shall do otherwise, and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be.

13 Edw. 1. Takers away of Nuns from religious Houses, Fined at the Kings Will.

If by the Default of the Lord that will not avoid the Dike, Ʋnderwoods, and Bushes in High-ways, Mur∣der be done, the Lord shall make Fine at the Kings Pleasure.

28 Edw. 1. If a Gold-Smith be attainted for not Assaying, Touching, and Working Vessels of Gold, he shall be punished by a Ransome at the Kings Plea∣sure.

2 Hen. 4. The Commons desire they may have An∣swer of their Petitions before the Gift of any Subsidy; to which the King answers, He would confer with the Lords, and do what should be best according to their Ad∣vice; and the last day of Parliament He gave this An∣swer, That that manner of Doing had not been Seen, Page  48 nor used in no time of his Progenitors or Predeces∣sors, that they should have any Answer of their Petiti∣ons, or Knowledge of it before they have shewed, and finished all their other Business of Parliament, be it of any Grant, Business, or otherwise, and therefore the King would not in any ways change the Good Customs and Usages made and used of ancient Times.

5 Hen. 4. c. 6. Whereas one Savage did beat and maim one Richard Chedder Esquire, Menial Servant to Tho. Brook, Knight of the Shire for Somerset-shire, the Statute saith, Savage shall make Fine and Ran∣som at the Kings Pleasure.

8 Hen. 4. It is said, POTEST AS PRINCIPIS NON EST INCLƲS A LEGIBƲS, the Power of the Prince is not included in the Laws.

13 Hen. 4. nu. 20. We read of a Restitution in Blood, and Lands of William Lasenby, by the King, by the Assent of the Lords Spiritual, and Commons; omitting the Lords Temporal.

2 Hen. 5. in a Law made, there is a Clause, That it is the Kings Regality to grant or deny such of their Petitions as pleaseth himself.

6 Hen. 6. c. 6. An Ordinance was made for to en∣dure As long as it shall please the King.

11 Hen. 7. c. 1. hath this Law,

The King our Sovereign Lord, calling to his Remembrance the Du∣ty of Allegiance of his Subjects of this his Realm, and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars, for the Defence of Him, and the Land, against every Rebellion, Power, & Might rear∣ed against him, and with him to enter and abide in Service in Battel, if Case so require; and that for the same Service, what Fortune ever fall by chance Page  49 in the same Battel, against the Mind and Will of the Prince (as in this Land some time past hath been seen) that it is not reasonable, but against all Laws, Reason and good Conscience, that the said Subjects, going with their Sovereign Lord in Wars, attending upon Him in His Person, or being in other places by His Commandment within the Land, or without, any thing should lose or forfeit, for doing their true Duty and Service of Allegiance; Be it therefore Enacted, That no Person that shall attend upon the King, and do Him true Service, shall be attainted therefore of Treason, or any other Of∣fence by Act of Parliament, or otherwise.

Also the 18 Chap. of the same year saith,

Where every Subject by the Duty of his Allegiance, is bound∣en to Serve and Assist his Prince and Sovereign Lord at all Seasons, when need shall require, and bound to give attendance upon his Royal Person, to defend the same when He shall fortune to go in Person in War for Defence of the Realm, or against his Re∣bels and Enemies, for the Subduing and Repressing of them and their malicious purpose.

Christopher Wray, Serjeant at Law, chosen Speaker, 13 Eliz. in his Speech to Her Majesty, said, that for the orderly Government of the Common-wealth three things were necessary:

  • 1. Religion.
  • 2. Authority.
  • 3. Law.

By the first, we are taught not only our Duty to God, but to obey the Queen, & that not only in Temporals but in Spirituals, in which Her Power is absolute.

Mr. Grivel in the 35 Eliz. said in Parliament, He wished not the making of many Laws; since the more we Page  50 make, the less liberty we have our selves; Her Majesty not being bound by them.

For further proof that the Legislative Power is proper to the King, we may take notice, that in an∣tient time, as Sir Edward Coke saith, All Acts of Parliament were in form of Petitions: if the Petitions were from the Commons, and the Answer of them the King's, it is easie thereby to judge who made the Act of Parliament: Also Sir Jo. Glanvil affirms, that in former times the course of Petitioning the King was this, The Lords and Speaker, either by Words or Writing, preferr'd their Petition to the King; this then was called the Bill of Commons, which being received by the King, part He received, part He put out, and part He ratified; for as it came from Him, it was drawn into a Law.

Also it appears, that Provisions, Ordinances, and Proclamations, made heretofore out of Parliament, have been always acknowledged for Laws and Sta∣tutes: We have amongst the printed Sta∣tutes,* one called the Statute of Ireland, da∣ted at Westminster, 9 Feb. 14. Hen. 3. which is nothing but a Letter of the King to Gerard Son of Maurice Justicer of Ireland.

The Explanations of the Statute of Gloucester made by the King and His Justices only, were received al∣ways for Statutes, and are still printed with them.

Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester, was Signed under the Great Seal, and sent to the Ju∣stices of the Bench after the manner of a Writ Pa∣tent, with a certain Writ closed, dated by the Kings hand at Westminster, 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing con∣tained Page  51 in it, though the same do not accord with the Stat. of Gloucester in all things.

The Provisions of Merton, made by the King at an Assembly of Prelates, and the greater part of the Earls and Barons, for the Coronation of the King, and his Queen Elenor, are in the Form of a Procla∣mation, and begin, Provisum est in Curia Domini Regis apud Merton.

19 Hen. 3. a Provision was made, de assisa praesen∣tationis, which was continued and allowed for a Law until the Stat. of West. 2. which provides the con∣trary in express words.

In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament, and what out of Parliament: when Kings called Peers only to Parliament, and of those how many, or whom they pleased, (as it appears anciently they did) it was no easie matter to put a difference between a Coun∣cel-Table and a Parliament: or between a Procla∣mation and a Statute: Yet it is most evident, that in old times there was a distinction between the Kings especial or Privy Councel, and his Common Councel of the Kingdom: and His special Councel did sit with the Peers in Parliament, and were of great and ex∣traordinary Authority there.

In the Stat. of Westm. 1. it is said, These are the Acts of King Edw. 1. made at His first Parliament by His Councel, and by the Assent of Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm.

The Stat. of Acton Burnell hath these words: The King for himself, and by His Councel, hath Ordained and Established.

Page  52In articulis super Chartas, when the Great Charter was confirmed at the Request of the Prelates, Earls, and Barons, are found these two provisions:

1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right.

2.

Notwithstanding all these things before-men∣tioned, or any part of them, both the King and his Councel, and all they that were present, will and intend, that the Right and Prerogative of His Crown shall be saved to Him in all things.

The Stat. of Escheators hath this Title, At the Par∣liament of our Sovereign Lord the King, By His Councel it was agreed, and also by the King himself commanded.

1 Ed. 3. where Magna Charta was confirmed, this Preamble is found,

At the request of the Common∣alty, by their Petition made before the King and His Councel in Parliament, by the Assent of the Prelates, Earls, and Barons, &c.

The Statute made at York 9 Ed. 3. goeth thus:

Whereas the Knights, Citizens, and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition, &c. Our Sovereign Lord the King, desiring the profit of his People, By the Assent of His Prelates, Earls, Barons, and other Nobles of His Realm, and by the Advice of His Councel being there, Hath Ordained.

25 Ed. 3. In the Statute of Purveyors, where the King, at the request of the Lords and Commons, made a Declaration what Offences should be adjudged Treason: It is there further said, if per-case any man ride Armed with Men of Arms against any other to slay him, or rob him, It is not the Mind of the King or of his Councel, that in such cases it shall be ad∣judged Treason. By this Statute it appears, that Page  53 even in the Case of Treason, which is the Kings own Cause, as, whereas a man doth compass or imagine the Death of our Lord the King, or a man do wage War against our Lord the King in His Realm, or be adherent to the Kings Enemies in His Realm, giving to them Aid or Comfort in the Realm, or elsewhere; in all these cases it is the Kings Declaration only that makes it to be Treason: and though it be said, that Diffi∣cult points of Treason shall be brought and shewed to the King, and his Parliament, yet it is said, it is the mind of the King and his Councel that determines what shall be adjudged Treason, and what Felony, or Trespass.

27 Edw. 3. The Commons presenting a Petition to the King, which the Kings Councel did mislike, were content thereupon to amend and explain their Petition: the Petition hath these words,

To their most redoubted Sovereign Lord the King, praying your said Commons, that whereas they have prayed him to be discharged of all manner of Articles of the Eyre, &c. which Petition seemeth to his Councel to be prejudicial unto him, and in Disinherison of his Crown if it were so generally granted.
His said Commons not willing nor desiring to demand things of him, or of his Crown perpetually, as of Escheats, &c. But of Trespas∣ses, Misprisions, Negligences, Ignorances, &c.

And as in Parliaments the Kings Councel were of Supereminent Power, so out of Parliament Kings made great Use of them.

King Edw. 1. finding that Bogo de Clare was dis∣charged of an Accusation brought against him in Par∣liament, commanded him nevertheless to appear be∣fore him and his Councel, ad faciendum & reci∣piendum quod per Regem & ejus Concilium fuerit Page  54 faciendum, and so proceeded to the Examination of the whole Cause, 8 Edw. 1.

Edw. 3. In the Star-chamber (which was the ancient Councel-table at Westminster) upon the complaint of Eliz. Audley, commanded James Aud∣ley to appear before Him and His Councel; and de∣termined a Controversie between them, touching Land contained in her Jointure, Rot. claus. de An. 41 Edw. 3.

Hen. 5. In a Suit before Him and His Councel, For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent, took order for the Seque∣string the Profits till the Right were tried.

Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London, till they had other Commandment from Him and His Councel, 34 Hen. 6. rot. 37. in Banco.

Edw. 4. and his Councel, in the Star-chamber heard the Cause of the Master and poor Brethren of Saint Leonards in York, complaining that Sir Hugh Hastings, and others, withdrew from them a great part of their Living, which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York, Westmorland, Cumber∣land, and Lancashire, Rot. pat. de an. 8. Edw. 4. part 3. memb. 14.

Hen. 7. and his Councel, in the Star-chamber, de∣creed, that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow, for Lands in Wolwich and Plumsted in Kent, foras∣much as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King, 1 H. 7.

Page  55In the time of Hen. 3. an Order or Provision was made by the Kings Councel, and it was pleaded at the Common Law in Bar to a Writ of Dower; the Plaintiffs Attorney could not deny it, and thereupon the Judgment was, ideo sine die. It seems in those days an Order of the Kings Councel, was either parcel of the Common Law, or above it.

Also we may find, the Judges have had Regard, that before they would resolve or give Judgment in new Cases, they consulted with the King's Privy Councel.

In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster, the Judges would have the Advice of the Kings Councel: for in a like Case, because R. C. did strike a Juror at Westminster which passed against one of his Friends, It was adjudged by all the Coun∣cel that his right hand should be cut off, and his Lands and Goods forfeited to the King.

Green and Thorp were sent by the Judges to the Kings Councel, to demand of them whether by the Stat. of 14 Edw. 3.16. a word may be amended in a Writ; and it was answered that a word may be well amended, although the Stat. speaks but of a Letter or Syllable.

In the Case of Sir Thomas Ogthred, who brought a Formedon against a poor man and his Wife; they came and yielded to the Demandant, which seemed suspitious to the Court; whereupon Judgment was staid, and Thorp said that in the like Case of Giles Blacket it was spoken of in Parliament, and we were commanded that when any like should come we should not go to Judgment without good Advice; therefore the Judges Conclusion was, Sues au coun∣sell Page  56 & comment ils voilent que nous devomus faire, nous volums faire, & autrement ment en cest case; sue to the Councel, and as they will have us to do, we will do; and otherwise not in this Case, 39 Edw. 3.

Thus we see the Judges themselves were guided by the Kings Councel, and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law.

All the Judges of the Realm, Barons of Ex∣chequer, of the Quoif; the Kings learned Coun∣cel, and the Civilians, Masters of Chancery, are called Temporal Assistants by Sir Edw. Coke, and though he deny them Voices in Parliament, yet he confesseth, that by their Writ they have power both to treat, and to give Counsel. I cannot find that the Lords have any other Power by their Writ: the Words of the Lords Writ are, That you be present with us the Prelates, Great men, and Peers, to treat and give your Counsel: The Words of the Judges Writ are, That you be present with Ʋs, and others of the Councel (and sometimes with Ʋs only) to treat and give your Counsel.

The Judges usually joined in Committees with the Lords in all Parliaments, even in Queen Eliz. Reign, until her 39th. Year; and then upon the 7th. of November, the Judges were appointed to attend the Lords. And whereas the Judges have liberty in the upper House it self, upon leave given them by the L. Keeper, to cover themselves, now at Committees they sit always uncovered.

The Power of Judges in Parliament is best understood, if we consider how the judicial Pow∣er of Peers hath been exercised in matter of Judi∣cature: we may find it hath been the Practice, Page  57 that though the Lords in the Kings Absence give Judgment in Point of Law, yet they are to be directed and regulated by the Kings Judges, who are best able to give Direction in the difficult Points of the Law; which ordinarily are un∣known to the Lords. And therefore, if any Er∣rour be committed in the Kings Bench, which is the highest ordinary Court of Common Law in the Kingdom, that Errour must be redressed in Parliament. And the manner is, saith the Lord Chancellor Egerton, If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges in the Kings Bench, the Lords of the higher House alone, (without the Commons) are to examine the Errours. The Lords are to proceed according to the Law, and for their Judgments therein they are to be informed by the Advice and Councel of the Judges, who are to inform them what the Law is, and to direct them in their Judgment; for the Lords are not to follow their own Discretion or Opinion otherwise.

28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk, should be committed to Prison for many Treasons, and other Crimes; the Lords of the higher House were doubtful what Answer to give; the Opinion of the Judges was demanded, their Opini∣on was, that he ought not to be committed, for that the Commons did not charge him with any particular Of∣fence, but with general Reports and Slanders: this Opinion was allowed.

31 Hen. 6. A Parliament being prorogued, in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass, and committed to Prison in Execution for the same: when the Parliament Page  58 was re-assembled, the Commons made Sute to the King and Lords, to have their Speaker delivered. The Lords demanded the Opinion of the Judges, whether he might be delivered out of Prison by Pri∣vilege of Parliament; upon the Judges Answer it was concluded, that the Speaker should remain in Pri∣son according to the Law, notwithstanding the Privilege of Parliament, and that he was Speaker; which Reso∣lution was declared to the Commons by Moyle the Kings Serjeant at Law, and the Commons were com∣manded in the Kings name by the Bishop of Lincoln (in the absence of the Arch-bishop of Canterbury, then Chancellor) to chuse another Speaker.

7 Hen. 8. A Question was moved in Parliament, Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes? there Sir John Fineux, and the other Judges delivered their Opinion, that they might and ought to be; and their Opinion al∣lowed and maintained by the King and Lords, and Dr. Standish, who before had holden the same Opinion, was delivered from the Bishops.

I find it affirmed, that in Causes which receive De∣termination in the House of Lords, the King hath no Vote at all, no more than in other Courts of ministerial Jurisdiction. True it is, the King hath no Vote at all, if we understand by Vote a Voice among others: for he hath no partners with him in giving Judge∣ment. But if by no Vote is meant He hath no Pow∣er to judge; we despoil him of his Sovereignty: It is the chief Mark of Supremacy to judge in the highest Causes, and last Appeals. This the Chil∣dren of Israel full well understood, when they peti∣tioned for a King to judge them; if the dernier resort be to the Lords alone, then they have the Suprema∣cy. Page  59 But as Moses by chusing Elders to judge in small Causes, did not thereby lose his Authority to be Judge himself when he pleased, even in the smallest Matters; much less in the greatest, which he reser∣ved to himself: so Kings by delegating others to judg under them, do not hereby denude themselves of a Power to judge when they think good.

There is a Distinction of these times, that Kings themselves may not judge, but they may see and look to the Judges, that they give Judgment according to Law; and for this Purpose only (as some say) Kings may sometimes sit in the Courts of Justice. But it is not possible for Kings to see the Laws exe∣cuted, except there be a Power in Kings both to judge when the Laws are duly executed, and when not; as also to compel the Judges if they do not their Duty. Without such Power a King sitting in Courts is but a Mockery, and a Scorn to the Judges. And if this Power be allowed to Kings, then their Judgments are supream in all Courts. And indeed our Common Law to this purpose doth presume that the King hath all Laws within the Cabi∣net of His Breast, in Scrinio pectoris, saith Campton's Jurisdiction. 108.

When several of our Statutes leave many things to the Pleasure of the King, for us to interpret all those Statutes of the Will and Pleasure of the Kings Justices, only, is to give an absolute Arbitrary Power to the Ju∣stices in those Cases wherein we deny it to the King.

The Statute of 5 Hen. 4. c. 2. makes a Difference between the King, and the Kings Justices, in these words, Divers notorious Felons be indicted of divers Felonies, Murders, Rapes: and as well before the Kings Justices, as before the King himself, arraigned of the same Felonies.

Page  60I read, that in An. 1256. Hen. 3. sate in the Ex∣chequer, and there set down Order for the Appearance of Sheriffs, and bringing in their Accounts; there was five Marks set on every Sheriffs Head for a Fine, be∣cause they had not distrained every Person that might dispend fifteen pounds Lands by the Year, to receive the Order of Knighthood, according as the same Sheriffs were commanded.

In Michaelmas Term, 1462. Edw. 4. sate three days together in open Court in the Kings Bench.

For this Point there needs no further Proofs, be∣cause Mr. Pryn doth confess, that Kings themselves have sate in Person in the Kings Bench, and other Courts, and there given Judgment, p. 32. Treachery and Dis∣loyalty, &c.

Notwithstanding all that hath been said for the Legislative and Judicial Power of Kings, Mr. Pryn is so far from yielding the King a Power to make Laws, that he will not grant the King a Power to hinder a Law from being made; that is, he allows Him not a Negative Voice in most Cases, which is due to every other, even to the mean∣est Member of the House of Commons in his Judg∣ment.

To prove the King hath not a Negative Voice, his main, and in Truth, his only Argument insisted on, is a Coronation-Oath, which is said anciently some of our Kings of England have taken, wherein they grant to defend and protect the just Laws and Customs, which the Vulgar hath, or shall chuse: Justas Leges & Consuetudines quas Vulgus elegerit: hence Mr. Pryn concludes, that the King cannot deny any Law which the Lords and Commons shall make Choice of; for so he will have vulgus to signifie.

Page  61Though neither our King, nor many of his Pre∣decessors ever took this Oath, nor were bound to take it, for ought appears; yet we may admit that our King hath taken it; and answer, we may be confident, that neither the Bishops, nor Privy Councel, nor Parliament, nor any other, whoso∣ever they were, that framed or penn'd this Oath, ever intended in this word Vulgus, the Commons in Parliament, much less the Lords: they would ne∣ver so much disparage the Members of Parliament, as to disgrace them with a Title both base and false: it had been enough, if not too much, to have called them Populus, the People; but Vulgus the Vulgar, the rude multitude (which hath the Epi∣thet of Ignobile Vulgus) is a word as dishonoura∣ble to the Composers of the Oath to give, or for the King to use, as for the Members of the Parlia∣ment to receive; it being most false: for the Peers cannot be Vulgus, because they are the prime Per∣sons of the Kingdom: next, the Knights of the Shires are, or ought to be notable Knights, or no∣table Esquires, or Gentlemen born in the Counties, as shall be able to be Knights: then the Citizens and Bur∣gesses are to be most sufficient, none of these can be Vulgus: even those Free-holders that chuse Knights, are the best and ablest men of their Coun∣ties; there being for every Free-holder, above ten of the Common People to be found to be termed the Vulgar: Therefore it rests that Vulgus must signifie the vulgar or common People, and not the Lords and Commons.

But now the Doubt will be, what the Com∣mon People, or Vulgus, out of Parliament, have to do to chuse Laws? The Answer is easie and ready; Page  62 there goeth before quas vulgus, the Antecedent Con∣suetudines, that is, the Customs which the Vulgar hath, or shall chuse. Do but observe the Nature of Custom, and it is the Vulgus or Common People only who chuse Customs: Common Usage time out of mind creates a Custom; and the commoner an Usage is, the stronger and the better is the Custom: no where can so common an Usage be found, as among the Vulgar, who are still the far greatest part of every Multitude: if a Custom be common through the whole Kingdom, it is all one with the Com∣mon Law in England, which is said to be Common Custom. Thus in plain terms, to protect the Customs which the Vulgar chuse, is to swear to protect the Com∣mon Laws of England.

But grant that Vulgus in the Oath, signifies Lords and Commons, and that Consuetudines doth not sig∣nifie Customs, but Statutes, (as Mr. Pryn, for a de∣sperate Shift affirms) and let elegerit be the Future, or Preterperfect Tense, even which Mr. Pryn please, yet it cannot exclude the Kings Negative Voice; for as Consuetudines goeth before quas vulgus, so doth justas stand before leges & consuetudines: so that not all Laws, but only all just Laws are meant. If the sole Choice of the Lords and Commons did oblige the King to protect their Choice, without Power of Denial, what Need, or why is the Word justas put in, to raise a Scruple that some Laws may be unjust? Mr. Pryn will not say that a Decree of a General Councel, or of a Pope is infallible, nor (I think) a Bill of the Lords and Commons is infallible, just, and impossible to erre; if he do, Sir Edward Coke will tell him, that Parliaments have been utterly deceived, and that in cases of greatest Moment, even in Page  63 case of High Treason: and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess, that Laws chosen by the Lords and Commons may be unjust, so that the Lords and Com∣mons themselves may be the Judges of what is just or unjust. But where the King by Oath binds his Conscience to protect just Laws, it concerns him to be satisfied in his own Conscience, that they be just, and not by an implicit Faith, or blind Obedience: no man can be so proper a Judge of the Justness of Laws, as he whose Soul must lye at the Stake for the Defence and Safeguard of them.

Besides, in this very Oath the King doth swear, to do equal and right Justice and Discretion, in Mercy and Truth in all His Judgments: facies fieri in omni∣bus judiciis tuis aequam & rectam justitiam & discreti∣onem in Misericordia & Veritate: if we allow the King Discretion and Mercy in his Judgments, of Ne∣cessity he must judge of the Justness of the Laws.

Again, the clause of the Oath, quas vulgus ele∣gerit, doth not mention the Assenting unto, or grant∣ing any new Laws, but of holding, protecting, and strengthening with all his Might, the just Laws that were already in Being: there were no need of Might or Strength, if assenting to new Laws were there meant.

Some may wonder, why there should be such Labouring to deny the King a negative Voice, since a negative Voice is in it self so poor a thing, that if a man had all the Negative Voices in the Kingdom, it would not make him a King; nor give him Power to make one Law: a Negative Voice is but a privative Power, that is, no Power at all to do or act Page  64 any thing; but a Power only to hinder the Power of another. Negatives are of such a malignant or destructive Nature, that if they have nothing else to destroy, they will, when they meet, destroy one another, which is the reason why two Negatives make an Affirmative, by destroying the Negation which did hinder the Affirmation. A King with a Negative Voice only, is but like a Syllogism of pure negative Propositions, which can conclude nothing. It must be an Affirmative Voice that makes both a King, and a Law, and without it there can be no imaginable Government.

The Reason is plain why the Kings Negative Voice is so eagerly opposed; for though it give the King no Power to do any thing; yet it gives him a Power to hinder others: though it cannot make him a King, yet it can help him to keep others from being Kings.

For Conclusion of this Discourse of the negative Voice of the King, I shall oppose the Judgment of a Chief Justice of England; to the Opinion of him that calls himself an utter Barrister of Lincolns Inn, and let others judge who is the better Lawyer of the two: the words are Bracton's, but concern Mr. Pryn to lay them to heart; Concerning the Charters and Deeds of Kings, the Justices nor private men neither ought, nor can dispute; nor yet if there rise a Doubt in the Kings Charter, can they interpret it; and in doubtful and ob∣scure Points, or if a word contain two Senses, the In∣terpretation, and Will of our Lord the King is to be ex∣pected, seeing it is His part to interpret, who makes the Charter: full well Mr. Pryn knows, that when Bra∣cton writ, the Laws that were then made, and stri∣ved for, were called the Kings Charters, as Magna Charta, Charta de Foresta, and others: so that in Page  65Bracton's Judgment the King hath not only a Negative Voice to hinder, but an Affirmative, to make a Law, which is a great deal more than Master Pryn will allow him.

Not only the Law-maker, but also the sole Judge of the People is the King, in the Judgment of Bracton; these are his words: Rex & non alius debet judicare, si solus ad id sufficere possit, the King and no other ought to judge, if He alone were able. Much like the words of Bracton, speaketh Briton, where, after that he had shewed that the King is the Vice-roy of God, and that he hath distributed his Charge into sundry portions, because He alone is not sufficient to hear all Complaints of his People, then he ad∣deth these words, in the Person of the King: Nous volons que nostre jurisdiction soit sur touts Jurisdicti∣ons, &c. We Will that Our Jurisdiction be above all the Jurisdictions of Our Realm, so as in all manner of Felonies, Trespasses, Contracts, and in all other Actions Personal or Real, We have Power to yield, or cause to be yielded, such Judgments as do appertain without other Process, wheresoever we know the right Truth as Judges.

Neither was this to be taken, saith Mr. Lambard, to be meant of the Kings Bench, where there is only an imaginary presence of His Person, but it must ne∣cessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast, distinct from that of His Bench, and other ordinary Courts; be∣cause he doth immediately after, severally set forth by themselves, as well the Authority of the Kings Bench, as of the other Courts.

And that this was no new-made Law, Mr. Lam∣bard puts us in mind of a Saxon Law of King Ed∣gar's. Page  66Nemo in lite Regem appellato, &c. Let no man in Suit appeal unto the King, unless he cannot get Right at home, but if that Right be too Heavy for him, then let him go to the King to have it eased. By which it may evidently appear, that even so many years ago there might be Appellation made to the Kings Person, when∣soever the Cause should enforce it.

The very like Law in Effect is to be seen in the Laws of Canutus the Dane, sometimes King of this Realm, out of which Law Master Lambard gathers, that the King himself had a High Court of Justice, wherein it seemeth He sate in Person; for the words be, Let him not seek to the King, and the same Court of the King did judge not only according to meer Right and Law, but also after Equity and good Conscience.

For the Close, I shall end with the Suffrage of our late Antiquary Sir Henry Spelman, in his Glos∣sary, he saith, Omnis Regni Justitia solius Regis est, &c. All Justice of the Kingdom is only the King's, and He alone, if He were able, should administer it; but that being impossible, He is forced to delegate it to Ministers, whom he bounds by the limits of the Laws; the posi∣tive Laws are only about Generals; in particular Ca∣ses, they are sometimes too strict, sometimes too remiss; and so, oft Wrong instead of Right will be done, if we stand to strict Law: also Causes hard and difficult dai∣ly arise, which are comprehended in no Law-books, in those there is a necessity of running back to the King, the Fountain of Justice, and the Vicegerent of God himself, who in the Commonwealth of the Jews took such Causes to His own cognisance, and left to Kings not only the Ex∣ample of such Jurisdiction, but the Prerogative also.

Page  67

Of Privilege of Parliaments.

WHat need all this ado, will some say, to sift out what is comprised in the Writ for the Election of the Commons to Parliament, since it is certain, though the Writ doth not, yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses? It is answered, that what slight Esteem soever be made of the Writ, yet in all other cases the Original Writ is the Foundation of the whole busi∣ness, or action: and to vary in Substance from the Writ, makes a Nullity in the Cause, and the Proceedings thereupon: and where a Commissioner exerciseth more Power than is warranted by his Commission, eve∣ry such Act is void, and in many Cases punishable: yet we will lay aside the Writ, and apply our selves to consider the Nature of Privilege of Parliament. The Task is the more difficult, for that we are not told what the number of Privileges are, or which they be; some do think that as there be dormant Articles of Faith in the Roman Church, which are not yet decla∣red; so there be likewise Privileges dor∣mant in the House of Commons, not yet Page  68 revealed, we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament, and to confine our selves to these three points:

  • 1. That Privilege of Parliament gives no Power; but only helps to the execution of the Power given by the Writ.
  • 2. That the Free-holders by their Electi∣ons give no Privilege.
  • 3. That Privilege of Parliament is the Gift of the King.

First, The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act, not warranted by the Writ: but they are intended as Helps only to enable to the Performance of the Duty enjoyned, and so are subservient to the Power comprised in the Writ: For Instance, the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act; but by taking away from the Free-holders and other Subjects the Power of Arrests, the Commons are the better inabled to attend the Service to which they are called by the King.

In many other Cases the Servants, or Ministers of the King are privileged, and protected much in the same Nature. The Page  69 Servants in Houshold to the King may not be arrested without special Licence: Also the Officers of the Kings Courts of Justice, having a Privilege not to be sued in any other Court but where they serve and at∣tend; and to this Purpose they are allowed a Writ of Privilege. Likewise all such as serve the King in his Wars, as are imployed on Foreign Affairs for him, are protected from Actions and Sutes. Nay the King's Prote∣ction descends to the privileging even of Laundresses, Nurses, and Midwives, if they attend upon the Camp, as Sir Edward Coke saith, quia Lotrix, seu Nutrix, seu obstetrix. Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid.

These sorts of Protections are Privileges the Common Law takes Notice of, and allows: and hath several Distinctions of them; and some are Protections, quia profe∣cturus, and others are, quia moraturus: some are with a Clause of Volumus for Stay of Suits: others with a Clause of Nolumus for the Safety of mens Persons, Servants, and Goods: and the King's Writs do vary herein according to the Nature of the Bu∣siness.

But none of these Privileges or Protecti∣ons do give any Power; they are not po∣sitive,Page  70 but privative: they take away and deprive the Subject of the Power, or Li∣berty to arrest, or sue, in some cases only; no Protection or Privilege doth defend in point of Treason, Felony, or Breach of the Peace: Privileges are directly contrary to the Law, for otherwise they should not be Privileges, and they are to be interpreted in the strictest manner, as being odious and contrary to Law: we see the Use of Privi∣leges; they do but serve as a Dispensation against Law, intended originally, and prin∣cipally for the expediting of the Kings Busi∣ness; though secondarily, and by accident there do sometimes redound a Benefit by them to the Parties themselves that are pro∣tected. Strictly, and properly every Privi∣lege must be against a publick or common Law, for there is no Use or Need of a pri∣vate Law to protect, where there is no pub∣lick Law to the contrary: Favours and Gra∣ces which are only besides, and not against the Law, do not properly go under the name of Privileges, though common Use do not distinguish them: I know no other Privilege that can be truly so called, and to belong to the House of Commons, which is so vast and great, as this Privilege of their Persons, Servants, and Goods: this being indeed against the Common Law, Page  71 and doth concern the whole Kingdom to take notice of it, if they must be bound by it.

Touching this grand Privilege of Free∣dom from Arrests, I read, that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it, until the Lords referred the Punish∣ment thereof to the Lower House. The Case is thus reported, George Ferrers Gen∣tleman, Servant to the King, and Burgess for Plymouth, going to the Parliament-House was arrested in London, by Process out of the Kings Bench for Debt, wherein he had before been condemned as Surety for one Welden, at the Sute of one White: which Arrest, signified to Sir Thomas Moyl, Speaker, and to the rest; the Serjeant (called Saint-Johns) was sent to the Counter in Bread∣street to demand Ferrers: The Officer of the Counter refused to deliver him, and gave the Serjeant such ill Language, that they fall to an Affray: the Sheriff coming, taketh the Officers part, the Serjeant returned without the Prisoner: This being related to the Speaker and Burgesses, they would sit no more without their Burgess; and rising, re∣paired to the Upper House, where the Case was declared by the Speaker before Sir Tho∣mas Audley Chancellor, and the Lords and Page  72 Judges there assembled, who judging the Contempt to be very great, referred the Pu∣nishment thereof to the House of Commons it self.

This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Com∣mons; he cannot, or at least he doth not, so much as name any other in his Section of the Privileges of Parliament: neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons; which may cause a Doubt that this sole Privilege is not so clear as ma∣ny do imagine. For in a Parliament in the 27 Eliz. Richard Coke, a Member, being served with a Subpoena of Chancery, the Lord Chancellor thought the House had no such Pri∣vilege for Subpoena's as they pretended; nei∣ther would he allow of any Precedents of the House committed unto them, formerly used in that Behalf, unless the House of Commons could also prove the same to have been likewise thereupon allowed, and ratified also by Precedents in the Court of Chancery.

In the 39 of Eliz. Sir Edw. Hobby, and Mr. Brograve, Attorney of the Dutchy, were sent by the House to the Lord Keeper, in the name of the whole House, to require his Lordship to Page  73 revoke two Writs of Subpoena's, which were served upon M. Th. Knevit, a Member of the House, since the Beginning of Parliament. The Lord Keeper demanded of them whe∣ther they were appointed by any advised Consideration of the House, to deliver this Message unto him with the word Required, in such manner as they had done, or no: they answered his Lordship, yea: his Lord∣ship then said, as he thought reverently and honourably of the House, and of their Li∣berties, and Privileges of the same, so to revoke the said Subpoena's in that sort, was to restrain Her Majesty in Her greatest Power, which is, Justice in the Place wherein he serveth under Her, and therefore he concluded, As they had required him to revoke his Writ, so he did require to deliberate.

Upon the 22 of February, being Wednes∣day, 18 Eliz. Report was made by Mr. At∣torney of the Dutchy, upon the Committee, for the delivering of one Mr. Hall's man; that the Committee found no Precedent for setting at large by the Mace any Person in Ar∣rest but only by Writ, and that by divers Precedents of Records perused by the said Committee, it appeareth that every Knight, Citizen, or Burgess, which doth require Pri∣vilege, hath used in that case to take a Corporal Oath before the Lord Chancel∣lor, Page  74 or Lord Keeper, that the party for whom such Writ is prayed, Came up with him, and was his Servant at the time of the Arrest made. Thereupon M. Hall was mo∣ved by the House to repair to the Lord Keeper, and make Oath, and then take a Warrant for a Writ of Privilege for his Ser∣vant.

It is accounted by some to be a Privi∣lege of Parliament to have power to Exa∣mine Misdemeanours of Courts of Justice, and Officers of State: yet there is not the mean∣est Subject but hath liberty, upon just cause, to question the misdemeanour of any Court or Officer, if he suffer by them; there is no Law against him for so doing; so that this cannot properly be called a Privilege, be∣cause it is not against any publick Law: It hath been esteemed a great Favour of Prin∣ces to permit such Examinations: For, when the Lords were displeased with the Great∣ness of Pierce Gaveston, it is said, that in the next Parliament, the whole Assembly ob∣tain of the King to draw Articles of their Grievances, which they did. Two of which Articles were, First, that all Strangers should be banished the Court and Kingdom: of which Gaveston was one. Secondly, that the busi∣ness of the State should be treated of by the Councel of the Clergy and Nobles.

Page  75In the Reign of King Henry the sixth, one Mortimer, an Instrument of the Duke of York, by promising the Kentish men a Reformation, and freedom from Taxations, wrought with the people, that they drew to a Head, and made this Mortimer (other∣wise Jack Cade) their Leader: who styled himself Captain Mend-all: He presents to the Parliament the Complaints of the Com∣mons, and he petitions that the Duke of York and some other Lords might be recei∣ved by the King into favour, by the undue Practices of Suffolk and his Complices, com∣manded from his Presence; and that all their Opposites might be banished the Court, and put from their Offices, and that there might be a general amotion of cor∣rupt Officers: These Petitions are sent from the Lower House to the Ʋpper, and from thence committed to the Lords of the Kings Privy Councel, who, having examined the particulars, explode them as frivolous, and the Authors of them to be presumptuous Re∣bels.

Concerning Liberty, or freedom of Speech, I find, that at a Parliament at Black Friars in the 14 of Henry the Eighth, Sir Tho. More being chosen Speaker of the House of Com∣mons: He first disabled himself, and then pe∣titioned the King, that if in Communication Page  76 and Reasoning, any man in the Commons House should speak more largely than of Duty they ought to do, that all such Offences should be par∣doned, and to be entred of Record; which was granted. It is observable in this Petition, that Liberty or Freedom of Speech is not a Power for men to speak what they will, or please, in Parliament; but a Privilege not to be punished, but pardoned for the Offence of speaking more largely than in Duty ought to be; which in an equitable Construction must be understood of rash, unadvised, ignorant, or negligent Escapes, and Slips in Speech: and not for wilful, malicious Offences in that kind; And then the Pardon of the King was desired to be upon Record, that it might be pleaded in Bar to all Actions. And it seemeth that Ric. Strood and his Complices, were not thought sufficiently protected for their free Speech in Parliament, unless their Pardon were confirmed by the King in Par∣liament; for there is a printed Statute to that Purpose in Hen. Eighth's time.

Touching the freedom of Speech, the Com∣mons were warned in Qu. Eliz. days not to meddle with the Queens Person, the State, or Church-government. In her time the Discipline of the Church was so strict, that the Litany was read every morning in the House of Com∣mons, during the Parliament, and when the Page  77 Commons first ordered to have a Fast in the Temple, upon a Sunday, the Queen hindred it.

21 Jan. Saturday, 23 Eliz. the Case is thus reported: Mr. Peter Wentworth moveth for a Publick set Fast, and for a Preaching every morning at 7 of the clock, before the House sate: the House was divided about the Fast, 115 were for it, and an 100 against it; it was ordered, that as many of the House as conveni∣ently could, should on Sunday fortnight after, Assemble, and meet together in the Temple-Church, there to hear Preaching, and to joyn to∣gether in Prayer, with Humiliation and Fasting, for the Assistance of God's Spirit in all their Con∣sultations, during this Parliament, and for the Preservation of the Queens Majesty and Her Realms: And the Preachers to be appointed by the Privy Councel that were of the House, that they may be Discreet, not medling with Innova∣tion or Ʋnquietness. This Order was followed by a Message from Her Majesty to the House, declared by Mr. Vice-chamberlain, that Her Highness had a great Admiration of the rashness of this House, in committing such an apparent Contempt of her express Command, as to put in execution such an Innovation, without Her pri∣vity, or pleasure first known. Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty, acknow∣ledging the said Offence and Contempt, cra∣ving a Remission of the same, with a full Page  78 purpose to forbear the Committing of the like hereafter: and by the Consent of the whole House, Mr. Vice-Chamberlain carried their Submission to her Majesty.

35 Eliz. Mr. Peter Wentworth, and Sir Henry Bromley delivered a Petition to the Lord Keeper, desiring the Lords of the Up∣per House to be Suppliants with them of the Lower House, unto her Majesty, for entail∣ing the Succession of the Crown. Whereof a Bill was ready drawn by them. Her Maje∣sty was highly displeased herewith, as con∣trary to her former strait Command, and charged the Councel to call the Parties be∣fore them: Sir Thomas Henage sent for them, and after Speech with them, commanded them to forbear the Parliament, and not to go out of their several Lodgings; after, they were called before the Lord Treasurer, the Lord Buckhurst, and Sir Thomas Henage; Mr. Wentworth was committed by them to the Tower, Sir Henry Bromley, with Mr. Richard Stephens, to whom Sir Henry Brom∣ley had imparted the Matter, were sent to the Fleet, as also Mr. Welch, the other Knight for Worcestershire.

In the same Parliament, Mr. Morrice, At∣torney of the Court of Wards, moved against the hard Courses of the Bishops, Or∣dinaries, and other Ecclesiastical Judges in Page  79 their Courts, used towards sundry Learned, and godly Ministers and Preachers; and spake against Subscriptions and Oaths; and offer'd a Bill to be read against Imprison∣ment for refusal of Oaths: Mr. Dalton op∣posed the Reading of it, as a thing expresly against Her Majesties Command, to med∣dle in: Doctor Lewin shewed, that Subscri∣ption was used even at Geneva: At two of the clock the same day, the Speaker, Mr. Coke, (afterwards Sir Edward Coke) was sent for to the Court, where the Queen Her self gave him in Command a Message to the House: She told him, It being wholly in Her Power to Call, to Determine, to Assent, or Dissent to any thing done in Parliament: that the Calling of This was only, that the Ma∣jesty of God might be more religiously observed, by compelling, by some sharp Laws, such as neglect that Service: and that the Safety of Her Majesties Person, and the Realm might be provided for: It was not meant they should meddle with Matters of State, or Causes Ec∣clesiastical, (for so Her Majesty termed them) she wondred that any could be of so high Com∣mandement, to attempt (they were Her own words) a thing so expresly contrary to that which she had commanded: wherefore with this She was highly offended: And be∣cause the words spoken by my Lord Keeper are Page  80 not now perhaps well remembred, or some be now here that were not then present. Her Ma∣jesties present Charge and express Command is, that no Bill touching the said matter of State, or Reformation in Causes Ecclesiastical, be ex∣hibited; and upon my Allegiance (saith Mr. Coke) I am charged, if any such Bill be ex∣hibited, not to read it. I have been credibly informed, that the Queen sent a Messen∣ger, or Serjeant at Arms, into the House of Commons, and took out Mr. Morrice, and committed him to Prison: within few days after, I find Mr. Wroth moved in the House, that they might be humble Suitors to Her Majesty, that She would be pleased to set at liberty those Members of the House that were restrained. To this it was an∣swered by the Privy Counsellors, That Her Majesty had committed them for Causes best known to Her self, and to press Her High∣ness with this Suit, would but hinder them whose Good is sought: that the House must not call the Queen to account for what she doth of Her Royal Authority: that the Causes for which they are restrained may be High and Dange∣rous: that Her Majesty liketh no such Questi∣ons; neither doth it become the House to search into such matters.

In the 39 Eliz. The Commons were told their Privilege was Yea, and No: and that Page  81 Her Majesties Pleasure was, that if the Speak∣er perceived any idle Heads which would not stick to hazard their own Estates; which will meddle with reforming the Church, and transforming the Commonweal, and do exhi∣bit Bills to that purpose; the Speaker should not receive them till they were viewed and considered by those, whom it is fitter should consider of such things, and can better judge of them: and at the end of this Parliament, the Queen refused to pass 48 Bills which had passed both Houses.

In the 28 of Eliz. the Queen said, She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk, a thing impertinent for the House to deal withal, and only belonging to the Office and Charge of the Lord Chancellor, from whom the Writs is∣sue and are returned.

4 Hen. 4. The 10 of October, the Chancel∣lor before the King declared, the Commons had sent to the King, praying him that they might have Advice, and Communication with certain Lords about Matters of Business in Par∣liament, for the common good of the Realm: which Prayer Our Lord the King graciously granted, making Protestation, he would not do it of Du∣ty, nor of Custom, but of his special Grace at this time: and therefore Our Lord the King charged the Clerk of the Parliament, that this Page  82 Protestation should be entred on Record upon the Parliament-Roll: which the King made known to them by the Lord Say, and his Secretary; how that neither of Due nor of Custom, our Lord the King ought to grant any Lords to enter into Communication with them, of Matters touching the Parliament; but by his special Grace at this time he hath granted their Request in this Particular: upon which mat∣ter, the said Steward and Secretary made Report to the King in Parliament; that the said Commons knew well that they could not have any such Lords to commune with them, of any Business of Parliament, without spe∣cial Grace and Command of the King Him∣self.

It hath heretofore been a question, whe∣ther it be not an Infringing, and Prejudice to the Liberties and Privileges of the House of Commons, for them to joyn in Conference with the Lords in Cases of Benevolence, or Contribution, without a Bill.

In the 35 Eliz. on Tuesday the first of March, Mr. Egerton, Attorney General, and Doct. Cary came with a Message from the Lords; their Lordships desired to put the House in remembrance of the Speech deli∣vered by the Lord Keeper, the first day, for Consultation and Provision of Treasure, to be had against the great and imminent Dan∣gers Page  83 of the Realm; thereupon their Lord∣ships did look to have something from the Houses, touching those Causes before this time (and yet the Parliament had sate but three days, for it began Feb. 26.) and therefore their Lordships had hitherto omit∣ted to do any thing therein themselves. And thereupon their Lordships desired, that ac∣cording to former laudable Usages between both Houses in such like Cases, a Commit∣tee of Commons may have Conference with a Committee of Lords, touching Provision of Treasure against the great Dangers of the Realm, which was presently resolved by the whole House, and they signified to their Lordships the willing, and ready Assent of the whole House. At the Meeting, the Lords negatively affirm, not to assent to less than three Subsidies, and do insist for a se∣cond Conference. M. Francis Bacon yield∣ed to the Subsidy, but opposed the joyn∣ing with the Lords, as contrary to the Pri∣vileges of the House of Commons; there∣upon the House resolved to have no Con∣ference with the Lords, but to give their Lordships most humble and dutiful Thanks with all Reverence for their favourable and courteous Offer of Conference, and to signifie, that the Commons cannot in those Cases of Benevolence, or Contribution joyn Page  84 in Conference with their Lordships, with∣out Prejudice to the Liberties and Privileges of the House: and to request their Lordships to hold the Members of this House excused in their Not assenting to their Lordships said Motion for Conference, for that so to have Assented without a Bill, had been contrary to the Liberties and Privileges of this House, and also contrary to the former Precedents of the same House in like cases had. This Answer delivered to the Lords by the Chancellor of the Exchequer, their Lordships said, they well hoped to have had a Conference accor∣ding to their former Request, and desir'd to see those Precedents by which the Commons seem to refuse the said Conference. But in Conclusion it was agreed unto, upon the Mo∣tion of Sir Walter Raleigh; who moved, that without naming a Subsidy, it might be pro∣pounded in general words, to have a Confe∣rence touching the Dangers of the Realm, and the necessary Supply of Treasure to be provided speedily for the same, according to the Proportion of the Necessity.

In the 43 Eliz. Serjeant Heal said in Parli∣ament, He marvail'd the House stood either at the granting of a Subsidy or time of Payment, when all we have is her Majesties, and She may lawfully at her Pleasure take it from us; and that she had as much Right to all our Lands and Goods, as to any Revenue of the Crown; and he said he could prove Page  85 it by Precedents in the time of H. 3. K. John and K. Stephen. The ground upon wch this Serjeant at Law went, may be thought the same Sir Ed. Coke delivers in his Institutes, where he saith, the first Kings of this Realm had all the Lands of England in Demesne, and the great Manors and Royalties they reserved to themselves, and of the remnant for the defence of the Kingdom, en∣feoffed the Barons: from whence it appears, that no man holds any Lands but under a conditi∣on to defend the Realm; and upon the self-same Ground also the Kings Prerogative is raised, as being a Preheminence, in cases of Necessity, above, and before the Law of Property, or In∣heritance. Certain it is, before the Commons were ever chosen to come to Parliament, Tax∣es or Subsidies were raised and paid without their gift. The great and long continued Sub∣sidy of Dane-gelt was without any Gift of the Commons, or of any Parliament at all, that can be proved. In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights see was granted to the King by the Nobles, without any Com∣mons. At the passing of a Bill of Subsidies, the words of the King are, the King thanks his loyal Subjects, accepts their good Will, and also will have it so: le Roy remercie ses loyaux Subjects, accept leur benevolence, & ausi ainsi le veult: which last words of ainsi le veult, the King wills it to be so, are the only words that makes the Act of Sub∣sidy a Law to bind every man to the Payment of it.

Page  86In the 39 Eliz. The Commons, by their Speaker, complaining of Monopolies, the Queen spake in private to the L. Keeper, who then made answer touching Monopo∣lies, that Her Majesty hoped her dutiful and loving Subjects would not take away her Pre∣rogative, which is the chiefest Flower in her Garland, and the principal and head Pearl in Her Crown and Diadem; but that they will rather leave that to Her Disposition.

The second Point is, that the Free-hol∣ders, or Counties do not, nor cannot give Privilege to the Commons in Parliament. They that are under the Law cannot protect against it, they have no such Privilege them∣selves, as to be free from Arrests and Acti∣ons: for if they had, then it had been no Privilege, but it would be the Common-Law: And what they have not, they can∣not give; Nemo dat quod non habet, neither do the Free-holders pretend to give any such Privilege, either at their Election, or by any subsequent Act; there is no mention of any such thing in the Return of the Writ; nor in the Indentures between the Sheriff, and the Free-holders.

The third Point remains, That Privilege of Parliament is granted by the King. It is a known Rule, that which gives the Form, gives the Consequences of the Form; the KingPage  87 by his Writ gives the very Essence and Form to the Parliament: therefore Privile∣ges, which are but Consequences of the Form, must necessarily flow from Kings.

All other Privileges and Protections are the Acts of the King; and by the Kings Writ. Sir Edw. Coke saith, that the Protecti∣on of mens Persons, Servants, and Goods, is done by a Writ of Grace from the King. At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament, The Speaker in the Name and Behoof of the Commons, hum∣bly craveth that his Majesty would be gra∣ciously pleased to grant them their accu∣stomed Liberties and Privileges; which Pe∣tition of theirs, is a fair Recognition of the Primitive Grace and Favour of Kings in be stowing of Privilege, and it is a shrewd Ar∣gument against any other Title: For our Ancestors were not so ceremonious nor so full of Complement, as to beg that by Grace, which they might claim by Right. And the Renewing of this Petition every Parlia∣ment, argues the Grant to be but tempora∣ry, during only the present Parliament; and that they have been accustomed, when they have been accustomably sued, or petition∣ed for. I will close this Point with the Judgment of King James, who in his Decla∣ration Page  88 touching his Proceedings in Parlia∣ment, 1621. resolves, that most Privileges of Parliament grew from Precedents, which rather shew a Toleration than an Inheritance; there∣fore he could not allow of the Style, calling it their ancient and undoubted Right and Inheri∣tance, but could rather have wished that they had said, their Privileges were derived from the Grace and Permission of his Ancestors and Him: and thereupon he concludes, He can∣not with Patience endure his Subjects to use such Antimonarchical words concerning their Liber∣ties, except they had subjoyned, that they were granted unto them by the Grace and Favours of his Predecessors: yet he promiseth to be careful of whatsoever. Privileges they enjoy by long Custom and uncontrolled and lawful Pre∣cedents.

Page  [unnumbered]

OBSERVATIONS UPON Aristotle's Politiques, TOUCHING FORMS of GOVERNMENT.

Together with DIRECTIONS FOR Obedience to Governours, in Dangerous and Doubtful Times.

Page  [unnumbered]

Licensed and Entred according to Order, for Richard Royston;

A Book Entituled, Observations upon A∣ristotle's Politiques, touching Forms of Government; Together with Directions for Obedience to Governours in Dangerous and Doubtful Times.

Page  [unnumbered]

THE PREFACE

IN every Alteration of Government there is something new, which none can either Di∣vine, or Judge of, till time hath tried it: we read of many several ways of Govern∣ment; but they have all, or most of them, been of particular Cities, with none, or very small Territories at first belonging to them. At this present the Government of the Low-Coun∣treys, and of Swisserland, are not appropria∣ted either of them to any one City, for they are compounded of several petty Principalities, which have special and different Laws and Privileges each of them; insomuch that the Ʋnited Provinces, and united Cantons are but Confederacies and Leaguers, and not two en∣tire Commonweals; Associates only for mutual Defence. Nay, the Cantons of Swisserland are not only several Republicks, but reputed to have different Forms of Commonweals; some being said to be Aristocratically governed, and Page  [unnumbered] others Democratically, as the Mountaineers: and some of the Cantons are Papists, and some Protestants, and some mix'd of both: we do not find that any large or great Dominion or Kingdom united in one Government, and un∣der the same Laws, was ever reduced at once to any kind of Popular Government, and not confined to the subjection of one City: This being a thing not yet done, requires the abler men to settle such a Peaceable Govern∣ment as is to be desired: there being no Pre∣cedent in the case; all that can be done in it, is, at first to enquire into such Governments, as have been existent in the World. As a Pre∣face to such an Enquiry, the Sacred Scripture (if it be but for the Antiquity of it) would be consulted; and then Aristotle, the grand Ma∣ster of Politiques; and after him the Greek and Latin Historians that lived in Popular times, would be diligently examined. To excite others of greater Abilities to an exacter Disqui∣sition, I presume to offer a Taste of some Do∣ctrines of Aristotle, which are usher'd in with a briefer Touch of the Holy Scriptures.

It is not probable, that any sure direction of the beginning of Government, can be found ei∣ther in Plato, Aristotle, Cicero, Polybius, or in any other of the Heathen Authors, who were ignorant of the manner of the Creation of the World: we must not neglect the Scriptures, and Page  [unnumbered] search in Philosophers for the grounds of Do∣minion and Property, which are the main Prin∣ciples of Government and Justice. The first Government in the World was Monarchical, in the Father of all Flesh. Adam being com∣manded to multiply, and People the Earth, and to subdue it, and having Dominion given him over all Creatures, was thereby the Monarch of the whole World; none of his Posterity had any Right to possess any thing, but by His Grant or Permission, or by Succession from him: the Earth (saith the Psalmist) hath he given to the children of men: which shews, the Title comes from Fatherhood. There never was any such thing as an Independent Multitude, who at first had a natural Right to a Community: this is but a Fiction, or Fancy of too many in these days, who please themselves in running after the Opinions of Philosophers and Poets, to find out such an Original of Government, as might promise them some title to Liberty, to the great Scandal of Christianity, and Bringing in of Atheism, since a natural freedom of man∣kind cannot be supposed without the denial of the Creation of Adam. And yet this conceit of Original Freedom is the only Ground upon which not only the Heathen Philosophers, but also the Authors of the Principles of the Ci∣vil Law; and Grotius, Selden, Hobs, Ash∣cam, and others raise, and build their Do∣ctrines Page  [unnumbered] of Government, and of the several sorts or kinds, as they call them, of Common∣wealths.

Adam was the Father, King, and Lord over his Family: a Son, a Subject, and a Ser∣vant or a Slave, were one and the same thing at first; the Father had power to dispose, or sell his Children or Servants; whence we find, that at the first reckoning up of Goods in Scripture, the Man servant, and the Maid∣servant are numbred among the Possessions and Substance of the Owner, as other Goods were. As for the names of Subject, Slave, and Ty∣rant, they are not found in Scripture, but what we now call a Subject or a Slave, is there named no other than a Servant: I cannot learn that either the Hebrew, Greek, or La∣tine have any proper and Original Word for a Tyrant or a Slave, it seems these are names of later invention, and taken up in disgrace of Mo∣narchical Government.

I cannot find any one place, or Text in the Bible, where any Power or Commission is gi∣ven to a People either to Govern themselves, or to choose themselves Governours, or to alter the manner of Government at their pleasure; the Power of Government is settled and fix∣ed by the Commandment of Honour thy Fa∣ther; if there were a higher Power than the Fatherly, then this Commandment could not Page  [unnumbered] stand, and be observed: Whereas we read in Scripture, of some Actions of the People in set∣ting up of Kings, further than to a naked De∣claration by a part of the People of their Obe∣dience, such Actions could not amount, since we find no Commission they have, to bestow any Right; a true representation of the People to be made, is as impossible, as for the whole People to Govern; the names of an Aristocracy, a Demo∣cracy, a Commonweal, a State, or any other of like signification, are not to be met either in the Law or Gospel.

That there is a ground in Nature for Mo∣narchy, Aristotle himself affirmeth, saying, the first Kings were Fathers of Families; as for any ground of any other Form of Government, there hath been none yet alledged, but a supposed natural Freedom of Mankind; the Proof where∣of I find none do undertake, but only beg it to be granted. We find the Government of Gods own People varied under the several Ti∣tles of Patriarchs, Captains, Judges, and Kings; but in all these the Supreme Power rested still in one Person onely: We no where find any Supreme Power given to the People, or to a Multitude in Scripture, or ever exercised by them. The People were never the Lords anointed, nor called Gods, nor Crowned, nor had the Title of Nursing-Fathers, Gen. 35.11. The Supreme Power being an indivisible Beam Page  [unnumbered] of Majesty, cannot be divided among, or settled upon a Multitude. God would have it fixed in one Person, not sometimes in one part of the People, and sometimes in another; and some∣times, and that for the most part, no where, as when the Assembly is dissolved, it must rest in the Air, or in the walls of the Chamber where they were Assembled.

If there were any thing like a Popular Go∣vernment among Gods People, it was about the time of the Judges, when there was no King in Israel; for they had then some small Show of Government, such as it was, but it was so poor and beggarly, that the Scripture brands it with this note, that every man did what was right in his own eyes, because there was no King in Israel; it is not said, because there was no Government, but because there was no King; it seems no Government, but the Government of a King, in the judgment of the Scriptures, could restrain men from doing what they listed; where every man doth what he pleaseth, it may be truly said, there is no Government; for the end of Government is, that every man should not do what he pleaseth, or be his own Judge in his own case; for the Scripture to say there was no King, is to say, there was no Form of Government in Israel.

And what the Old Testament teacheth us, we have confirmed in the New: If Saint PaulPage  [unnumbered] had only said, Let every Soul be subject to the Higher Powers, and said no more: then men might have disputed, whether Saint Paul, by Higher Powers, had not meant as well other Governours as Kings; or other Forms of Government, as Monarchy; but the good luck is, Saint Paul hath been his own Inter∣preter or Comment: for, after the general Doctrine of Obedience to be given by all men to the Higher Powers, he proceeds next to charge it home, and lay it to the Conscience under pain of Damnation, and applies it to each parti∣cular man's Conscience; saying, Wilt thou not be afraid of the Power? which Power he ex∣pounds in the Singular Number, restraining it to one Person, saying, He is the Minister of God to thee; it is not, They are the Ministers to thee; and then again, He beareth not the Sword in vain; and then a third time in the same Verse, lest thou should'st forget it, he saith, for He is the Minister of God, a Revenger to Wrath, &c. upon thee: if Saint Paul had said, They are the Ministers of God, or They bear not the Sword in vain, it might be doubted, whether [they] were meant of Kings only, or of other Governours also; but this Scruple is taken away by the Apostle himself. And as Saint Paul hath expounded what he means by Higher Powers, so Saint Peter also doth the like: for the self-same Word that Saint Paul useth Page  [unnumbered] for Higher, in Saint Peter is translated Su∣preme; so that though in our English Bibles the words differ, yet in the Original they are both the same; so that Saint Paul might have been Englished, Let every Soul be subject to the Supreme Power; or Saint Peter might have been Translated, whether to the King as to the higher; ye there is this difference, that where∣as Saint Paul useth the word in the Plural Num∣ber, Saint Peter hath it in the Singular, and with Application to the King.

It will be said, Though Saint Peter make the King Supreme, yet he tells us the King is a Humane Ordinance, or a Creature of the Peo∣ples. But it is answered, Kings may be called an Humane Ordinance, for being made of one of the People, and not by the People; and so are humane in Regard of their Material Cause, not of their Efficient. If Saint Peter had meant that Kings had been made by the People, he must also have meant that Governours had been made by the People, for he calls the Go∣vernours as well an Ordinance of Man, as the King; for his words are, Submit your selves to every Ordinance of man for the Lord's sake, whether it be to the King as Supreme, or whether it be to Governours: but Saint Peter sheweth, that Governours are not made by the People; for he saith, they that are sent by Him (not by them) for the Punishment Page  [unnumbered] of Evil Doers: so that the Governours are sent by the King, and not by the People: some would have sent by him, to be sent by God; but the Relative must be referred to the next Antecedent, which is the King, and not God. Besides, if Governours be sent by God, and Kings by the People, then Governours would be Supreme, which is contrary to Saint Pe∣ter's Doctrine; and it will follow, that the People have not the Power of choosing Repre∣senters to Govern, if Governours must be sent of God.

The safest sense of Saint Peter's words is; Submit your selves to all Humane Laws, whether made by the King, or by his Sub∣ordinate Governours. So the King may be called a Humane Ordinance, as being all one with a Speaking Law: the Word in the Ori∣ginal is, Be subject to every Humane Crea∣tion; it is more proper to call a Law made by a King a Creation of an Ordinance, than the Peo∣ples choosing or declaring of a King, a Creation of him.

But take the words in what sense soever you will, it is most evident, that Saint Peter in this place, takes no notice of any Government or Governours, but of a King, and Govern∣ours sent by him, but not by the People. And it is to be noted, That St. Peter and St. Paul, the two chief of the Apostles, wrote their Epi∣stles Page  [unnumbered] at such a time, when the name of a Popular Government, or of the People of Rome was at least so much in Shew and in Name, that many do believe, That notwithstanding the Emperours by strong hand usurped a Military Power; yet the Government was for a long time in most things then in the Senate and People of Rome; but for all this, neither of the two Apostles take any no∣tice of any such Popular Government; No, nor our Saviour himself, who divides all between God and Caesar, and allows nothing that we can find for the People.

Page  89

OBSERVATIONS UPON ARISTOTLE'S Politicks, TOUCHING Forms of Government.

WHAT cannot be found in Scripture, many do look for in Aristotle; for if there be any other Form of Government besides Monarchy, he is the man best able to tell what it is, and to let us know by what name to call it, since the Greek Tongue is most happy in compound∣ing Names, most significant to express the nature of most things: The usual Terms in this Age of Ari∣stocraty and Democraty are taken up from him to ex∣press Forms of Government most different from Monarchy: We must therefore make inquiry into Aristotle touching these two Terms.

True it is, Aristotle seems to make three sorts of Government, which he di∣stinguisheth by *the Sove∣reignty of one man, or of a few, or of many, for the com∣mon Good.

Page  90*These (he saith) are right or perfect Governments, but those that are for the private Good of one, or of a few, or of a Multitude, are Trans∣gressions. The Government of a Monarchy for the Com∣mon Good, he calls a King∣dom. The Government of a few more than one, an Aristocraty; either because the best men govern, or be∣cause it is for the best of the governed: when a Multi∣tude governs for the Common Good, it is called by the common name of all Governments, a POLITY. It is possible that one or a few may excel in Vertue, but it is difficult for many to excel in all Vertue, except in warlike Affairs, for this is natural in a Multitude, therefore, in this sort of Government their principal Ʋse is to war one for another, and to possess the Arms or Ammunition. The Transgressions of Government before spoken of, are these: Tyranny is the Transgression of the Kingdom; and Democraty is the Transgression of the Polity. For Ty∣ranny is a Monarchy for the Benefit of the Monarch, the Oligarchy, for the Profit of the Rich; the Democraty for the Benefit of the Poor. None of these are for the Com∣mon Good.

Here Aristotle, if he had stood to his own Princi∣ples, should have said an Oligarchy should be for the Benefit of a few, and those the best; and not for the Be∣nefit of the Rich: and a Democraty for the Benefit of ma∣ny, and not of the Poor only; for so the Opposition ••eth; but then Aristotle saw his Democraty would prove to be no Transgression, but a perfect Polity, and Page  91 his Oligarchy would not be for the Benefit of a few, and those the best men; for they cannot be the best men, that seek only their private Profit. In this Chapter, the mind of Aristotle about the several kinds of Government, is clearliest delivered, as being the Foundation of all his Books of Politicks, it is the more necessary to make a curious Observa∣tion of these his Doctrines. In the first place, he acknowledgeth the Government of one man, or of a Monarchy, and that is a perfect Form of Govern∣ment.

Concerning Monarchy, Aristotle teacheth us the be∣ginning of it; for, saith he, the *first Society made of many Houses is a Colony, which seems most naturally to be a Colony of Families, or Foster-brethren of Children and Childrens children. And therefore at the beginning Ci∣ties were, and now Nations, under the Government of Kings; the Eldest in every house is King, and so for Kindred sake it is in Colonies.

Thus he deduced the Original of Government from the Power of the Fatherhood, not from the Election of the People. This it seems he learnt of his Master Plato, who in his third Book of Laws affirms, that the true and first Reason of Authority is, that the Father and Mother, and simply those that beget and ingender, do command and rule over all their Children. Aristotle also tells us from Homer,Page  92(a) that every man gives Laws to his Wife and Children.

In the fourth Book of his Politicks, cap. 2. he gives to Monarchy the Title of the (b)first and divinest sort of Govern∣ment, defining Tyranny to be a Transgression from the first, and divinest.

Again, Aristotle in the eighth Book of his Ethicks, in the 12 Chapter, saith. That of (c)the right Kinds of Government, a Monarchy was the best, and a popular Estate the worst.

Lastly, in the third Book of his Politicks, and the six∣teenth Chapter concerning Monarchy, he saith, that (d)A perfect Kingdom is that wherein the King rules all things according to his own Will; for he that is called a King accord∣ing to the Law makes no kind of Government.

Secondly, he saith there is a Government of a few men, but doth not tell us how many those few men may, or must be, only he saith they must be more than one man, but how many, that he leaves uncertain.

This perfect Government of a few, any man would think Aristotle should have called an Oligarchy,Page  93 for that this word properly signifies so much; but in stead of the Government of a few, Aristotle gives it a quite other name, and terms it an Aristocraty, which signifies the Power of the best; the reason why it is called an Aristocraty, said Aristotle, is for that there the best men govern, or (because that is not always true) for that it is for the best of the go∣verned; by this latter reason any Government, and most especially a Monarchy, may be called an Aristo∣craty, because the End of Monarchy is for the best of the governed, as well as the End of an Aristocraty; so that of these two Reasons for calling the Govern∣ment of a few an Aristocraty, the first is seldom true; and the latter is never sufficient to frame a distincti∣on. This Aristotle himself confesseth in his next Chapter, saying (a) that the Causes aforesaid do not make a Difference, and that it is Po∣verty and Riches, and not Few, and Many, that make the Dif∣ference between an Oligarchy and Democraty; there must be an Oligarchy where rich men rule, whether they be few or ma∣ny: and wheresoever the Poor have the Sovereignty, there must be a Democraty.

Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a De∣mocraty: these two must likewise make the Diffe∣rence between an Aristocraty and a Polity: for the only Difference Aristotle makes between them, is, in their Ends, and not in their Matter; for the same few men may make an Aristocraty, if their End be the Common Good; and they may be an Oligar∣chy,Page  94 if they aim only at their private Benefit.

Thus is Aristotle distracted and perplexed how to distinguish his Aristocraty, whether by the smallness of their Number, or by the Greatness of their Estates. Nay if we look into Aristotle's Rhetoricks we shall find a new Conceit,* not only a∣bout Aristocraty, but also about the sorts of Govern∣ment: for whereas he has taught us in his Poli∣ticks, that there be three sorts of Right or perfect Government, and as many sorts of wrong, which he calls Transgressions or Corruptions, he comes in his Rhetoricks, and teacheth us that there be four sorts of Government.

  • (a)1. A Democraty, where Magistracies are distributed by Lots.
  • 2. In an Oligarchy by their Wealth.
  • 3. In an Aristocraty by their Instructions in the Law. It is necessary for these to appear the best from whence they have their name.
  • 4. (b)A Monarchy accord∣ing to the name, wherein one is Lord over all.

Here we see Aristocraty is not distinguished by smal∣ness of Number, nor by Riches, but by Skill in the Laws; for he saith those that are instructed in the Laws govern in an Aristocraty:〈 in non-Latin alphabet 〉· a Point not dreamt of in his Politicks; by which it seems Aristo∣tle himself did not know well what he would have Page  95 to be an Aristocraty. And as he cannot teach us tru∣ly what an Aristocraty is, so he is to seek to tell us where any Aristocraty ever was; even himself seems to doubt, whether there be any such Form of Go∣vernment, where he saith in his third Book of Poli∣ticks, cap. 5.

(a) It is impossible for any Mecha∣nical man to be a Citizen in an Ari∣stocraty, if there be any such Govern∣ment as they call Aristocratical.

His [if] makes him seem to doubt of it: yet I find him affirm that the Commonwealth of Carthage was Aristocratical; he doth not say it was an Aristo∣craty, for he confesseth it had many of the Trans∣gressions which other Commonwealths had, and did incline either to a Democraty or an Oligarchy.

(b)The Government of Carthage did transgress from an Aristocraty to an Oligarchy.

And he concludes, that if by Misfortune there should happen any Discord among the Carthaginians themselves, there would be no Medicine by Law found out to give it Rest; wherein me-thinks Ari∣stotle was a kind of Prophet, for the Discords be∣tween the Citizens of Carthage, were the main Cause that Hannibal lost not only Italy, but Carthage it self.

By these few Collections we may find how un∣certain Aristotle is in determining what an Ari∣stocraty is, or where, or when any such Govern∣ment was; it may justly be doubted whether Page  96 there ever was, or can be any such Government.

Let us pass from his Aristocraty, to his third sort of perfect or right Government; for which he finds no particular Name, but only the common Name of all Government, Politia: It seems the Greeks were won∣derfully to seek, that they of all men should not be a∣ble to compound a name for such a perfect Form of Government; unless we should believe that they e∣steemed this kind of Commonwealth so superlative∣ly excellent, as to be called, 〈 in non-Latin alphabet 〉, the Govern∣ment of all Governments, or Polity of Polities.

But howsoever Aristotle in his Books of Politicks vouchsafe us not a Name, yet in his Books of Ethicks he affirmeth it may very properly be called (a)a Timocratical Government, where Magistrates are chosen by their Wealth: But why Aristo∣tle should give it such a Name I can find no Reason; for a Polity by his Doctrine is the Government of many, or of a Multitude, and the Multitude he will have to be the poorer sort, inso∣much that except they be poor, he will not allow it to be the Government of a Multitude, though they be never so many; for he makes Poverty the truest Note of a popular Estate; and as if to be Poor and to be Free were all one, he makes Liberty likewise to be a Mark of popular Estate, for in his 4th. Book, and 4th. Chapter, he resolves, That(b)a popular State is where Freemen govern, and an Oligarchy where rich men rule; as if rich men could not be Free-men: Now how Magistrates should be Page  97 chosen for their Wealth, 〈 in non-Latin alphabet 〉, among all poor men is to me a Riddle.

Here I cannot but wonder why all our Modern Po∣liticians, who pretend themselves Aristotelians, should forsake their great Master, and account a Democraty a right or perfect Form of Government, when Aristotle brands it for a Transgression, or a depraved, or cor∣rupted manner of Government. They had done better to have followed Aristotle, who (though other Grecians could not, yet he) could find out the name of a Timocraty for a right popular Government: But, it may be, our Politicians forbear to use the word Timocraty, because he affords an ill Character of it, saying, That of all the right Kinds of Government a Monarchy was the best, and a Timocraty the worst; 〈 in non-Latin alphabet 〉. Yet afterwards Aristotle in the same Chapter makes a∣mends for it, in saying, a Democraty is the least vicious, because it doth but a little Transgress from a Timocraty.

But not to insist longer on the name of this name∣less Form of Government, let Inquiry be made into the thing it self, that we may know what Aristotle saith is the Government of many, or of a Multitude, for the Common Good.

This Many, or Multitude is not the whole People, nor the major part of the People, or any chosen by the People to be their Representors. No, Aristotle never saith, or meaneth any such thing; for he tells us (a)the best City doth not make any Artificer, or Handicraftsman a Citizen.

And if these be excluded out of the Number of Citizens, there will be but a few lest in every City Page  98 to make his Timocratical Government, since Artifi∣cers or Mercenary men make far the greatest part of a City; or to say (a)a City is a Community of Free-men, and yet to exclude the greatest part of the Inhabitants from being Citizens, is but a Mocke∣ry of Freedom; for any man would think that a City being a Society of men assembled to the End to live well, that such men without whom a City cannot subsist, and who perform necessary Works, and mi∣nister to all in Publick, should not be barred from be∣ing Citizens, yet says Aristo∣tle,(b)all those are not to be deem∣ed Citizens without whom a City cannot subsist, except they ab∣stain from necessary Works; for he resolves it (c)impossible for him to exercise the Work of Vertue, that useth a Mechanical or Mercenary Trade.

And he makes it one of his Conclusions, That (d)in anci∣ent times among some men, no publick Workman did partake of the Government, until the worst of Democraties were brought in.

Again, Aristotle will have his best Popular Govern∣ment consist of Free-men, and accounts the poorer sort of People to be Free-men; how then will he ex∣clude poor Artificers, who work for the Publick, from participating of the Government?

Page  99Further, it is observable in Aristotle, That, quite contrary to the Signification of the Greek names, the Government of a Multitude may be termed an Oli∣garchy if they be rich, and the Rule of a few a De∣mocraty if they be poor and free.

After much Incertainty of the Nature of this Po∣litick Government, which wants a name; Aristotle at last resolves that this general Commonweal, or Politia is compounded of a Democraty and Oligarchy; for, (a)to speak plainly, a Polity is a mixture of a Democraty and an Oligarchy.

That is, one perfect Form is made of two imper∣fect ones; this is rather a confounding than com∣pounding of Government, to patch it up of two cor∣rupt ones, by appointing an Oligarchical Penalty for the rich Magistrates that are chosen by Election, and a Democratical Fee for the poor Magistrates that are chosen by Lot.

Lastly, it is to be noted, That Aristotle doth not offer to name any one City or Commonweal in the World, where ever there was any such Government as he calls a Polity: for him to reckon it for a per∣fect Form of Government, and of such Excellency as to carry the Name from all other, and yet never to have been extant in the World, may seem a Won∣der, and a man may be excused for doubting, or for denying any such Form to be possible in Nature, if it cannot be made manifest what it is, nor when, nor where it ever was.

In Conclusion, since Aristotle reckons but three kinds of perfect Government, which are; First, a Page  100Monarchy of one; Secondly, an Aristocraty of a few; Thirdly, a Polity of a Multitude; and if these two lat∣ter cannot be made good by him: there will remain but one right Form of Government only, which is Monarchy: And it seems to me, that Aristotle in a manner doth confess as much, where he informs us, (a)that the first Commonweal among the Grecians, after Kingdoms, was made of those that waged War: meaning that the Gre∣cians, when they left to be go∣verned by Kings, fell to be governed by an Army: their Monarchy was changed into a Stratocraty, and not into an Aristocraty or Democraty: for if Unity in Government, which is only found in Monarchy, be once broken, there is no Stay or Bound, until it come to a constant standing Army, for the People or Multi∣tude, as Aristotle teacheth us, can excel in no Vertue but Military, and that That is natural to them, and therefore in a popular Estate, (b)The Sovereign Power is in the Sword, and those that are possessed of the Arms. So that any Nation or Kingdom that is not charged with the keeping of a King, must perpetually be at the Charge of paying and keeping of an Army.

Page  101These brief Observations upon Aristotle's perfect Forms of Government, may direct what to judge of those corrupted or imperfect Forms which he mentions; for rectum est index sui & obliqui, and he reckons them to be all one in Matter and Form, and to differ only in their End: the end of the Perfect Forms being for the Good of the Governed; and of the Imperfect, for the benefit only of the Governours. Now since Aristotle could not tell how to define or describe his Right or Perfect Forms of Government, it cannot be expected he can satisfie us concerning those he calls Imperfect: yet he la∣bours and bestirs himself mainly in the business, though to little purpose; for howsoever the Title of his Book be 〈 in non-Latin alphabet 〉, of Politicks, and that he mentions 〈 in non-Latin alphabet 〉 for a special Form of Govern∣ment, which hath the common name of a Policy: yet when he comes to dispute in particular of Govern∣ment, he argues only about Democracies and Oli∣garchies, and therein he is copious, because only those which he calls corrupt Forms of Governments were common in Greece in his days. As for an Ari∣stocracy, or a Policy which he mentions, they are on∣ly Speculative Notions, or Airy Names, invented to delude the World, and to perswade the People, that under those quaint Terms, there might be found some subtile Government, which might at least equal, if not excel Monarchy: And the Inventers of those fine Names were all but Rebels to Monarchy, by A∣ristotle's confession, where he saith, the first Common∣weals of Greece after Kings were left, were made of those that waged War. lib. 4. c. 13.

As Aristotle is irresolute to determine what are truly Perfect Aristocracies and Policies, so he is to Page  102 seek in describing his imperfect Forms of Govern∣ment, as well Oligarchies as Democracies, and there∣fore he is driven to invent several sorts of them, and to confound himself with Subdivisions: we will alledge some of his words. The cause why there be many kinds of Commonweals is, for that there are many parts of every City. Sometimes all these parts are in a Commonweal, sometimes more of them, some∣times fewer: whence it is manifest, that there are many Commonweals differing from each other in kind: be∣cause the parts of them differ after the same manner. For a Commonweal is the Order of Magistrates distribu∣ted, either according to the Power of them that are partakers of it, or according to some other common equa∣lity belonging to Poor and Rich, or some other thing common to both. It is therefore necessary, that there be so many Commonweals as there are Orders, ac∣cording to the excellencies and differences of Parts. But it seemeth principally there are but two chief kinds of Commonweals; the Democracy and the Oligarchy: for they make the Aristocracy a branch of Oligarchy, as if it were a kind of Oligarchy; and that other which is properly a Policy, to be a branch of Demo∣cracy. So they are wont to esteem of Commonweals; but it is both truer and better; that there being two right Forms, or one, that all the other be transgressi∣ons. Here we find Aristotle of several minds, some∣times he is for many Commonweals, sometimes for two, or sometimes for one. As for his many Commonweals, if he allow them according to the several parts of a City, he may as well make three thousand kinds of Commonweals, as three: if two Artificers and three Souldiers should govern, that should be one kind of Commonweal: if four Hus∣bandmen, Page  103 and five Merchants, that would be a se∣cond sort; or six Taylors, and ten Carpenters, a third sort; or a dozen Saylors, and a dozen Porters, a fourth; and so in infinitum, for Aristotle is not re∣solved how many parts to make of a City, or how many Combinations of those Parts; and therefore in his Reckoning of them, he differs from himself, sometimes makes more, sometimes fewer Parts: and oft concluding at the end of his Accompt with & caete∣ra's: and confessing that one and the same man may act several Parts; as he that is a Souldier, may be a Husbandman and an Artificer, and in his fourth Book and fourth Chapter, he seems to reckon up eight Parts of a City, but in the Tail of them, he misses or forgets the sixth. 1. He names the Plowman. 2. The Artifi∣cer. 3. The Tradesman, or Merchant. 4. The merce∣nary Hireling. 5. The Souldier, (here Aristotle falls foul upon Plato, for making but four Parts of a Ci∣ty. 1. The Weaver. 2. The Plowman. 3. The Tay∣lor. 4. The Carpenter. Afterwards, as if these were not sufficient, he addeth the Smith, and the Feeder of necessary Cattle, the Merchant, and the Ingrosser or Retailer) whilest Aristotle was busie in this Repre∣hension of Plato, he forgets himself, and skips over his sixth Part of a City, and names the 7. rich men, 8. the Magistrates. In the same Chapter, he offers at another Division of the Parts of a City or Com∣monweal, first dividing it into a Populacy, and Nobi∣lity. The People he divides first into Husbandmen. 2. Into Artificers. 3. Into Merchants, or those that use Buying or Selling. 4. Into those that frequent the Seas, of whom some follow the War, others seek for Gain, some are Carriers or Transporters, others Fishermen. 3. Handicraftsmen that possess so little goods, that they Page  104 cannot be idle. 6. Those that are not free on both sides, and any other such like Multitude of People. The kinds of Noblemen are distinguished by Riches, by Lineage, by Vertue, by Learning, and other such like things.

That there may be more Parts of a Commonweal than are here numbred, Aristotle confesseth or suppo∣seth; and of a Multitude of Parts, and of a Multi∣tude of Mixtures of such Parts may be made a World of Forms of Oligarchies and Democraties.

This Confusion of the Parts and Kinds of Com∣monweals drove Aristotle rather to rest upon the Division of Rich and Poor, for the main parts of a Commonweal, than any other. The distinction of a Few and of a Multitude, or the whole People, might seem more proper to distinguish between an Oligarchy and a Democraty; but the Truth is, Ari∣stotle looking upon the Cities of Greece, and finding that in every of them, even in Athens it self, there were many of the People that were not allowed to be Citizens, and to participate in the Government, and that many times He was a Citizen in one sort of Government, who was not a Citizen in another, and that Citizens differed according to every Com∣monweal; he considered that if he should place a Right in the whole People, either to govern, or to chuse their Form of Government, or the Parties that should govern: he should hereby condemn the Government of all the Cities in Greece, and espe∣cially of Aristocraty, which, as he saith, allows no Artificer to be a Citizen, and besides, he should there∣by confute a main Principle of his own Politicks, which is, that some men are born slaves by Nature; which quite contradicts the Position, that all men are born equal and free; and therefore Aristotle thought Page  105 it fitter to allow all imaginable Forms of Govern∣ment, that so he might not disparage any one City, than to propound such a Form as might condemn and destroy all the rest.

Though Aristotle allow so many several Forms of corrupted Governments; yet he insists upon no one Form of all those that he can define or describe, in such sort, that he is able to say that any one City in all Greece was governed just according to such a Form; his diligence is only to make as many Forms as the giddy or inconstant Humour of a City could happen upon; he freely gives the People Liberty to invent as many Kinds of Government as they please, provided he may have Liberty to find fault with every one of them; it proved an easier Work for him to find Fault with every Form, than to tell how to amend any one of them; he found so many Im∣perfections in all sorts of Commonweals, that he could not hold from reproving them before ever he tells us what a Commonweal is, or how many sorts there are, and to this Purpose he spends his whole second Book in setting out, and correcting the chief Commonweals of Greece, and among others the Lacedemonian, the Cretan, and Carthagi∣nian Commonweals; which three he esteems to be much alike, and better than any other, yet he spares not to lay open their imperfections, and doth the like to the Athenian; wherein he breaks the Rule of Method, by delivering the Faults of Common∣weals, before he teach us what a Commonweal is; for in his first Book, he speaks only of the Parts, of which a City, or a Commonweal is made, but tells us not what a City or Commonweal is, until he come to his Third Book, and there in handling the Page  106 sorts of Government, he observes no Method at all, but in a disorderly way, flies backward and forward from one sort to another: and howsoever there may be observed in him many Rules of Policy touching Government in general, yet without doubt where he comes to discourse of particular Forms, he is full of Contradiction, or Confusion, or both: it is true, he is brief and difficult, the best Right a man can do him, is to confess he understands him not; yet a diligent Reader may readily discern so many Irregularities and Breaches in Aristotle's Books of Politicks, as tend to such Distraction or Confusion, that none of our new Politicians can make advantage of his Principles, for the Confirmation of an original Power by Nature in the People, which is the only Theme now in Fashi∣on: For Aristotle's Discourse is of such Common∣weals as were founded by particular Persons, as the Chalcedonian by Phaleas, the Milesian by Hippodamas, the Lacedemonian by Lycurgus, the Cretan by Minos, the Athenian by Solon, and the like: but the natural Right of the People to found, or elect their Kind of Government is not once disputed by him: It seems the underived Majesty of the People, was such a Meta∣physical Piece of Speculation as our grand Philoso∣pher was not acquainted with; he speaks very con∣temptuously of the Multitude in several Places, he affirms that the People are base or wicked Judges in their own Cases,〈 in non-Latin alphabet 〉·* and that many of them differ nothing from beasts; 〈 in non-Latin alphabet 〉;* and again he saith, The Common People or Freemen are such as are neither Rich, nor in Reputation for Virtue; and it is not safe to commit to them great Governments; for, by reason of Page  107 their Injustice and Ʋnskilfulness, they would do much In∣justice, and commit many Errours; and it is pleasanter to the multitude to live Disorderly, than Soberly,〈 in non-Latin alphabet 〉.* If Aristotle had believed a Publick Interest to have been in the People, to the enabling them to be their own carvers in point of Govern∣ment, he would never have entangled himself with such intricate and ambiguous Forms of Common∣weals, as himself cannot tell how to explain, nor any of his Commentators how to understand, or make Use of.

This one Benefit I have found by Reading Aristo∣tle, that his Books of Politicks serve for an admira∣ble Commentary upon that Text of Scripture, which saith, In those days there was no King in Isra∣el; every man did that which was right in his own eyes. For he grants a liberty in every City, for any man, or multitude of men, either by Cunning, or Force, to set up what Government they please; and he will allow some name or other of a Commonweal, which in effect is to allow every man to do what he lists, if he be able; hence it is, that by the Confessi∣on of Aristotle, the first Commonweals in Greece, after Kings were given over, were made of those that waged War; those several kinds of Commonweals, were all summed up into the Government of an Army; for *it is, saith Aristotle, in their power, who man∣age Arms to continue, or not conti∣nue the Form of Government, where∣by the Estate is Governed, which is nothing else but a Stratocratie, or Military Government. We cannot much blame Page  108Aristotle for the Incertainty, and Contrariety in him about the sorts of Government, if we consider him as a Heathen; for it is not possible for the Wit of man to search out the first Grounds or Principles of Government, (which necessarily de∣pend upon the original of Property) except he know that at the Creation one man alone was made, to whom the Dominion of all things was given, and from whom all men derive their Ti∣tle. This Point can be learnt only from the Scrip∣tures: as for the imaginary Contract of People, it is a Fancy not improbable only, but impossible, ex∣cept a multitude of men at first had sprung out,*and were engendred of the Earth, which Aristotle knows not whether he may believe, or no: If Justice (which is to give every man his Due) be the End of Government, there must Necessarily be a Rule to know how any man at first came to have a Right to any thing to have it truly called his. This is a Point Aristotle disputes not; nor so much as ever dreamt of an original Contract among People: he looked no farther in every City, then to a Scambling among the Citizens, whereby every one snatcht what he could get: so that a violent Possession was the first, and best Title that he knew.

The main Distinction of Aristotle touching perfect or Right Forms of Government from those that are imperfect or corrupt, consists solely in this Point, that where the profit of the governed is respected, there is a right Government, but where the Pro∣fit of the Governours is regarded, there is a Cor∣ruption or Transgression of Government. By this it is supposed by Aristole, that there may be a Go∣vernment only for the Benefit of the Governours; Page  109 this Supposition to be false, may be proved from Aristotle himself; I will Instance about the Point of Tyranny.

Tyranny, saith Aristotle,(a)is a de∣spotical or masterly Monarchy; now he confesseth, that (b)in truth the master∣ly Government is profitable both to the Servant by Nature, and the Master by Nature, and he yields a solid reason for it, saying, (c)It is not possible, if the Servant be destroy∣ed, that the Mastership can be saved; whence it may be inferred, That if the Masterly Government of Tyrants cannot be safe without the Preservation of them whom they govern, it will follow that a Ty∣rant cannot govern for his own Profit only: and thus his main Definition of Tyranny fails, as being ground∣ed upon an impossible Supposition by his own Con∣fession. No Example can be shewed of any such Government that ever was in the World, as Ari∣stotle describes a Tyranny to be; for under the worst of Kings, though many particular men have unjust∣ly suffered, yet the Multitude, or the People in ge∣neral have found Benefit and Profit by the Govern∣ment.

It being apparent that the different kinds of Go∣vernment in Aristotle, arise only from the diffe∣rence of the number of Governours, whether one, a few, or many, there may be as many several Forms of Governments as there be several Numbers, which are infinite; so that not only the several Parts of a City or Commonweal, but also the se∣veral Numbers of such Parts may cause multipli∣city of Forms of Government by Aristotle's Prin∣ciples.

Page  110It is further observable in Assemblies, that it is not the whole Assembly, but the major part only of the Assembly that hath the Government; for that which pleaseth the most, is always ratified, saith Aristotle, lib. 4. c. 4. by this means one and the same Assembly may make, at one Sitting, several Forms of Commonweals, for in several Debates and Votes the same number of men, or all the self-same men do not ordinarily agree in their Votes; and the least Disagreement, either in the Persons of the men, or in their number, alters the Form of Government. Thus in a Commonweal, one part of the Publick Affairs shall be ordered by one Form of Govern∣ment, and another part by another Form, and a third part by a third Form, and so in infinitum. How can that have the Denomination of a Form of Government, which lasts but for a moment only, about one fraction of Business? for in the very in∣stant, as it were in the Twinkling of an eye, while their Vote lasteth, the Government must begin and end.

To be governed, is nothing else but to be obedi∣ent and subject to the Will or Command of another; it is the Will in a man that governs; or∣dinarily mens Wills are divided according to their several Ends or Interests; which most times are dif∣ferent, and many times contrary the one to the other, and in such cases where the Wills of the major part of the Assembly do unite and agree in one Will, there is a Monarchy of many Wills in one, though it be called an Aristocracy or Democracy, in regard of the several Persons; it is not the many Bodies, but the one Will or Soul of the Multitude Page  111 that governs. (a)Where one is set up out of many, the People becom∣eth a Monarch, because many are Lords, not separately, but alto∣gether as one; therefore such a Peo∣ple as if it were a Monarch, seeks to bear Rule alone. Lib. 4. c. 4.

It is a false and improper Speech to say that a whole Multitude, Senate, Council, or any Multi∣tude whatsoever doth govern where the major part only 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 contrary to their Wills; there being in all Government various and different Debates and Consultations, it comes to pass oft-times, that the major part in every Assembly, differs according to the several Humours or Fancies of men; those who agree in one Mind, in one Point, are of different Opinions in another; every Change of Business, or new Matter begets a new major part, and is a Change both of the Government and Governours; the Difference in the Number, or in the Qualities of the Persons that govern, is the only thing that causes different Governments, according to Aristotle, who divides his Kinds of Government to the Num∣ber of one, a few, or many. As amongst the Ro∣mans their Tribunitial Laws had several Titles, ac∣cording to the Names of those Tribunes of the Peo∣ple, that preferr'd and made them. So in other Governments, the Body of their Acts and Ordinan∣ces, Page  112 is composed of a Multitude of momentary Mo∣narchs, who by the Strength and Power of their Parties or Factions are still under a kind of a civil War, fighting and scratching for the Legislative Miscellany, or medly of several Governments. If we consider each Government according to the No∣bler Part of which it is composed, it is nothing else but a Monarchy of Monothelites, or of many men of one Will, most commonly in one Point only: but if we regard only the baser part, or Bodies of such Persons as govern, there is an interrupted Suc∣cession of a Multitude of short-lived Governments, with as many Intervals of Anarchy; so that no man can say at any time, that he is under any Form of Government; for in a shorter time than the word can be spoken, every Government is begun and end∣ed. Furthermore in all Assemblies, of what Qua∣lity soever they be, whether Aristocratical or De∣mocratical, as they call them, they all agree in this one Point, to give that honourable Regard to Mo∣narchy, that they do interpret the major, or pre∣vailing part in every Assembly to be but as one man, and so do feign to themselves a kind of Mo∣narchy.

Though there be neither Precept nor Practice in Scripture, nor yet any Reason alledged by Aristo∣tle for any Form of Government, but only Mo∣narchy; yet it is said that it is evident to com∣mon Sense, that of old time Rome, and in this present Age Venice, and the Low-Countries, en∣joy a Form of Government different from Mo∣narchy: Hereunto it may be answered, That a People may live together in Society, and help one another; and yet not be under any Form of Govern∣ment; Page  113 as we see Herds of Cattel do, and yet we may not say they live under Government. For Government is not a Society only to live, but to live well and vertuously. This is acknowledged by Aristotle, who teacheth that (a)the End of a City, is to live blessedly and honestly. Po∣litical Communities are ordain∣ed for honest Actions, but not for living together only.

Now there be two things principally required to a blessed and honest life: Religion towards God, and Peace towards men: that is, a quiet and peaceable Life in all Godliness and Honesty, 1 Tim. 2.2. Here then will be the Question; Whether Godliness and Peace can be found under any Government but Mo∣narchy, or whether Rome, Venice, or the Low Coun∣tries did enjoy these under any popular Government. In these two Points, let us first briefly examine the Roman Government, which is thought to have been the most glorious.

For Religion, we find presently after the Build∣ing of the City by Romulus, the next King, Numa most devoutly established a Religion, and be∣gan his Kingdom with the Service of the Gods; he forbad the Romans to make any Images of God, which Law lasted and was observed 170 Years, there being in all that time no Image or Pi∣cture of God, in any Temple or Chappel of Rome; also he erected the Pontifical Colledge, and was himself the first Bishop or Pontifex; These Bi∣shops Page  114 were to render no Account either to the Se∣nate or Commonalty. They determined all Questi∣ons concerning Religion, as well between Priests as between private men: They punished inferiour Priests, if they either added or detracted from the established Rites, or Ceremonies, or brought in any new thing into Religion. The chief Bishop, Ponti∣fex Maximus, taught every man how to honour and serve the Gods. This Care had Monarchy of Re∣ligion.

But after the Expulsion of Kings, we do not find during the Power of the People, any one Law made for the Benefit or Exercise of Religion: there be two Tribunitian Laws concerning Religion, but they are meerly for the Benefit of the Power of the People, and not of Religion. L. Papirius, a Tri∣bune, made a Law, called Lex Papiria, that it should not belawful for any to consecrate either Houses, Grounds, Altars, or any other things without the Determination of the People. Domitius Aenobarbus another Tribune Enacted a Law called Domitia Lex, that the Pontifical Colledge should not, as they were wont, admit whom they would into the Order of Priesthood, but it should be in the Power of the People; and because it was contrary to their Religion, that Church-Dignities should be bestowed by the Common People; hence for very Shame he ordained, that the lesser part of the Peo∣ple, namely seventeen Tribes, should elect whom they thought fit, and afterwards the Party elected should have his Confirmation or Admission from the Col∣ledge: Thus by a Committee of Seven Tribes taken out of Thirtyfive, the Ancient Form of Religion was altered and reduced to the Power of the lesser part of the People. This was the Page  115 great Care of the People to bring Ordination and Consecration to the Laity.

The Religion in Venice, and the Low-Countries is sufficiently known, much need not be said of them: they admirably agree under a seeming contrariety; it is commonly said, that one of them hath all Re∣ligions, and the other no Religion; the Atheist of Venice may shake hands with the Sectary of Amster∣dam. This is the Liberty that a Popular Estate can brag of, every man may be of any Religion, or no Religion, if he please; their main Devotion is ex∣ercised only in opposing and suppressing Monarchy. They both agree to exclude the Clergy from med∣ling in Government, whereas in all Monarchies both before the Law of Moses, and under it, and ever since; all Barbarians, Graecians, Romans, Infidels, Turks, and Indians, have with one Consent given such Respect and Reverence to their Priests, as to trust them with their Laws; and in this our Nation, the first Priests we read of before Christianity, were the Druides, who, as Caesar saith, decided and deter∣mined Controversies, in Murder, in Case of Inheritance, of Bounds of Lands, as they in their Discretion judged meet; they grant Rewards and Punishments. It is a Wonder to see what high Respect even the great Turk giveth to his Mufti, or Chief Bishop, so necessa∣ry is Religion to strengthen and direct Laws.

To consider of the Point of Peace: It is well known, that no People ever enjoyed it without Monarchy. Aristotle saith, the Lacedemonians pre∣served themselves by Warring; and after they had got∣ten to themselves the Empire, then were they presently undone, for that they could not live at Rest, nor do any better Exercise, than the Exercise of War, lib. 2. c. 7. Page  116 After Rome had expelled Kings, it was in perpetual War, till the time of the Emperours: once only was the Temple of Janus shut, after the end of the first Punick War, but not so long as for one year, but for some Months. It is true, as Orosius saith, that for almost 700 years, that is, from Tullus Hostilius to Augustus Caesar, only for one Summer, the Bowels of Rome did not sweat Blood. On the Behalf of the Romans it may be said, that though the Bowels of Rome did always sweat Blood, yet they did obtain most glorious Victories abroad. But it may be tru∣ly answered, if all the Roman Conquests had no o∣ther Foundation but Injustice; this alone foils all the Glory of her warlike Actions. The most glo∣rious War that ever Rome had, was with Carthage; the Beginning of which War, Sir Walter Raleigh proves to have been most unjustly undertaken by the Romans, in confederating with the Mamertines, and Aiding of Rebels, under the Title of protecting their Confederates; whereas Kings many times may have just Cause of War, for recovering and preser∣ving their Rights to such Dominions as fall to them by Inheritance or Marriage, a Popular Estate, that can neither marry, nor be Heir to another, can have no such Title to a War in a Foreign Kingdom; and to speak the Truth, if it be rightly considered; the whole time of the Popularity of Rome, the Romans were no other than the only prosperous and glorious Thieves, and Robbers of the World.

If we look more narrowly into the Roman Go∣vernment, it will appear, that in that very Age, wherein Rome was most victorious, and seemed to be most popular; she owed most of her Glory to an apparent kind of Monarchy. For it was the Kingly Page  117 Power of the Consuls, who (as Livy saith) had the same Royal Jurisdiction, or absolute Power that the Kings had, not any whit diminished or abated, and held all the same Regal Ensigns of supreme Dignity, which helpt Rome to all her Conquests: whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates, enacting of Laws, and calling to Account, or such other po∣pular Affairs, the Kingly Consuls gained all the Vi∣ctories abroad: Thus Rome at one and the same time was broken and distracted into two Shews of Government; the Popular, which served only to raise Seditions and Discords within the Walls, whilst the Regal atchieved the Conquests of Fo∣reign Nations and Kingdoms. Rome was so sensi∣ble of the Benefit and Necessity of Monarchy, that in her most desperate Condition and Danger, when all other Hopes failed her, she had still resort to the Creation of a Dictator, who for the time was an Absolute King; and from whom no Appeal to the People was granted, which is the royallest Evidence for Monarchy in the World; for they who were drawn to swear, they would suffer no King of Rome, found no security but in Perjury, and breaking their Oath by admitting the Kingly Power in spight of their Teeth, under a new name of a Dictator or Consul: a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride, which is most tolerable in a King of all men: and yet we find no particular Point of Pride charged upon him, but that he enjoyned the Ro∣mans to labour in cleansing, and casting of Ditches, and paving their Sinks: an Act both for the Bene∣fit and Ornament of the City, and therefore com∣mendable Page  118 in the King: But the Citizens of Rome, who had been Conquerours of all Nations round about them, could not endure of Warriers to be∣come Quarriers, and Day-labourers. Whereas it is said, that Tarquin was expelled for the Rape com∣mitted by his Son on Lucrece; it is unjust to con∣demn the Father for the Crime of his Son; it had been fit to have petitioned the Father for the Pu∣nishment of the Offender: The Fact of young Tar∣quin cannot be excused, yet without wrong to the Reputation of so chaste a Lady as Lucrece is reputed to be, it may be said, she had a greater Desire to be thought chaste, than to be chaste; she might have died untouched, and unspotted in her Body, if she had not been afraid to be slandered for Inchastity; both Dionysius Halicarnasseus, and Livie, who both are her Friends, so tell the Tale of her, as if she had chosen rather to be a Whore, than to be thought a Whore. To say Truth, we find no other Cause of the Expulsion of Tarquin, than the Wantonness, and Licentiousness of the People of Rome.

This is further to be considered in the Roman Government, that all the time between their Kings, and their Emperours, there lasted a continued strife, between the Nobility and Commons, where∣in by Degrees the Commons prevailed at last, so to weaken the Authority of the Consuls and Senate, that even the last sparks of Monarchy were in a man∣ner extinguished, and then instantly began the Ci∣vil War, which lasted till the Regal Power was quickly brought home, and setled in Monarchy. So long as the Power of the Senate stood good for the Election of Consuls, the Regal Power was pre∣served Page  119 in them, for the Senate had their first Insti∣tution from Monarchy: It is worth the noting, that in all those places that have seemed to be most po∣pular, that weak Degree of Government, that hath been exercised among them, hath been founded up∣on, and been beholden unto Monarchical Princi∣ples, both for the Power of assembling, and man∣ner of consulting: for the entire and gross Body of any People, is such an unweildy and diffused thing as is not capable of uniting, or congregating, or deliberating in an entire Lump, but in broken Parts, which at first were regulated by Monar∣chy.

Furthermore it is observable, that Rome in her chief Popularity, was oft beholden for her Preser∣vation to the Monarchical Power of the Father over the Children: by means of this Fatherly Power, saith Bodin, the Romans flourished in all Honour and Vertue, and oftentimes was their Common∣weal thereby delivered from most imminent Destru∣ction, when the Fathers drew out of the Consisto∣ry, their Sons being Tribunes publishing Laws tending to Sedition. Amongst others Cassius threw his Son headlong out of the Consistory, publishing the Law Agraria (for the Division of Lands) in the Behoof of the People, and after by his own pri∣vate Judgment put him to Death, the Magistrates, Serjeants, and People standing thereat astonied, and not daring to withstand his Fatherly Authority, although they would with all their Power have had that Law for Division of Lands; which is sufficient Proof, this Power of the Father not only to have been sacred and inviolable, but also to have been lawful for him, either by Right or Wrong to Page  120 dispose of the Life and Death of his Children, even contrary to the Will of the Magistrates and People.

It is generally believed that the Government of Rome, after the Expulsion of Kings, was popular; Bodin endeavours to prove it, but I am not satisfied with his Arguments, and though it will be thought a Paradox, yet I must maintain, it was never truly po∣pular.

First, it is difficult to agree, what a popular Go∣vernment is, Aristotle saith, it is where Many or a Multitude do rule; he doth not say where the People, or the major part of the People, or the Representors of the People govern.

Bodin affirms, if all the People be interessed in the Government, it is a Popular Estate, Lib. 2. c. 1. but after in the same Chapter he resolves, that it is a Popular Estate, when all the People, or the greater part thereof hath the Sovereignty, and he puts the Case, that if there be threescore thousand Citizens, and forty thousand of them have the Sovereignty, and twenty thousand be excluded, it shall be called a popular Estate: But I must tell him, though fifty nine thousand, nine hundred, ninety nine of them govern, yet it is no popular Estate; for if but one man be excluded, the same reason that excludes that one man, may exclude many hundreds, and many thousands, yea, and the major part it self; if it be admitted, that the People are or ever were free by Nature, and not to be governed, but by their own Consent, it is most unjust to exclude any one man from his Right in Government; and to sup∣pose the People so unnatural, as at the first to have Page  121 all consented to give away their Right to a major part, (as if they had Liberty given them only to give away, and not to use it themselves) is not only improbable, but impossible; for the whole People is a thing so uncertain and changeable, that it al∣ters every moment, so that it is necessary to ask of e∣very Infant so soon as it is born its Consent to Go∣vernment, if you will ever have the Consent of the whole People.

Moreover, if the Arbitrary Tryal by a Jury of Twelve men, be a thing of that admirable Perfe∣ction and Justice, as is commonly believed, where∣in the Negative Voice of every single Person is pre∣served, so that the dissent of any of the Twelve fru∣strates the whole Judgment: How much more ought the natural freedom of each man be preserved, by allowing him his Negative Voice, which is but a continuing him in that Estate, wherein, it is con∣fessed, Nature at first placed him? Justice re∣quires that no one Law should bind all, except all consent to it, there is nothing more violent and contrary to Nature, than to allow a major part, or a∣ny other greater part less than the whole to bind all the People.

The next difficulty to discovering what a Popu∣lar Estate is, is to find out where the Supreme Power in the Roman Government rested; it is Bodin's Opinion, that in the Roman State the Go∣vernment was in the Magistrates, the Authority and Council in the Senate, but the Sovereign Power and Majesty in the People, Lib. 2. c. 1. So in his first Book his Doctrine is, that the ancient Ro∣mans said, Imperium in Magistratibus, Authoritatem Page  122 in Senatu, Potestatem in plebe, Majestatem in Populo jure esse dicebant. These four words Command, Au∣thority, Power, and Majesty signifie ordinarily, one and the same thing, to wit, the Sovereignty, or supreme Power, I cannot find that Bodin knows how to distinguish them; for they were not distinct Faculties placed in several Subjects, but one and the same thing diversly qualified, for Imperium, Autho∣ritas, Potestas, and Majestas were all originally in the Consuls; although for the greater shew the Con∣suls would have the Opinion, and Consent of the Senate who were never called together, nor had their Advice asked, but when and in what Points only it pleased the Consuls to propound: so that properly Senatusconsultum was only a Decree of the Consuls, with the Advice of the Senators: And so likewise the Consuls, when they had a mind to have the Countenance of an ampler Council, they assem∣bled the Centuries, who were reckoned as the whole People, and were never to be assembled, but when the Consuls thought fit to propound some Business of great weight unto them; so that jussus populi, the Command of the People which Bodin so much mag∣nifies, was properly jussus Consulum, the Command of the Consuls, by the Advice or Consent of the Assem∣bly of the Centuries, who were a Body composed of the Senators, and the rest of the Patritians, Knights, and Gentlemen, or whole Nobility toge∣ther with the Commons: for the same men who had Voices in Senate, had also their Votes allowed in the Assembly of the Centuries, according to their several Capacities.

It may further appear, that the Roman Govern∣ment Page  123 was never truly popular, for that in her greatest Show of Popularity, there were to be found above ten Servants for every Citizen or Freeman, and of those Servants, not one of them was allowed any Place, or Voice in Government: If it be said that the Roman Servants were Slaves taken in War, and therefore not fit to be Freemen; to this it may be answered, that if the Opinion of our Mo∣dern Politicians be good, which holds that all men are born Free by Nature, or if but the Opinion of Ari∣stotle be sound, who saith that by Nature some men are Servants, and some are Masters, then it may be unnatural, or unjust to make all Prisoners in War Servants, or (as they are now called) Slaves, a Term not used in the Popular Governments, either of Rome or Greece; for in both Languages, the usual word that doth answer to our late Term of Slave, is but Servus in Latin, and 〈 in non-Latin alphabet 〉 in Greek. Be∣sides, if the Wars of the Romans, by which they gained so many Servants were unjust, as I take all offensive War to be without a special Commission from God, and as I believe all the Roman Wars were, that were made for the Enlargement of their Empire, then we may conclude, that the Romans were the notablest Plagiaries, or Men-stealers in the World.

But to allow the lesser part of the People of Rome, who called themselves Citizens, to have had a just Right to exclude all Servants from being a part of the People of Rome, let us enquire whether the ma∣jor part of those, whom they allowed to be Citizens, had the Government of Rome; whereby we may discover easily how notoriously the poorer and Page  124 greater part of the Citizens were gull'd of their Share in Government; There were two famous man∣ners of their assembling the People of Rome: the first was by Classes, as they called them, which were divided into Centuries; the second was by Tribes, or Wards; the former of these was a Ranking of the People, according to their Abilities or Wealth; the latter according to the Place or Ward, wherein every Citizen dwelt: In the Assemblies of neither of these, had the major part of the Peo∣ple the Power of Government, as may thus be made appear.

First, for the Assembly of the Centuries, there were six Degrees or Classes of men according to their Wealths; the first Classis was of the richest men in Rome, none whereof were under 200 l. in Value: The Valuation of the second Classis was not under fourscore Pounds; and so the third, the fourth, and the fifth Classis were each a Degree one under ano∣ther. The sixth Classis contained the poorer sort, and all the Rabble. These six Classes were subdivi∣ded into Hundreds, or Centuries.

The first Classis had
98 CENTƲRIES.
The second Classis had
22 CENTƲRIES.
The third Classis had
20 CENTƲRIES.
The fourth Classis had
22 CENTƲRIES.
The fifth Classis had
30 CENTƲRIES.
The sixth Classis had
1 CENTƲRIES.
 
193

The Classes, and Centuries being thus ordered, when the Assembly came to give their Votes, Page  125 they did not give their Voices by the Poll, which is the true popular way: but each Century Voted by it self, each Century having one Voice, the major part of the Centuries carried the Busi∣ness: Now there being fourscore and eighteen Centuries in the first Classis, in which all the Pa∣tricians, Senators, Noblemen, Knights, and Gen∣tlemen of Rome, were inrolled, being more in Number, and above half the Centuries, must needs have the Government, if they agreed all together in their Votes, because they Voted first, for when 97 Centuries had agreed in their Votes, the other Centuries of the inferiour Classis, were never called to Vote; thus the Nobles, and richer men who were but few in Comparison of the Com∣mon People did bear the chief Sway, because all the poorer sort, or Proletarian Rabble, were clap'd into the sixth Classis, which in reckoning were allowed but the single Voice of one Century, which never came to Voting: whereas in Number they did far exceed all the five other Classes or Centu∣ries, and if they had been allowed the Liberty of other Citizens, they might have been justly num∣bred for a thousand Centuries, or Voices in the Assembly; This Device of packing so many thou∣sands into one Century, did exclude far the great∣est part of the People from having a part in the Go∣vernment.

Next, for the Assembly of the People of Rome by Tribes, it must be considered, that the Tribes did not give their Voices by the Poll alltogether, which is the true way of popular Voting, but each Tribe or Ward did Vote by it self, and the Votes of the major part (not of the People but) of the Page  126 Tribes did sway the Government, the Tribes being unequal, as all Divisions by Wards usually are, because the Number of the People of one Tribe, is not just the same with the Number of the People of each other Tribe; whence it followed, that the major number of the Tribes might possibly be the minor Number of the People, which is a de∣stroying of the Power of the major Part of the People.

Add hereunto, that the Nobility of Rome were excluded from being present at the Assembly of the Tribes; and so the most considerable part of the People was wanting, therefore it could not be the Voices of the major part of the People, where a great Part of the People were allowed no Voices at all, for it must be the major part of the whole, and not of a Part of the People, that must denominate a popular Government.

Moreover it must be noted, that the Assembly of the Tribes was not originally the Power of the People of Rome, for it was almost forty years after the Rejection of Kings before an Assembly of Tribes were thought on, or spoken of; for it was the As∣sembly of the People by Centuries, that agreed to the Expulsion of Kings, and creating of Consuls in their Room, also the Famous Laws of the twelve Tables were ratified by the Assembly of the Centuries. This Assembly by Centuries, as it was more Ancient, than that by Tribes; so it was more truly popular, because all the Nobility, as well as the Commons, had Voices in it: The Assembly by Tribes, was pretended at first, only to elect Tribunes of the People, and other inferiour Magistrates; to deter∣mine of lesser Crimes that were not Capital, but Page  127 only finable; and to decree that Peace should be made; but they did not meddle with denouncing War to be made, for that high Point did belong on∣ly to the Assembly of the Centuries; and so also did the judging of Treason, and other Capital Crimes. The difference between the Assembly of the Tribes, and of the Centuries, is very material; for though it be commonly thought, that either of these two Assemblies were esteemed to be the People, yet in Reality it was not so, for the Assembly of the Centuries only could be said to be the People, because all the Nobility were included in it as well as the Commons, whereas they were excluded out of the Assembly of the Tribes; and yet in Effect, the Assembly of the Centuries was but as the As∣sembly of the Lords, or Nobles only, because the lesser, and richer part of the People had the Sove∣reignty, as the Assembly of the Tribes was, but the Commons only.

In maintenance of the popular Government of Rome, Bodin objects, that there could be no Regal Power in the two Consuls, who could neither make Law, nor Peace, nor War. The Answer is, though there were two Consuls, yet but one of them had the Regality; for they governed by Turns, one Consul one Month, and the other Consul ano∣ther Month; or the first one day, and the second another day. That the Consuls could make no Laws is false, it is plain by Livy, that they had the Power to make Laws, or War, and did execute that Power, though they were often hindered by the Tribunes of the People; not for that the Power of making Laws or War, was ever taken away from the Consuls, or communicated to the Tribunes, Page  128 but only the Exercise of the Consular Power was suspended by a seeming humble way of intercessi∣on of the Tribunes; The Consuls by their first Institution had a lawful Right to do those things, which yet they would not do by reason of the shortness of their Reigns, but chose rather to countenance their Actions with the Title of a De∣cree of the Senate (who were their private Coun∣cil) yea, and sometimes with the Decree of the Assembly of the Centuries (who were their Pub∣lick Council) for both the Assembling of the Senate, and of the Centuries, was at the Plea∣sure of the Consuls, and nothing was to be pro∣pounded in either of them, but at the Will of the Consuls: which argues a Sovereignty in them over the Senate and Centuries; the Senate of Rome was like the House of Lords, the Assembly of the Tribes resembled the House of Commons, but the Assembling of the Centuries, was a Body com∣posed of Lords and Commons united to Vote toge∣ther.

The Tribunes of the People bore all the Sway among the Tribes, they called them together when they pleased, without any Order, whereas the Centuries were never Assembled without Ceremo∣ny, and Religious Observation of the Birds by the Augurs, and by the Approbation of the Senate, and therefore were said to be auspicata, and ex authoritate Patrum.

These things considered, it appears, that the Assembly of the Centuries was the only legitimate, and great Meeting of the People of Rome: as for any Assembling, or Electing of any Trustees, or Representors of the People of Rome, in nature of Page  129 the Modern Parliaments, it was not in Use, or ever known in Rome.

Above two hundred and twenty years after the Expulsion of Kings, a sullen humour took the Commons of Rome, that they would needs de∣part the City to Janiculum, on the other side of Tybur, they would not be brought back into the City, until a Law was made, That a Plebisci∣tum, or a Decree of the Commons might be ob∣served for a Law; this Law was made by the Di∣ctator Hortensius, to quiet the Sedition, by gi∣ving a part of the Legislative Power to the Com∣mons, in such inferiour matters only, as by To∣leration and Usurpation had been practised by the Commons. I find not that they desired an En∣largement of the Points which were the Object of their Power, but of the Persons, or Nobility that should be subject to their Decrees: the great Power of making War, of creating the greater Ma∣gistrates, of judging in Capital Crimes, remained in the Consuls, with the Senate, and Assembly of the Centuries.

For further manifestation of the broken and di∣stracted Government of Rome, it is fit to consider the Original Power of the Consuls, and of the Tribunes of the Commons, who are ordinarily called the Tri∣bunes of the People.

First, it is undeniable, that upon the expulsion of Kings, Kingly Power was not taken away, but only made Annual and changeable between two Consuls; who in their Turns, and by course had the Sovereignty, and all Regal Power; this ap∣pears plainly in Livy, who tells us, that Valerius Publicola being Consul, he himself alone ordained Page  130 a Law, and then assembled a General Session.

Turentillus Arsa inveyed and complained against the Consul's Government, as being so absolute, and in Name only less odious than that of Kings, but in Fact more cruel; for instead of one Lord the City had re∣ceived twain, having Authority beyond all Measure, un∣limited and infinite. Sextius and Licinus complain, that there would never be any indifferent Course, so long as the Nobles kept the Sovereign Place of Command, and the Sword to strike, whilst the poor Commons have only the Buckler; their Conclusion was, that it re∣mains, that the Commons bear the Office of Consuls too, for that were a Fortress of their Liberty; from that day forward, shall the Commons be Partakers of those things, wherein the Nobles now surpass them, namely Sovereign Rule and Authority.

The Law of the twelve Tribes affirm, Regio im∣perio duo sunto, iique Consules appellantur. Let two have Regal Power, and let them be called Consuls: also the Judgment of Livy is, that the Sovereign Power was translated from Consuls to Decemvirs, as before from Kings to Consuls. These are proofs sufficient to shew the Royal Power of the Consuls.

About sixteen years after the first Creation of Consuls, the Commons finding themselves much run into Debt, by wasting their Estates in following the Wars; and so becoming, as they thought, oppressed by Usury, and cast into Prison by the Judgment, and Sentence of the Consuls, they grie∣vously complained of Usury, and of the Power of the Consuls, and by Sedition prevailed, and obtain∣ed Leave to choose among themselves Magistrates called Tribunes of the People, who by their Inter∣cession might preserve the Commons from being op∣pressed, Page  131 and suffering Wrong from the Consuls: and it was further agreed, that the Persons of those Tribunes should be sacred, and not to be touched by any. By means of this Immunity of the Bodies of the Tribunes from all Arrests or other Violence, they grew in time by Degrees to such Boldness, that by stopping the Legal Proceedings of the Con∣suls (when they pleased to intercede) they raised such an Anarchy oft-times in Government, that they themselves might act, and take upon them, what Power soever they pleased (though it belonged not to them.) This Gallantry of the Tribunes was the Cause, that the Commons of Rome, who were di∣ligent Pretenders to Liberty, and the great Masters of this part of Politicks, were thought the only fa∣mous Preservers, and Keepers of the Liberty of Rome. And to do them right, it must be confessed, they were the only men that truly understood the Rights of a Negative Voice; if we will allow every man to be naturally free till they give their Consent to be bound, we must allow every particular Person a Negative Voice; so that when as all have equal Power, and are as it were Fellow-Magistrates or Officers, each man may impeach, or stop his Fellow-Officers in their Proceedings, this is grounded upon the general Reason of all them, which have any thing in Common, where he which forbiddeth, or denieth, hath most Right; because his Condition in that Case is better than his which commandeth, or moveth to proceed; for every Law or Command, is in it self an Innovation, and a Diminution of some part of popular Liberty; for it is no Law ex∣cept it restrain Liberty; he that by his Negative Voice doth forbid or hinder the Proceeding of a new Page  132 Law, doth but preserve himself in that Condition of Liberty, wherein Nature hath placed him, and whereof he is in present Possession; the Conditi∣on of him thus in Possession being the better, the stronger is his Prohibition, any single man hath a juster Title to his Negative Voice, than any Multitude can have to their Affirmative; to say the People are free, and not to be governed, but by their own Consent, and yet to allow a major part to rule the whole, is a plain Contradiction, or a de∣struction of natural Freedom. This the Commons of Rome rightly understood, and therefore the tran∣scendent Power of the Negative Voice of any one Tribune, being able of it self to stay all the Pro∣ceedings, not of the Consuls and Senate only, and o∣ther Magistrates, but also of the rest of his Fellow-Tribunes, made them seem the powerfullest men in all Rome; and yet in Truth they had no Power or Ju∣risdiction at all, nor were they any Magistrates, nor could they lawfully call any man before them, for they were not appointed for Administration of Justice, but only to oppose the Violence, and Abuse of Magistrates, by interceding for such as appealed, being unjustly oppressed; for which Purpose at first they sate only without the Door of the Senate, and were not permitted to come within the Doors: this Negative Power of theirs was of force only to hinder, but not to help the Proceedings in Courts of Justice; to govern, and not to govern the Peo∣ple. And though they had no Power to make Laws, yet they took upon them to propound Laws, and flattered and humoured the Commons by the Agrarian and Frumentarian Laws, by the first they divided the Common Fields, and conquered Lands Page  133 among the Common People; and by the latter, they afforded them Corn at a cheaper or lower price: by these means these Demagogues or Tribunes of the Commons led the Vulgar by the Noses, to allow whatsoever Usurpations they pleased to make in Go∣vernment.

The Royal Power of the Consuls was never ta∣ken away from them by any Law that I hear of, but continued in them all the time of their pretend∣ed popular Government, to the very last, though repined at, and opposed in some particulars by the Commons.

The No-Power, or Negative Power of the Tri∣bunes, did not long give content to the Com∣mons, and therefore they desired, that one of the Consuls might be chosen out of the Commonalty: the eager propounding of this Point for the Com∣mons, and the diligent opposing of it by the No∣bility or Senate, argues how much both Parties regarded the Sovereign Power of a Consul; the Dispute lasted fourscore years within two: the Tribunes pressing it upon all advantages of oppor∣tunity, never gave over till they carried it by strong hand, or stubbornness, hindering all Elections of the Curule, or greater Magistrates, for five years together, whereby the Nobles were forced to yield the Commons a Consul's Place, or else an Anarchy was ready to destroy them all, and yet the Nobility had for a good while allowed the Commons Milita∣ry Tribunes with Consular Power, which, in effect or substance, was all one with having one of the Consuls a Commoner, so that it was the bare Name of a Consul which the Commons so long strived for with the Nobility: In this contention, Page  134 some Years Consuls were chosen, some years Mili∣tary Tribunes in such Confusion, that the Roman Historians cannot agree among themselves, what Consuls to assign, or name for each Year, although they have Capitoline Tables, Sicilian and Greek Re∣gisters, and Kalenders, Fragments of Capitoline Marbles, linen Books or Records to help them: a good while the Commons were content with the Liber∣ty of having one of the Consuls a Commoner; but about fourscore years after they enjoyed this Pri∣vilege, a Desire took them to have it Enacted, that a Decree of the Commons called a Plebiscitum might be observed for a Law, Hortensius the Dictator yielded to enact it, thereby to bring back the Sedi∣tious Commons, who departed to Janiculum on the other side of Tybur, because they were deeply engaged in Debt in regard of long Seditions and Dissensions. The Eleventh Book of Livy, where this Sedition is set down, is lost; we have on∣ly a touch of it in Florus his Epitome, and Saint Au∣gustine mentions the Plundering of many Houses by the Commons at their departing: this Sedition was above 220 years after the Expulsion of Kings, in all which time, the People of Rome got the Spoyl of almost all Italy, and the wealth of very many rich Cities: and yet the Commons were in so great Penury, and over-whelmed with Debts, that they fell to plunder the rich Houses of the Citizens, which sounds not much for the Honour of a popular Government. This communicating of a Legislative Power to the Commons, touching Power of en∣franchising Allies, Judgments Penal, and Fines, and those Ordinances that concerned the Good of the Commons called Plebiscita, was a dividing Page  135 of the Supreme Power, and the giving a Share of it to others, as well as to the Consuls, and was in effect to destroy the Legislative Power, for to have two Supremes is to have none, because the one may destroy the other, and is quite contrary to the indivisible nature of Sovereignty. The Truth is, the Consuls, having but annual Sove∣reignty, were glad for their own Safety, and Ease in Matters of great Importance, and Weight, to call together sometimes the Senate, who were their ordinary Council, and many times the Centuries of the People, who were their Council extraordi∣nary, that by their Advice they might countenance, and strengthen such Actions as were full of Danger and Envy: and thus the Consuls by weakening their Original Power brought the Government to Confu∣sion, Civil Dissension, and utter Ruine: so dange∣rous a thing it is to shew Favour to Common People, who interpret all Graces and Favours for their Rights, and just Liberties: the Consuls fol∣lowing the Advice of the Senate or People, did not take away their Right of Governing no more than Kings lose their Supremacy by taking Advice in Parliaments.

Not only the Consuls, but also the Pretors and Censors (two great Offices, ordained only for the ease of the Consuls, from whom an Appeal lay to the Consuls) did in many things exercise an Arbi∣trary or Legislative power in the Absence of the Consuls, they had no Laws to limit them: for many Years after the Creation of Consuls, ten men were sent into Greece to choose Laws; and after the twelve Tables were confirmed, whatsoever the Pretors, who were but the Consuls Substitutes, did Page  136 command, was called jus honorarium; and they were wont at the Entrance into their Office to collect and hang up for Publick View, a Form of Administration of Justice which they would observe, and though the edictum Praetoris, expired with the Pretors Office, yet it was called Edictum perpetuum.

What Peace the Low-Countries have found since their Revolt is visible; it is near about an hundred Years since they set up for themselves, of all which time only twelve years they had a Truce with the Spaniard, yet in the next year, after the Truce was agreed upon, the War of Juliers brake forth, which engaged both Parties; so that upon the matter, they have lived in a continual War, for almost an hun∣dred years; had it not been for the Aid of their Neighbours, they had been long ago swallowed up, when they were glad humbly to offer their new hatch'd Commonweal, and themselves Vassals to the Queen of England, after that the French King Henry the Third had refused to accept them as his Subjects; That little Truce they had, was almost as costly as a War; they being forced to keep about thirty thousand Souldiers continually in Garrison. Two things they say they first fought about, Religi∣on and Taxes, and they have prevailed it seems in both, for they have gotten all the Religions in Christendom, and pay the greatest Taxes in the World; they pay Tribute half in half for Food, and most necessary things, paying as much for Tri∣bute as the price of the thing sold; Excise is paid by all Retailers of Wine, and other Commodities; for each Tun of Beer six Shillings, for each Cow for the Pail two Stivers every Week: for Oxen, Horses, Sheep, and other Beasts sold in the Market Page  137 the twelfth part at least; be they never so oft sold by the year to and fro, the new Master still pays as much: they pay five Stivers for every Bushel of their own Wheat, which they use to grind in Publick Mills: These are the Fruits of the Low-Country War.

It will be said that Venice is a Commonwealth that enjoys Peace. She indeed of all other States hath enjoyed of late the greatest Peace; but she owes it not to her kind of Government, but to the natural Situation of the City, having such a Bank in the Sea of near threescore Miles, and such Mar∣shes towards the Land, as make her unapproacha∣ble by Land, or Sea; to these she is indebted for her Peace at home, and what Peace she hath abroad she buys at a dear Rate; and yet her Peace is little better than a continued War; The City always is in such perpetual Fears, that many besieged Cities are in more Security; a Senator or Gentleman dares not converse with any Stranger in Venice, shuns Ac∣quaintance, or dares not own it: they are no bet∣ter than Bandito's to all humane Society. Nay, no People in the World live in such Jealousie one of another; hence are their intricate Solemnities, or rather Lotteries in Election of their Magistrates, which in any other Place, would be ridiculous and useless. The Senators or Gentlemen are not only jealous of the Common People, whom they keep disarmed, but of one another, they dare not trust any of their own Citizens to be a Leader of their Army, but are forced to hire, and entertain Fo∣reign Princes for their Generals, excepting their Citizens from their Wars, and hiring others in their Places; it cannot be said, that People live Page  138 in Peace, which are in such miserable Fears con∣tinually.

The Venetians at first were subject to the Roman Emperour; and for fear of the Invasion of the Hunnes forsook Padua, and other Places in Italy; and retired with all their Substance to those Islands where now Venice stands: I do not read they had any Leave to desert the defence of their Prince and Country, where they had got their Wealth, much less to set up a Government of their own; it was no better than a Rebellion, or Revolting from the Roman Empire. At first they lived under a kind of Oligarchy; for several Islands had each a Tribune, who all met, and governed in common: but the dangerous Seditions of their Tribunes, put a ne∣cessity upon them to choose a Duke for Life, who, for many hundreds of years, had an Absolute Power; under whose Government Venice flourished most, and got great Victories, and rich Possessions. But by insensible degrees, the Great Council of the Gentlemen have for many years been lessening the Power of their Dukes, and have at last quite taken it away. It is a strange Errour for any man to believe, that the Government of Venice hath been always the same that it is now: he that reads but the History of Venice, may find for a long time a Sovereign Power in their Dukes: and that for these last two hundred years, since the diminishing of that Power, there have been no great Victories and Conquests ob∣tained by that Estate.

That which exceeds admiration, is, that Contarene hath the confidence to affirm the present Govern∣ment of Venice to be a mixed Form of Monarchy, Democraty, and Aristocraty: For, whereas he makes Page  139 the Duke to have the Person and Shew of a King; he after confesseth, that the Duke can do nothing at all alone, and being joyned with other Magi∣strates, he hath no more Authority than any of them: also the Power of the Magistrates is so small, that no one of them, how great soever he be, can determine of any thing of moment, without the al∣lowance of the Council. So that this Duke is but a man dressed up in Purple, a King only in Pomp and Ornament, in Power but a Senator, within the City a Captive, without a Traytor, if he go with∣out Leave. As little reason is there to think a Po∣pular Estate is to be found in the great Council of Venice, or S. P. Q. Ʋ. for it doth not consist of the fortieth part of the People, but only of those they call Patritians or Gentlemen; for the Com∣mons, neither by themselves, nor by any chosen by them for their Representors, are admitted to be any part of the Great Council: and if the Gentlemen of Venice have any Right to keep the Government in their own hands, and to exclude the Commons, they never had it given them by the People, but at first were beholding to Monarchy for their Nobility. This may further be noted, that though Venice of late enjoyed Peace abroad, yet it had been with that Charge, either for Fortification and Defence, or in Bribery so excessive, whereby of late upon any terms they purchased their Peace, that it is said their Taxes are such, that Christians generally live better under the Turk, than under the Venetians, for there is not a grain of Corn, a spoonful of Wine, Salt, Eggs, Birds, Beasts, Fowl, or Fish sold, that pay∣eth not a certain Custom: upon occasions the Labou∣rers and Crafts-men pay a Rate by the Poll monthly, Page  140 they receive incredible Gains by Usury of the Jews; for in every City they keep open Shops of Interest, taking Pawns after fifteen in the hundred, and if at the years end it be not redeemed, it is forfeited, or at the least, sold at great loss. The Revenues which the very Courtezans pay for Toleration, maintains no less than a dozen of Gallies.

By what hath been said, it may be judged how unagreeable the Popular Government of Rome here∣tofore, and of Venice, and the Ʋnited Provinces at present, are, either for Religion or Peace (which two are principal Ingredients of Government) and so consequently not fit to be reckoned for Forms, since whatsoever is either good or tolerable in ei∣ther of their Governments, is borrowed or patch∣ed up of a broken, and distracted Monarchy. Last∣ly, though Venice and the Low Countries are the only remarkable Places in this Age that reject Monarchy; yet neither of them pretend their Go∣vernment to be founded upon any Original Right of the People, or have the Common People any Power amongst them, or any chosen by them. Never was any Popular Estate in the World famous for keeping themselves in peace; all their glory hath been for Quarrelling and Fight∣ing.

Those that are willing to be perswaded, that the Power of Government is originally in the Peo∣ple, finding how impossible it is for any People to exercise such Power, do surmise, that though the People cannot Govern, yet they may choose Repre∣sentors or Trustees, that may manage this Power for the People, and such Representors must be surmised to be the People. And since such Representors can∣not Page  141 truly be chosen by the People, they are fain to divide the People into several Parts, as of Provin∣ces, Cities, and Burrough-Towns, and to allow to every one of those Parts to choose one Re∣presentor or more of their own: and such Re∣presentors, though not any of them be chosen by the whole, or major part of the People, yet still must be surmised to be the People; nay, though not one of them be chosen either by the People, or the major part of the People of any Province, Ci∣ty, or Burrough, for which they serve, but only a smaller part, still it must be said to be the Peo∣ple. Now when such Representors of the People do Assemble or meet, it is never seen that all of them can at one time meet together; and so there never appears a true, or full Representation of the whole People of the Nation, the Representors of one part or other being absent, but still they must be imagined to be the People. And when such imperfect Assemblies be met, though not half be present, they proceed: and though their number be never so small, yet it is so big, that in the de∣bate of any business of moment, they know not how to handle it, without referring it to a fewer number than themselves, though themselves are not so many as they should be. Thus those that are cho∣sen to represent the People, are necessitated to choose others, to represent the Representors themselves; a Trustee of the North doth delegate his Power to a Trustee of the South; and one of the East may sub∣stitute one of the West for his Proxy: hereby it comes to pass, that Publick Debates which are imagined to be referred to a General Assembly of a Kingdom, are contracted into a particular or private Page  142 Assembly, than which nothing can be more de∣structive, or contrary to the nature of Publick Assemblies. Each Company of such Trustees hath a Prolocutor, or Speaker; who, by the help of three or four of his Fellows that are most active, may easily comply in gratifying one the other, so that each of them in their turns may sway the Trustees, whilst one man, for himself or his Friend, may rule in one Business, and another man for himself or his Friend prevail in another cause, till such a number of Trustees be reduced to so many petty Monarchs as there be men of it. So in all Popularities, where a General Council, or great Assembly of the People meet, they find it impossi∣ble to dispatch any great Action, either with Ex∣pedition or Secrecy, if a publick free Debate be admitted; and therefore are constrained to Epi∣tomize, and sub-epitomize themselves so long, till at last they crumble away into the Atomes of Monarchy, which is the next degree to Anarchy; for Anarchy is nothing else but a broken Monar∣chy, where every man is his own Monarch, or Go∣vernour.

Whereas the Power of the People in choosing both their Government and Governours is of late highly magnified, as if they were able to choose the best and excellentest men for that purpose. We shall find it true what Aristotle hath affirmed, that to choose well is the office of him that hath Knowledge; none can choose a Geometrician but he that hath skill in Geometry, l. 3. c. 11. for, saith he, All men esteem not Excellency to be one and the same, l. 3. c. 17.

Page  143A great deal of talk there is in the World of the Freedom and Liberty that they say is to be found in Popular Commonweals; it is worth the en∣quiry how far, and in what sence this Speech of Liberty is true. True Liberty is for every man to do what he list, or to live as he please, and not to be tied to any Laws. But such Liberty is not to be found in any Commonweal; for there are more Laws in Popular Estates than any where else; and so con∣sequently less Liberty: and Government many say was invented to take away Liberty, and not to give it to every man; such Liberty cannot be; if it should, there would be no Government at all: therefore Aristotle, lib. 6. cap. 4. It is profitable not to be lawful to do every thing that we will, for pow∣er to do what one will, cannot restrain that Evil that is in every man; so that true Liberty cannot, nor should not be in any Estate. But the only Liberty that the talkers of Liberty can mean, is a Liberty for some men to Rule and to be Ruled, for so Aristo∣tle expounds it; one while to Govern, another while to be Governed; to be a King in the Forenoon, and a Subject in the Afternoon; this is the only Li∣berty that a Popular Estate can brag of, that where a Monarchy hath but one King, their Government hath the Liberty to have many Kings by turns. If the Common People look for any other Liberty, ei∣ther of their Persons or their Purses, they are pitiful∣ly deceived, for a perpetual Army and Taxes are the principal materials of all Popular Regiments: never yet any stood without them, and very seldom con∣tinued with them; many Popular Estates have start∣ed up, but few have lasted; It is no hard matter for any kind of Government to last one, or two, or Page  144 three days, l. 6. c. 5. For all such as out of hope of Liberty, attempt to erect new Forms of Govern∣ment, he gives this prudent Lesson. We must look well into the continuance of Time, and remembrance of many Years, wherein the means tending to establish Com∣munity had not lain hid, if they had been good and use∣ful; for almost all things have been found out, albeit some have not been received, and other some have been rejected, after men have had experience of them; L. 2. c. 5.

It is believed by many, that at the very first As∣sembling of the People, it was unanimously agreed in the first place, that the Consent of the major part should bind the whole; and that though this first A∣greement cannot possibly be proved, either how, or by whom it should be made; yet it must necessa∣rily be believed or supposed, because otherwise there could be no lawful Government at all. That there could be no lawful Government, except a General Consent of the whole People be first sur∣mised, is no sound Proposition; yet true it is, that there could be no Popular Government without it. But if there were at first a Government without being beholden to the People for their Consent, as all men confess there was, I find no reason but that there may be so still, without asking Leave of the Multitude.

If it be true, that men are by nature free-born, and not to be governed without their own Con∣sents, and that Self-preservation is to be regard∣ed in the first place, it is not lawful for any Go∣vernment but Self-Government to be in the World, it were sin in the People to Desire, or attempt to Consent to any other Government: if the Fa∣thers Page  145 will promise for themselves to be Slaves, yet for their Children they cannot, who have always the same Right to set themselves at Li∣berty, which their Fathers had to Enslave them∣selves.

To pretend that a major part, or the silent Con∣sent of any part, may be interpreted to bind the whole People, is both unreasonable and unnatu∣ral; it is against all Reason for men to bind o∣thers, where it is against Nature for men to bind themselves. Men that boast so much of natural Freedom, are not willing to consider how con∣tradictory and destructive the power of a major part is to the natural Liberty of the whole Peo∣ple; the two grand Favourites of the Subjects, Li∣berty and Property (for which most men pretend to strive) are as contrary as Fire to Water, and can∣not stand together. Though by Humane Laws in Voluntary Actions, a major part may be tolerated to bind the whole Multitude, yet in Necessary Actions, such as those of Nature are, it cannot be so. Be∣sides, if it were possible for the whole People to choose their Representors, then either every, each one of these Representors ought to be particularly chosen by the whole People, and not one Repre∣sentor by one part, and another Representor by an∣other part of the People, or else it is necessary, that continually the entire Number of the Representors be present, because otherwise the whole People is ne∣ver represented.

Again, it is impossible for the People, though they might and would choose a Government, or Governours, ever to be able to do it: for the Peo∣ple, to speak truly and properly, is a thing or Body Page  146 in continual Alteration and Change, it never conti∣nues one Minute the same, being composed of a Multitude of Parts, whereof divers continually de∣cay and perish, and others renew and succeed in their places, they which are the People this Minute, are not the People the next Minute. If it be answered, that it is impossible to stand so strictly, as to have the Consent of the whole People; and therefore that which cannot be, must be supposed to be the Act of the whole People: This is a strange Answer, first to affirm a Necessity of having the Peoples Con∣sent, then to confess an Impossibility of having it. If but once that Liberty, which is esteemed so sa∣cred, be broken, or taken away but from one of the meanest or basest of all the People; a wide Gap is thereby opened for any Multitude whatsoever, that is able to call themselves, or whomsoever they please, the People.

Howsoever men are naturally willing to be per∣swaded, that all Sovereignty flows from the Con∣sent of the People, and that without it no true Title can be made to any Supremacy; and that it is so currant an Axiom of late, that it will certainly pass without Contradiction as a late Exercitator tells us: yet there are many and great Difficulties in the Point never yet determined, not so much as dispu∣ted, all which the Exercitator waves and declines, professing he will not insist upon the Distinctions, touching the manner of the Peoples passing their Con∣sent, nor determine which of them is sufficient, and which not to make the Right or Title; whether it must be Antecedent to Possession, or may be consequent: Ex∣press, or Tacite: Collective, or Representative: Absolute, or conditionated: Free, or Inforced: Revocable, or Ir∣revocable.Page  147 All these are material Doubts con∣cerning the Peoples Title, and though the Exer∣citator will not himself determine what consent is sufficient, and what not, to make a Right or Title, yet he might have been so courteous, as to have di∣rected us, to whom we might go for Resolution in these Cases. But the Truth is, that amongst all them that plead the Necessity of the Consent of the People, none of them hath ever toucht upon these so necessary Doctrines; it is a Task it seems too difficult, otherwise surely it would not have been neglected, considering how necessary it is to resolve the Conscience, touching the manner of the Peo∣ples passing their Consent; and what is sufficient, and what not, to make, or derive a Right, or Title from the People.

No Multitude or great Assembly of any Nation, though they be all of them never so good and ver∣tuous, can possibly govern; this may be evidently discovered by considering the Actions of great and numerous Assemblies, how they are necessitated to relinquish that Supreme Power, which they think they exercise, and to delegate it to a few. There are two Parts of the Supreme Power, the Legisla∣tive, and the Executive, neither of these can a great Assembly truly act. If a new Law be to be made it may in the General receive the Proposal of it from one or more of the General Assembly, but the forming, penning, or framing it into a Law, is committed to a few, because a great number of Persons cannot without tedious, and dilatory De∣bates, examine the Benefits and Mischiefs of a Law. Thus in the very first Beginning the Intention of a General Assembly is frustrated; then after a Law is Page  148 penned or framed, when it comes to be question∣ed, whether it shall pass or nay; though it be Vo∣ted in a full Assembly, yet by the Rules of the As∣sembly, they are all so tied up, and barred from a free and full Debate; that when any man hath given the Reasons of his Opinion; if those Rea∣sons be argued against, he is not permitted to reply in Justification or Explanation of them, but when he hath once spoken, he must be heard no more: which is a main Denial of that Freedom of Debate, for which the great Assembly is al∣ledged to be ordained in the high Point of Legisla∣tive Power.

The same may be said, touching the Executive Power, if a cause be brought before a great Assem∣bly, the first thing done, is to refer, or commit it to some few of the Assembly, who are trusted with the examining the Proofs, and Witnesses, and to make Report to the General Assembly; who upon the Report proceed to give their Judgments with∣out any publick hearing, or interrogating the Wit∣nesses, upon whose Testimonies diligently exami∣ned every man that will pass a conscientious Judg∣ment is to rely. Thus the Legislative and Executive Power are never truly practised in a great Assembly; the true Reason whereof is, if Freedom be given to Debate, never any thing could be agreed upon without endless Disputes; meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees.

Those Governments that seem to be popular are kinds of petty Monarchies, which may thus appear: Government is a Relation between the Gover∣nours, and the governed, the one cannot be with∣out Page  149 the other, mutuò se ponunt & auferunt; where a Command or Law proceeds from a major part, there those individual Persons that concurred in the Vote, are the Governours, because the Law is only their Will in particular: the Power of a major Part being a contingent, or casual thing, expires in the very Act it self of Voting, which Power of a major Part is grounded upon a Sup∣position, that they are the stronger Part; when the Vote is past, these Votes, which are the major Part, return again, and are incorporated into the whole Assembly, and are buried as it were in that Lump, and no otherwise considered; the Act or Law ordained by such a Vote, loseth the Makers of it, before it comes to be obeyed; for when it comes to be put in Execution, it be∣comes the Will of those who enjoyn it, and force Obedience to it, not by Virtue of any Power de∣rived from the Makers of the Law. No man can say, that during the Reign of the late Queen Eli∣zabeth, that King Henry the Eighth, or Edward the Sixth did govern, although that many of the Laws that were made in those two former Princes times, were observed, and executed under her Go∣vernment; but those Laws, though made by her Predecessours, yet became the Laws of her present Government; who willed and commanded the Exe∣cution of them, and had the same Power to correct, interpret, or mitigate them, which the first Makers of them had; every Law must always have some present known Person in Being, whose Will it must be to make it a Law for the Present; this cannot be said of the major Part of any Assem∣bly, because that major part instantly ceaseth, as Page  150 soon as ever it hath voted: an infallible Argument whereof is this, that the same major part after the Vote given, hath no Power to correct, alter, or mi∣tigate it, or to Cause it to be put in Execution; so that he that shall act, or cause that Law to be exe∣cuted, makes himself the Commander, or willer of it, which was originally the Will of others: It is said by Mr. Hobs in his Leviathan, page 141. Nothing is Law, where the Legislator cannot be known, for there must be manifest Signs, that it proceedeth from the Will of the Sovereign; there is requisite, not only a Declarati∣on of the Law, but also sufficient Signs of the Author and the Authority.

That Senate or great Council, wherein it is con∣ceived the Supreme, or Legislative Power doth rest, consists of those Persons who are actually Subjects at the very same time, wherein they exercise their Legislative Power, and at the same instant may be guilty of breaking one Law, whilst they are ma∣king another Law; for it is not the whole and en∣tire Will of every particular Person in the Assem∣bly, but that part only of his Will, which acci∣dentally falls out to concur with the Will of the greater part: So that the Sharers of the Legislative Power have each of them, perhaps not a hundredth part of the Legislative Power (which in it self is indivisible) and that not in Act, but in Possibility, only in one particular Point for that Moment, whilst they give their Vote. To close this Point which may seem strange and new to some, I will produce the Judgment of Bodin, in his sixth Book of a Com∣monweal, and the fourth Chapter; his words are, The chief Point of a Commonweal, which is the Right of Sovereignty, cannot be, nor insist, to speak properly, Page  151 but in Monarchy; for none can be Sovereign in a Com∣monweal, but one alone; if they be two, or three, or more, no one is Sovereign, for that no one of them can give or take a Law from his Companion: and although we imagine a Body of many Lords; or of a whole Peo∣ple to hold the Sovereignty, yet hath it no true Ground nor Support, if there be not a Head with absolute Power to unite them together, which a simple Magistrate without Sovereign Authority cannot do. And if it chance that the Lords, or Tribes of the People be di∣vided (as it often falls out) then must they fall to Arms one against another: and although the greatest part be of one Opinion, yet may it so happen, as the lesser part, having many Legions, and making a Head, may oppose it self against the greater Number, and get the Victory. We see the Difficulties which are, and always have been in popular Estates, whereas they hold contrary Parts, and for divers Magistrates, some de∣mand Peace, others War; some will have this Law, o∣thers that; some will have one Commander, others ano∣ther; some will treat a League with the King of France, others with the King of Spain, corrupted or drawn, some one Way, some another, making open War, as hath been seen in our Age amongst the Gri∣sons, &c.

Upon these Texts of Aristotle fore-cited, and from the Mutability of the Roman Popularity, which Aristotle lived not to see, I leave the Learn∣ed to consider, whether it be not probable that these, or the like Paradoxes may be infer∣red to be the plain Mind of Aristotle, viz. 1. That there is no Form of Government, but Monar∣chy only. 2. That there is no Monarchy, but Pa∣ternal.Page  152 3. That there is no Paternal Monarchy, but Absolute, or Arbitrary. 4. That there is no such thing as an Aristocraty or Democraty. 5. That there is no such Form of Government as a Tyran∣ny. 6. That the People are not born Free by Na∣ture.

Page  153

DIRECTIONS FOR Obedience to GOVERNMENT IN Dangerous or Doubtful Times.

ALL those who so eagerly strive for an Original Power to be in the Peo∣ple, do with one Consent acknow∣ledge, that Originally the Su∣preme Power was in the Fatherhood; and that the first Kings were Fathers of Families: This is not only evident, and affirmed by Ari∣stotle; but yielded unto by Grotius, Mr. Sel∣den, Mr. Hobbs, Mr. Ascam; and all others of that Party, not one excepted, that I know of.

Now for those that confess an original Subjection in Children, to be governed by their Parents, to dream of an original Free∣dom Page  154 in Mankind, is to contradict them∣selves; and to make Subjects to be Free, and Kings to be Limited; to imagine such Pactions and Contracts between Kings and People, as cannot be proved ever to have been made, or can ever be described or fan∣cied, how it is possible for such Contracts ever to have been, is a boldness to be won∣dred at.

Mr. Selden confesseth, that Adam, by dona∣tion from God, was made the general Lord of all things, not without such a private Domini∣on to himself, as (without his Grant) did ex∣clude his Children. And by Donation, or As∣signation, or some kind of Concession (before he was dead, or left any Heir to succeed him) his Children had their distinct Territories, by Right of Private Dominion. Abel had his Flocks, and Pastures for them, Cain had his Fields for Corn, and the Land of Nod, where he built him∣self a City.

It is confessed, that in the Infancy of the World, the Paternal Government was Monarchical; but when the World was replenished with multitude of People, then the Paternal Government ceased, and was lost; and an Elective kind of Government by the People, was brought into the World. To this it may be answered, That the Pa∣ternal Power cannot be lost; it may either Page  155 be transferr'd or usurped; but never lost, or ceaseth. God, who is the giver of Pow∣er, may transfer it from the Father to some other; he gave to Saul a Fatherly Power over his Father Kish, God also hath gi∣ven to the Father a Right or Liberty to alien his Power over his Children, to any other; whence we find the Sale and Gift of Children, to have been much in Use in the beginning of the World, when men had their Servants for a Possession and an Inhe∣ritance as well as other Goods: whereup∣on we find the Power of Castrating, and making Eunuchs much in Use in Old Times. As the Power of the Father may be lawful∣ly transferr'd or aliened, so it may be un∣justly usurped: And in Usurpation, the Title of an Usurper is before, and better than the Title of any other than of him that had a former Right: for he hath a Possession by the permissive Will of God, which Permission, how long it may endure, no man ordinarily knows. Every man is to preserve his own Life for the Service of God, and of his King or Father, and is so far to obey an Usurper, as may tend not on∣ly to the preservation of his King and Fa∣ther, but sometimes even to the preserva∣tion of the Usurper himself, when proba∣bly he may thereby be reserved to the Cor∣rection, Page  156 or Mercy of his true Superiour; though by Humane Laws, a long Prescription may take away Right, yet Divine Right never dies, nor can be lost, or taken a∣way.

Every man that is born, is so far from be∣ing Free-born, that by his very Birth he be∣comes a Subject to him that begets him: un∣der which Subjection he is always to live, un∣less by immediate Appointment from God, or by the Grant or Death of his Father, he be∣come possessed of that Power to which he was subject.

The Right of Fatherly Government was ordained by God, for the preservation of Mankind; if it be usurped, the Usurper may be so far obeyed, as may tend to the preservation of the Subjects, who may thereby be enabled to perform their Duty to their true and right Sovereign, when time shall serve: in such Cases to obey an Usurper, is properly to obey the first and right Governour, who must be presumed to desire the safety of his Subjects: the Command of an Usurper is not to be obey∣ed in any thing tending to the destructi∣on of the Person of the Governour; whose Being in the first place is to be looked af∣ter.

It hath been said, that there have been Page  157 so many Usurpations by Conquest in all King∣doms, that all Kings are Usurpers, or the Heirs or Successors of Usurpers; and there∣fore any Usurper, if he can but get the pos∣session of a Kingdom, hath as good a Title as any other.

Answer. The first Usurper hath the best Title, being, as was said, in possession by the Permission of God; and where an U∣surper hath continued so long, that the knowledge of the Right Heir be lost by all the Subjects, in such a Case an Usurper in possession is to be taken and reputed by such Subjects for the true Heir, and is to be obeyed by them as their Father. As no man hath an infallible Certitude, but on∣ly a moral Knowledge, which is no other than a probable perswasion grounded upon a peaceable possession, which is a warrant for Subjection to Parents and Governours; for we may not say, because Children have no infallible, or necessary certainty who are their true Parents, that therefore they need not obey, because they are uncertain: it is sufficient, and as much as Humane Nature is capable of, for Children to rely upon a credible perswasion; for otherwise the Command∣ment of Honour thy Father, would be a vain Commandment, and not possible to be ob∣served.

Page  158By Humane positive Laws, a Possession time out of mind takes away, or barrs a former Right, to avoid a general Mischief, of bringing all Right into a Disputation not decideable by proof, and consequently to the overthrow of all Civil Government, in Grants, Gifts, and Contracts, between man and man: But in Grants and Gifts that have their Original from God or Nature, as the Power of the Father hath, no Inferiour Power of man can limit, nor make any Law of Prescription against them: upon this ground is built that Common Maxim, that Nullum tempus occurrit regi, No time bars a King.

All Power on Earth is either derived or usurped from the Fatherly Power, there be∣ing no other Original to be found of any Power whatsoever; for if there should be granted two sorts of Power without any Subordination of one to the other, they would be in perpetual strife which should be Supreme, for two Supremes cannot a∣gree; if the Fatherly Power be Supreme, then the Power of the People must be sub∣ordinate, and depend on it; if the Power of the People be Supreme, then the Father∣ly Power must submit to it, and cannot be exercised without the Licence of the Peo∣ple, which must quite destroy the Frame Page  159 and course of Nature. Even the Power which God himself exerciseth over Man∣kind is by Right of Fatherhood; he is both the King and Father of us all; as God hath exalted the Dignity of Earthly Kings, by communicating to them his own Title, by saying they are gods; so on the other side, he hath been pleased as it were to hum∣ble himself, by assuming the Title of a King to express his Power, and not the Title of any popular Government; we find it is a punishment to have no King, Hosea, ch. 3.4. and promised, as a Blessing to Abra∣ham, Gen. 17.6. that Kings shall come out of thee.

Every man hath a part or share in the preservation of Mankind in General, he that usurps the Power of a Superiour, thereby puts upon himself a Necessity of acting the Duty of a Superiour in the Pre∣servation of them over whom he hath usurp∣ed, unless he will aggravate one heinous Crime, by committing another more hor∣rid; he that takes upon him the Power of a Superiour sins sufficiently, and to the Pur∣pose: but he that proceeds to destroy both his Superiour, and those under the Superi∣ours Protection, goeth a Strain higher, by adding Murther to Robbery; if Govern∣ment be hindered, mankind perisheth, an Page  160 Usurper by hindering the Government of another, brings a Necessity upon himself to govern, his Duty before Usurpation was only to be ministerial, or instrumental in the preservation of others by his Obedience; but when he denies his own, and hinders the Obedience of others, he doth not only not help, but is the Cause of the Distra∣ction in hindering his Superiour to perform his Duty, he makes the Duty his own: if a Superiour cannot protract, it is his part to desire to be able to do it, which he cannot do in the Future if in the present they be destroyed for want of Government: therefore it is to be presumed, that the Su∣periour desires the preservation of them that should be subject to him; and so like∣wise it may be presumed, that an Usurper in general doth the Will of his Superiour, by preserving the People by Government, and it is not improper to say, that in obey∣ing an Usurper, we may obey primarily the true Superiour, so long as our Obedience aims at the preservation of those in Subjecti∣on, and not at the Destruction of the true Governour. Not only the Usurper, but those also over whom Power is usurped, may joyn in the preservation of themselves, yea, and in the preservation sometimes of the Usurper himself.

Page  161Thus there may be a conditional Duty, or Right in an Usurper to govern; that is to say, supposing him to be so wicked as to usurp, and not willing to surrender or forgo his Usurpa∣tion, he is then bound to protect by Govern∣ment, or else he encreaseth, and multiplieth his Sin.

Though an Usurper can never gain a Right from the true Superiour, yet from those that are Subjects he may; for if they know no o∣ther that hath a better Title than the Usurper, then as to them the Usurper in Possession hath a true Right.

Such a qualified Right is found at first in all Usurpers, as is in Thieves who have stolen Goods, and during the time they are posses∣sed of them, have a Title in Law against all others but the true Owners, and such Usur∣pers to divers Intents and Purposes may be obeyed.

Neither is he only an Usurper who ob∣tains the Government, but all they are Partakers in the Usurpation, who have either failed to give Assistance to their lawful Sovereign, or have given Aid ei∣ther by their Persons, Estates or Counsels for the Destroying of that Governour, un∣der whose Protection they have been born and preserved; for although it should be granted, that Protection and Subjection are Page  162 reciprocal, so that where the first fails, the latter ceaseth; yet it must be remembred, that where a man hath been born under the Protection of a long and peaceable Go∣vernment, he owes an Assistance for the preservation of that Government that hath protected him, and is the Author of his own Disobedience.

It is said by some, that an usurped Pow∣er may be obeyed in things that are lawful: but it may not be obeyed not only in lawful things, but also in things indifferent: Obe∣dience in things indifferent, is necessary; not indifferent. For in things necessarily good God is immediately obeyed, Superi∣ours only by Consequence: If men com∣mand things evil, Obedience is due only by tolerating what they inflict: not by per∣forming what they require: in the first they declare what God commands to be done, in the latter what to be suffered, so it re∣mains, that things indifferent only are the proper Object of Humane Laws. Actions are to be considered simply and alone, and so are good as being Motions depending on the first Mover; or joyntly with Cir∣cumstances: And that in a double Manner. 1. In Regard of the Ability or Possibility whilest they may be done. 2. In the Act when they be performed: Before they be Page  163 done they be indifferent; but once breaking out into Act, they become distinctly Good or Evil according to the Circumstances which determine the same. Now an Action com∣manded, is supposed as not yet done (where∣upon the Hebrews call the Imperative Mood the first Future) and so remaineth many times indifferent.

Some may be of Opinion, that if Obe∣dience may be given to an Usurper in things indifferent, as well as to a lawful Power; that then there is as much Obedience due to an usurped Power, as to a lawful. But it is a Mistake; for though it be granted that in things indifferent, an Usurper may be obeyed, as well as a lawful Governour; yet herein lieth a main Difference, that some things are indifferent for a lawful Supe∣riour, which are not indifferent, but unlawful to an Usurper to enjoyn. Usurpation is the resisting, and taking away the Power from him, who hath such a former Right to go∣vern the Usurper, as cannot be lawfully taken away: so that it cannot be just for an U∣surper, to take Advantage of his own un∣lawful Act, or create himself a Title by con∣tinuation of his own Injustice, which ag∣gravates, and never extenuates his Crime: and if it never can be an Act indifferent for the Usurper himself to disobey his Law∣ful Page  164 Sovereign, much less can it be indifferent for him to command another to do that to which he hath no Right himself. It is only then a matter indifferent for an Usurper to command, when the Actions enjoyned are such; as the lawful Superiour is commanded by the Law of God, to provide for the bene∣fit of his Subjects, by the same, or other like Restriction of such indifferent things; and it is to be presumed, if he had not been hindered, would have commanded the same, or the like Laws.

Page  [unnumbered]

OBSERVATIONS Concerning the Original of Government, Upon

  • Mr. HOBS his Leviathan.
  • Mr. MILTON against Salmatius.
  • H. GROTIUS De Jure Belli.
  • Mr. HUNTON'S Treatise of Mo∣narchy.


Arist. Pol. Lib. 4.

〈 in non-Latin alphabet 〉.

Page  [unnumbered] Page  [unnumbered]

THE PREFACE.

WITH no small Content I read Mr. Hobs's Book De Cive, and his Le∣viathan, about the Rights of Sove∣reignty, which no man, that I know, hath so amply and judiciously handled: I consent with him about the Rights of exercising Govern∣ment, but I cannot agree to his means of acqui∣ring it. It may seem strange I should praise his Building, and yet mislike his Foundation; but so it is, his Jus Naturae, and his Regnum In∣stitutivum, will not down with me: they ap∣pear full of Contradiction and Impossibilities; a few short Notes about them, I here offer, wishing he would consider, whether his Build∣ing would not stand firmer upon the Principles of Regnum Patrimoniale (as he calls it) both according to Scripture and Reason. Since he confesseth the Father, being before the Institu∣tion of a Commonwealth, was Originally an Absolute Sovereign, with Power of Life Page  [unnumbered] and Death, and that a great Family, as to the Rights of Sovereignty, is a little Monarchy. If, according to the order of Nature, he had bandled Paternal Government before that by Institution, there would have been little Liberty left in the Subjects of the Family to consent to Institution of Government.

In his pleading the Cause of the People, he arms them with a very large Commission of Array; which is, a Right in Nature for every Man, to war against every Man when he please: and also a Right for all the People to govern. This latter Point, although he affirm in Words, yet by Consequence he denies, as to me it seem∣eth.

He saith, a Representative may be of All, or but of a Part of the People. If it be of All, he terms it a Democraty, which is the Govern∣ment of the People. But how can such a Com∣monwealth be generated? for if every man Cove∣nant with every man, who shall be left to be the Representative? if All must be Representa∣tives, who will remain to Covenant? for he that is Sovereign makes no Covenant by his Doctrine. It is not All that will come together, that makes the Democraty, but All that have Power by Covenant; thus his Democraty by Institution fails.

The same may be said of a Democraty by Acquisition; for if all be Conquerours, who Page  [unnumbered] shall Covenant for Life and Liberty? and if all be not Conquerours, how can it be a Democraty by Conquest?

A Paternal Democraty I am confident he will not affirm; so that in conclusion the poor People are deprived of their Government, if there can be no Democraty, by his Princi∣ples.

Next, If a Representative Aristocratical of a Part of the People be free from Covenant∣ing, then that whole Assembly (call it what you will) though it be never so great, is in the state of Nature, and every one of that Assembly hath a Right not only to kill any of the Subjects that they meet with in the Streets, but also they all have a Natural Right to cut one anothers throats, even while they sit together in Council, by his Principles. In this miserable condition of War is his Representative Aristocratical by Institu∣tion.

A Commonwealth by Conquest, he teach∣eth, is then acquired, when the Vanquished, to avoid present Death, Covenanteth, that so long as his Life, and the liberty of his Body is al∣lowed him, the Victor shall have the Ʋse of it at his pleasure. Here I would know how the Liberty of the Vanquished can be allowed, if the Victor have the Ʋse of it at pleasure, or how it is possible for the Victor to perform his Co∣venant, except he could always stand by eve∣ry Page  [unnumbered] particular man to protect his Life and Li∣berty?

In his Review and Conclusion he resolves, that an ordinary Subject hath liberty to sub∣mit, when the means of his Life is within the Guards and Garisons of the Enemy. It seems hereby that the Rights of Sovereignty by Institu∣tion may be forfeited, for the Subject cannot be at liberty to submit to a Conquerour, except his former Subjection be forfeited for want of Protection.

If his Conquerour be in the State of Nature when he conquers, he hath a Right without any Covenant made with the conquered: If Conquest be defined to be the acquiring of Right of Sovereignty by Victory, why is it said, the Right is acquired in the Peoples Submission, by which they contract with the Victor, Promising Obedience for Life and Liberty? hath not every one in the state of Nature a Right to Sovereignty before Con∣quest, which only puts him in possession of his Right?

If his Conquerour be not in the state of Na∣ture, but a Subject by Covenant, how can he get a Right of Sovereignty by Conquest, when nei∣ther he himself hath Right to Conquer, nor Subjects a liberty to Submit? since a former Con∣tract lawfully made, cannot lawfully be broken by them.

Page  [unnumbered]I wish the Title of the Book had not been of a Commonwealth, but of a Weal Publick, or Commonweal, which is the true word, Care∣fully observed by our Translator of Bodin de Re∣publica into English. Many ignorant men are apt by the Name of Commonwealth to under∣stand a Popular Government, wherein Wealth and all things shall be Common, tending to the Levelling Community in the state of pure Na∣ture.

Page  [unnumbered] Page  165

OBSERVATIONS ON Mr. HOBS's LEVIATHAN: OR, HIS ARTIFICIAL MAN A Commonwealth.

I.

IF God created only Adam, and of a Piece of him made the Woman; and if by Generation from them two, as Parts of them, all Mankind be propagated: If also God gave to Adam not only the Dominion over the Woman and the Children that should issue from them, but also over the whole Earth to subdue it, and over all the Crea∣tures on it, so that as long as Adam lived no man could claim or enjoy any thing but by Donation, Assignation, or Permission from him; I wonder how the Right of Nature can be imagined by Mr. Hobs, which he saith, pag. 64. is, a Liberty for each man to use his own Power as he will himself for Preser∣vation of his own Life: a Condition of War of every one against every one, a Right of every man to every thing, Page  166 even to one anothers Body, especially since himself af∣firms, pag. 178. that originally the Father of every man was also his Sovereign Lord, with Power over him of Life and Death.

II.

Mr. Hobs confesseth and believes it was never gene∣rally so, that there was such a jus naturae; and if not generally, then not at all, for one Exception bars all if he mark it well; whereas he imagines such a Right of Nature may be now practised in America, he confesseth a Government there of Fa∣milies, which Government how small or brutish so∣ever (as he calls it) is sufficient to destroy his jus na∣turale.

III.

I cannot understand how this Right of Nature can be conceived without imagining a Company of men at the very first to have been all Created together without any Dependency one of another, or as Mushroms (fungorum more) they all on a sudden were sprung out of the Earth without any Obligation one to another, as Mr. Hobs's words are in his Book De Ci∣ve, cap. 8. sect. 3. the Scripture teacheth us other∣wise, that all men came by Succession, and Genera∣tion from one man: We must not deny the Truth of the History of the Creation.

IV.

It is not to be thought that God would create man in a Condition worse than any Beasts, as if he made men to no other End by Nature but to destroy Page  167 one another; a Right for the Father to destroy or eat his Children, and for Children to do the like by their Parents, is worse than Canibals.* This horrid Condition of pure Nature when Mr. Hobs was charged with, his Refuge was to Answer, that no Son can be understood to be in this state of pure Nature: which is all one with deny∣ing his own Principle, for if men be not free-born, it is not possible for him to assign and prove any other time for them to claim a Right of Nature to Liber∣ty, if not at their Birth.

V.

But if it be allowed (which is yet most false) that a Company of men were at first without a com∣mon Power to keep them in Awe; I do not see why such a Condition must be called a State of War of all men against all men: Indeed if such a Multitude of men should be created as the Earth could not well nourish, there might be Cause for men to destroy one another rather than perish for want of Food; but God was no such Niggard in the Creation, and there being Plenty of Sustenance and Room for all men, there is no Cause or Use of War till men be hindered in the Preservation of Life, so that there is no absolute Necessity of War in the State of pure Nature; it is the Right of Nature for e∣very man to live in Peace, that so he may tend the Preservation of his Life, which whilest he is in actual War he cannot do. War of it self as it is War preserves no mans Life, it only helps us to preserve and obtain the Means to live: if e∣very man tend the Right of preserving Life, which Page  168 may be done in Peace, there is no Cause of War.

VI.

But admit the State of Nature were the State of War; let us see what Help Mr. Hobs hath for it. It is a Principle of his, that the Law of Nature is a Rule found out by Reason, (I do think it is given by God) pag. 64. forbidding a man to do that which is de∣structive to his Life, and to omit that by which he thinks it may be best preserved: If the Right of Nature be a Liberty for a man to do any thing he thinks fit to preserve his Life, then in the first Place Nature must teach him that Life is to be preserved, and so con∣sequently forbids to do that which may destroy or take away the means of Life, or to omit that by which it may be preserved: and thus the Right of Nature and the Law of Nature will be all one: for I think Mr. Hobs will not say the Right of Nature is a Liberty for man to destroy his own Life. The Law of Nature might better have been said to consist in a Command to preserve or not to omit the Means of preserving Life, than in a Prohibition to destroy, or to omit it.

VII.

Another Principle I meet with, pag. 65. If other men will not lay down their Right as well as he, then there is no Reason for any to devest himself of his: Hence it follows, that if all the Men in the World do not agree, no Commonwealth can be establish∣ed, it is a thing impossible for all the men in the World, every man with every man, to Covenant to lay down their Right. Nay, it is not possible to Page  169 be done in the smallest Kingdom, though all men should spend their whole Lives in nothing else but in running up and down to Covenant.

VIII.

Right may be laid aside but not transferr'd, for pag. 65. he that renounceth or passeth away his Right, giveth not to any other man a Right which he had not before, and reserves a Right in himself against all those with whom he doth not Covenant.

IX.

Pag. 87. The only way to erect a Common Power or a Commonwealth; is for men to confer all their Power and Strength upon one man, or one Assembly of men, that may reduce all their Wills by Plurality of Voices to one Will; which is to appoint one man or an Assembly of men to bear their Person, to submit their Wills to his Will: this is a real Ʋnity of them all in one Person, made by Covenant of every man with every man, as if every man should say to every man, I authorize, and give up my Right of Governing my self to this man, or this Assembly of men, on this Condition, that thou give up thy Right to him, and authorize all his Actions. This done, the Multitude so united in one Person, is called a Commonwealth.

To authorize and give up his Right of Govern∣ing himself, to confer all his Power and Strength, and to submit his Will to another, is to lay down his Right of resisting: for if Right of Nature be a Liberty to use Power for Preservation of Life, laying down of that Power must be a relinquishing of Pow∣er Page  170 to preserve or defend Life, otherwise a man re∣linquisheth nothing.

To reduce all the Wills of an Assembly by Plurali∣ty of Voices to one Will, is not a proper Speech, for it is not a Plurality but a Totality of Voices which makes an Assembly be of one Will, otherwise it is but the one Will of a major part of the Assembly, the Negative Voice of any one hinders the Being of the one Will of the Assembly, there is nothing more de∣structive to the true Nature of a lawful Assembly, than to allow a major part to prevail when the whole only hath Right. For a man to give up his Right to one that never Covenants to protect, is a great Fol∣ly, since it is neither in Consideration of some Right re∣ciprocally transferred to himself, nor can he hope for any other Good, by standing out of the way, that the other may enjoy his own Original Right, without hinderance from him by reason of so much Diminution of Impediments, pag. 66.

X.

The Liberty, saith Mr. Hobs, whereof there is so fre∣quent and honourable mention in the Histories and Philo∣sophy of the Ancient Greeks and Romans, and in the Wri∣tings & Discourse of those that from them have received all their Learning in the Politicks, is not the Liberty of particular men, but the Liberty of the Commonwealth. Whether a Commonwealth be Monarchical or Popular, the Freedom is still the same. Here I find Mr. Hobs is much mistaken: for the Liberty of the Athenians and Ro∣mans was a Liberty only to be found in Popular E∣states, and not in Monarchies. This is clear by Ari∣stotle, who calls a City a Community of Freemen, meaning every particular Citizen to be free. Not Page  171 that every particular man had a Liberty to resist his Governour, or do what he list, but a Liberty only for particular men, to Govern and to be governed by Turns, 〈 in non-Latin alphabet 〉and 〈 in non-Latin alphabet 〉 are Aristotle's words, this was a Li∣berty not to be found in Hereditary Monarchies; so Tacitus mentioning the several Governments of Rome, joyns the Consulship and Liberty to be brought in by Brutus, because by the annual Election of Consuls, particular Citizens came in their Course to govern and to be governed. This may be confirmed by the Complaint of our Authour, which followeth: It is an easie thing for men to be deceived by the specious name of Liberty: and for want of Judgment to distinguish, mistake that for their private Inheritance or Birthright, which is the Right of the Publick only: And when the same Errour is confirmed by the Authority of men in Re∣putation for their Writings on this Subject, it is no won∣der if it produce Sedition and Change of Government. In the Western Parts of the World, we are made to re∣ceive our Opinions concerning the Institution and Right of Commonwealths from Aristotle and Cicero, and other men, Greeks and Romans; that living under Popu∣lar Estates, derived those Rights not from the Princi∣ples of Nature, but transcribed them into their Books out of the Practice of their own Commonwealths, which were Popular. And because the Athenians were taught (to keep them from Desire of changing their Government) that they were Free-men, and all that lived under Mo∣narchy, Slaves: therefore Aristotle puts it down in his Politicks. In Democracy Liberty is to be supposed, for it's commonly held that no man is free in any other Government. So Cicero and other Writers grounded their Civil Doctrine on the Opinions of the Romans, who were taught to hate Monarchy, at first, by them Page  172 that having deposed their Sovereign, shared amongst them the Sovereignty of Rome. And by reading of these Greek and Latine Authors, Men from their Childhood have gotten a Habit (under a false shew of Liberty) of favouring Tumults, and of licentious controuling the Actions of their Sovereigns.

XI.

Pag. 102. Dominion Paternal not attained by Gene∣ration, but by Contract, which is the Childs Consent, either express, or by other sufficient Arguments declared. How a Child can express Consent, or by other sufficient Arguments declare it before it comes to the Age of Discretion I understand not, yet all men grant it is due before consent can be given, and I take it Mr. Hobs is of the same Mind, pag. 249. where he teacheth, that Abraham's Chil∣dren were bound to obey what Abraham should declare to them for God's Law: which they could not be but in Vertue of the Obedience they owed to their Parents; they owed, not they covenanted to give. Also where he saith, pag. 121. the Father and Master be∣ing before the Institution of Commonweals Absolute So∣vereigns in their own Families, how can it be said that either Children or Servants were in the State of jus naturae till the Institutions of Common∣weals? It is said by Mr. Hobs, in his Book De Cive, cap. 9. Section 7. the Mother originally hath the Government of her Children, and from her the Father derives his Right, because she brings forth and first nourisheth them. But we know that God at the Creation gave the Sovereignty to the man over the Woman, as being the Nobler and Principal Page  173 Agent in Generation. As to the Objection, that it is not known who is the Father to the Son, but by the discovery of the Mother, and that he is his Son whom the Mother will, and therefore he is the Mother's: The answer is, that it is not at the Will of the Mother to make whom she will the Father, for if the Mother be not in possession of a Husband, the Child is not reckoned to have any Father at all; but if she be in the possession of a Man, the Child, notwithstand∣ing whatsoever the Woman discovereth to the con∣trary, is still reputed to be his in whose possession she is. No Child naturally and infallibly knows who are his true Parents, yet he must obey those that in common reputation are so, otherwise the Commandment of Honour thy Father and thy Mo∣ther were in vain, and no Child bound to the obe∣dience of it.

XII.

If the Government of one man,* and the Go∣vernment of two men, make two several kinds of Government, why may not the Government of two, and the Government of three do the like, and make a third? and so every differing Number a differing kind of Common-wealth. If an Assembly of all (as Mr. Hobs saith) that will come together be a Democratie, and an Assembly of a part only an Aristo∣cratie, then if all that will come together be but a part only, a Democratie and Aristocratie are all one; and why must an Assembly of part be called an A∣ristocratie, and not a Merocratie?

It seems Mr. Hobs is of the mind that there is but one kind Government,* and that is Mo∣narchy, Page  174 for he defines a Commonwealth to be one Per∣son, and an Assembly of men, or real Ʋnity of them all in one and the same Person, the multitude so united he calls a Commonwealth: This his Moulding of a Multitude into one Person, is the generation of his great Leviathan, the King of the Children of Pride, pag. 167. Thus he concludes the Person of a Com∣monwealth to be a Monarch.

XIII.

I cannot but wonder Master Hobs should say, Pag. 112. The Consent of a Subject to Sovereign Power is contained in these words, I Authorise, and do take upon me all his Actions, in which there is no restriction at all of his own former natural Liberty. Surely here Master Hobs forgot himself; for before he makes the Re∣signation to go in these words also, I give up my Right of governing my self to this man: This is a restriction certainly of his own former natural Liberty, when he gives it away: and if a man allow his Sovereign to kill him, which Mr. Hobs seems to confess, how can he reserve a Right to defend himself? And if a man have a Power and Right to kill himself, he doth not Authorise and give up his Right to his Sovereign, if he do not obey him when he com∣mands him to kill himself.

XIV.

Mr. Hobs saith, pag. 112. No man is bound by the words themselves of his Submission to kill himself, or any other man, and consequently that the Obligation a man may sometimes have upon the Command of the So∣vereign Page  175 to execute any dangerous or dishonourable Office, dependeth not on the words of our Submission, but on the Intention, which is to be understood by the End thereof. When therefore our refusal to Obey frustrates the End for which the Sovereignty was Ordained, then there is no liberty to refuse: otherwise there is. If no man be bound by the words of his Subjection to kill any o∣ther man, then a Sovereign may be denied the benefit of War, and be rendred unable to defend his People, and so the End of Government frustra∣ted. If the Obligation upon the Commands of a Sovereign to execute a dangerous or dishonourable Office, dependeth not on the words of our Sub∣mission, but on the Intention, which is to be under∣stood by the End thereof; No man, by Mr. Hobs's Rules, is bound but by the words of his Submission; the Intention of the Command binds not, if the words do not: If the Intention should bind, it is necessary the Sovereign must discover it, and the People must dispute and judge it; which how well it may consist with the Rights of Sovereignty, Mr. Hobs may consider: Whereas Master Hobs saith, the Intention is to be understood by the End; I take it he means the End by Effect, for the End and the Intention are one and the same thing; and if he mean the Effect, the Obedience must go before, and not depend on the understanding of the Effect, which can never be, if the Obedience do not pre∣cede it: In fine, he resolves, refusal to obey may depend upon the judging of what frustrates the End of Sovereignty, and what not, of which he cannot mean any other Judge but the People.

Page  176

XV.

Mr. Hobs puts a case by way of Question. A great many men together have already resisted the So∣vereign Power unjustly, or committed some Capital Crime, for which every one of them expecteth death: whether have they not the liberty then to joyn toge∣ther, and assist and defend one another? Certainly they have; for they but defend their Lives, which the Guilty man may as well do as the Innocent: There was indeed Injustice in the first breach of their Duty, their bearing of Arms subsequent to it, though it be to maintain what they have done, is no new unjust Act; and if it be only to defend their Persons, it is not unjust at all. The only reason here alledged for the Bearing of Arms, is this; That there is no new unjust Act: as if the beginning only of a Rebellion were an unjust. Act, and the conti∣nuance of it none at all. No better Answer can be given to this case, than what the Author him∣self hath delivered in the beginning of the same Paragraph, in these words; To resist the Sword of the Commonwealth in defence of another man, Guilty or Innocent, no man hath Liberty: because such Li∣berty takes away from the Sovereign the Means of protecting us, and is therefore destructive of the very Essence of Government. Thus he first answers the question, and then afterwards makes it, and gives it a contrary Answer: other Passages I meet with to the like purpose. He saith, Page 66. A man cannot lay down the Right of Resisting them that as∣sault him by Force to take away his Life: The same may be said of Wounds, Chains, and Imprisonment.Page  177 Page 69. A Covenant to defend my self from Force by Force, is void. Pag. 68. Right of Defending Life and Means of living, can never be abandoned.

These last Doctrines are destructive to all Go∣vernment whatsoever, and even to the Leviathan it self: hereby any Rogue or Villain may murder his Sovereign, if the Sovereign but offer by force to whip or lay him in the Stocks, since Whipping may be said to be wounding, and putting in the Stocks an Imprisonment: so likewise every man's Goods being a Means of Living, if a man cannot abandon them, no Contract among men, be it ne∣ver so just, can be observed: thus we are at least in as miserable condition of War, as Mr. Hobs at first by Nature found us.

XVI.

The Kingdom of God signifies, (saith Master Hobs, page 216.) a Kingdom constituted by the Votes of the People of Israel in a peculiar manner, wherein they choose God for their King, by Covenant made with him, upon God's promising them Canaan. If we look upon Master Hobs's Text for this, it will be found that the People did not Constitute by Votes, and choose God for their King; But by the Appoint∣ment first of God himself, the Covenant was to be a God to them: they did not contract with God, that if he would give them Canaan, they would be his Subjects, and he should be their King; It was not in their power to choose whether God should be their God, yea, or nay: for it is confessed, He reigned naturally over all by his Might. If God Reigned naturally, he had a Kingdom, Page  178 and Sovereign Power over his Subjects, not ac∣quired by their own Consent. This Kingdom, said to be constituted by the Votes of the People of Israel, is but the Vote of Abraham only; his single Voice carried it; he was the Representative of the People. For at this Vote, it is confessed, that the Name of King is not given to God, nor of King∣dom to Abraham; yet the thing, if we will believe Master Hobs, is all one. If a Contract be the mu∣tual transferring of Right, I would know what Right a People can have to transfer to God by Contract. Had the People of Israel at Mount Sinai a Right not to obey God's Voice? If they had not such a Right, what had they to transfer?

The Covenant mentioned at Mount Sinai was but a Conditional Contract, and God but a Con∣ditional King; and though the People promised to obey God's word, yet it was more than they were able to perform, for they often disobeyed God's Voice, which being a breach of the Conditi∣on, the Covenant was void, and God not their King by Contract.

It is complained by God, They have rejected me that I should reign over them: but it is not said, ac∣cording to their Contract; for I do not find that the Desiring of a King was a breach of their Con∣tract of Covenant, or disobedience to the Voice of God: there is no such Law extant.

The People did not totally reject the Lord, but in part only, out of timorousness, when they saw Nahash King of the Children of Ammon come against them; they distrusted that God would not suddenly provide for their Deliverance, as if they had had always a King in readiness to go up pre∣sently Page  179 to fight for them: This Despair in them who had found so many miraculous deliverances under Gods Government, was that which offended the Lord so highly: they did not desire an Alterati∣on of Government, and to cast off God's Laws, but hoped for a certainer and speedier deliverance from danger in time of War. They did not peti∣tion that they might choose their King themselves, that had been a greater sin; and yet if they had, it had not been a total rejection of God's Reigning over them, as long as they desired not to depart from the Worship of God their King, and from the Obedience of his Laws. I see not that the Kingdom of God was cast off by the Election of Saul, since Saul was chosen by God himself, and governed according to God's Laws. The Govern∣ment from Abraham to Saul is no where called the Kingdom of God, nor is it said, that the Kingdom of God was cast off at the Election of Saul.

Mr. Hobs allows, that Moses alone had, next un∣der God, the Sovereignty over the Israelites, p. 252. but he doth not allow it to Joshua, but will have it descend to Eleazar the High-Priest, Aaron's Son, His Proof is, God expresly saith concerning Jo∣shua, He shall stand before Eleazar, who shall ask Counsel for him before the Lord, (after the judg∣ment of Ʋrim, is omitted by Mr. Hobs) at his word they shall go out, &c. therefore the Supreme Power of making Peace and War was in the Priest. Answ. The Work of the High-Priest was only Ministerial, not Magisterial; he had no power to Command in War, or to Judge in Peace; only when the Sovereign or Governour did go up to Page  180 War, he enquired of the Lord by the Ministry of the High Priest, and, as the Hebrews say, the Enqui∣rer with a soft voice, as one that prayeth for him∣self, asked: and forthwith the Holy Ghost came upon the Priest, and he beheld the Breast-plate, and saw therein by the Vision of Prophecy, Go up, or go not up, in the letters that shewed forth them∣selves upon the Breast-plate before his face: then the Priest answered him, Go up, or go not up. If this Answer gave the Priest Sovereignty, then neither King Saul nor King David had the Sovereignty, who both asked Counsel of the Lord by the Priest.

Page  181

OBSERVATIONS ON Mr. Milton Against SALMASIƲS.

I.

AMong the many Printed Books, and seve∣ral Discourses touching the Right of Kings, and the Liberty of the People, I can∣not find that as yet the first and chief Point is agreed upon, or indeed so much as once disputed. The word King and the word People are familiar, one would think every simple man could tell what they signified; but upon Examination it will be found, that the learnedst cannot agree of their meaning.

Ask Salmasius what a King is, and he will teach us, that a King is he who hath the Supreme Power of Page  182 the Kingdom, and is accountable to none but God, and may do what he please, and is free from the Laws. This Definition J. M. abominates as being the Definition of a Tyrant: And I should be of his Mind, if he would have vouchsafed us a better, or any other Definition at all, that would tell us how any King can have a Supreme Power, without being freed from humane Laws: To find fault with it, without pro∣ducing any other, is to leave us in the Dark: but though Mr. Milton brings us neither Definition nor Description of a King, yet we may pick out of several Passages of him, something like a Defini∣tion, if we lay them together. He teacheth us that Power was therefore given to a King by the People, that he might see by the Authority to him committed, that nothing be done against Law: and that he keep our Laws, and not impose upon us his own: Therefore there is no Regal Power but in the Courts of the Kingdom, and by them, pag. 155.

And again he affirmeth, the King cannot Imprison, Fine or punish any man, except he be first cited into some Court; where not the King, but the usual Judges give Sentence, pag. 168. and before we are told, not the King, but the Authority of Parliament doth set up and take away all Courts, pag. 167.

Lo here the Description of a King, He is one to whom the People give Power, to see that nothing be done against Law: and yet he saith there is no Regal Pow∣er but in the Courts of Justice and by them, where not the King, but the usual Judges give Sentence. This Description not only strips the King of all Power whatsoever, but puts him in a Condition below the meanest of his Subjects.

Page  183Thus much may shew, that all men are not agreed what a King is. Next, what the word People means is not agreed upon: ask Aristotle what the People is, and he will not allow any Power to be in any but in free Citizens. If we demand, who be free Ci∣tizens; That he cannot resolve us; for he confes∣seth that he that is a free Citizen in one City, is not so in another City. And he is of Opinion that no Artificer should be a free Citizen, or have Voice in a well ordered Commonwealth; he accounts a Democratie (which word signifies the Government of the People) to be a corrupted sort of Government; he thinks many men by Nature born to be Servants, and not fit to govern as any part of the People. Thus doth Aristotle curtail the People, and cannot give us any certain Rule to know who be the People. Come to our Modern Politicians, and ask them who the People is, though they talk big of the People, yet they take up, and are content with a few Representors (as they call them) of the whole People; a Point Aristotle was to seek in, neither are these Representors stood upon to be the whole People, but the major part of these Representors must be reckoned for the whole People; nay J.M. will not allow the major part of the Repre∣sentors to be the People, but the sounder and better part only of them; and in right down terms he tells us, pag. 126. to determine who is a Tyrant, he leaves to Magistrates, at least to the uprighter sort of them and of the People, pag. 7. though in number less by many▪ to judge as they find cause. If the sounder, the better, and the uprighter Part have the Power of the People, how shall we know, or who shall judge who they be?

Page  184

II.

One Text is urged by Mr. Milton, for the Peoples Power: Deut. 17.14. When thou art come into the Land which thy Lord thy God giveth thee, and shalt say, I will set a King over me, like as all the Nations about me. It is said, by the Tenure of Kings these words confirm us that the Right of Choosing, yea of Changing their own Government, is by the Grant of God himself in the People: But can the foretelling or fore∣warning of the Israelites of a wanton and wicked Desire of theirs, which God himself condemned, be made an Argument that God gave or granted them a Right to do such a wicked thing? or can the Nar∣ration and reproving of a Future Fact, be a Donati∣on and approving of a present Right, or the Per∣mission of a Sin be made a Commission for the do∣ing of it? The Author of his Book against Salmasius, falls so far from making God the Donor or Gran∣tor, that he cites him only for a Witness, Teste ipso Deo penes populos arbitrium semper fuisse, vel ea, quae placeret forma reipub. utendi, vel hanc in aliam mutan∣di; de Hebraeis hoc disertè dicit Deus: de reliquis non abnuit.

That here in this Text God himself being Witness, there was always a Power in the People, either to use what Form of Government they pleased, or of changing it into another: God saith this expresly of the Hebrews, and denies it not of others. Can any man find that God in this Text expresly saith, that there was always a Right in the People to use what Form of Government they please? The Text not warrant∣ing this Right of the People, the Foundation of the Page  185 Defence of the People is quite taken away; there being no other Grant or proof of it pretended.

2. Where it is said, that the Israelites desired a King, though then under another Form of Government; in the next line but one it is confessed, they had a King at the time when they desired a King, which was God himself, and his Vice-roy Samuel; and so saith God, They have not rejected thee; but they have rejected me, that I should not reign over them; yet in the next Verse God saith, As they have forsaken me, so do they also unto thee. Here is no Shew of any other Form of Government but Monarchy: God by the Mediation of Samuel reigned, who made his Sons Judges over Israel; when one man constitutes Judg∣es, we may call him a King; or if the having of Judges do alter the Government, then the Govern∣ment of every Kingdom is altered from Monarchy, where Judges are appointed by Kings: it is now reckoned one of the Duties of Kings to judge by their Judges only.

3. Where it is said, He shall not multiply to himself Horses, nor Wives, nor Riches, that he might understand that he had no Power over others, who could Decree nothing of himself, extra Legem; if it had said, contra legem Dei, it had been true, but if it meant extra legem humanam, it is false.

4. If there had been any Right given to the Peo∣ple, it seems it was to the Elders only; for it is said, it was the Elders of Israel gathered together, petitioned for a King; it is not said, it was all the People, nor that the People did choose the Elders, who were the Fathers and Heads of Families, autho∣rized by the Judges.

Page  1865. Where it is said, I will set a King over me like as all the Nations about me. To set a King, is, not to choose a King, but by some solemn publick Act of Coronation, or otherwise to acknowledge their Allegiance to the King chosen; It is said, thou shalt set him King whom the Lord thy God shall choose. The Elders did not desire to choose a King like o∣ther Nations, but they say, now make us a King to judge us like all the Nations.

III.

As for Davids Covenant with the Elders when he was anointed, it was not to observe any Laws or Conditions made by the People, for ought ap∣pears; but to keep Gods Laws and serve him, and to seek the Good of the People, as they were to pro∣tect him.

6. The Reubenites and Gadites promise their Obe∣dience, not according to their Laws or Conditions agreed upon, but in these words, All that thou com∣mandest us we will do, and whithersoever thou sendest us we will go, as we harkened to Moses in all things, so will we harken unto thee: only the Lord thy God be with thee as he was with Moses. Where is there any Condition of any humane Law expressed? Though the rebellious Tribes offered Conditions to Reho∣boam; where can we find, that for like Conditions not performed, all Israel deposed Samuel? I wonder Mr. Milton should say this, when within a few Lines after he professeth, that Samuel had governed them uprightly.

Page  187

IV.

Jus Regni is much stumbled at, and the Definiti∣on of a King which saith, His Power is supreme in the Kingdom, and he is accountable to none but to God, and that he may do what he please, and is not bound by Laws: it is said if this Definition be good, no man is or ever was, who may be said to be a Tyrant, p. 14. for when he hath violated all divine and humane Laws, nevertheless he is a King, and guiltless jure Regio. To this may be answered, That the Definition confes∣seth he is accountable to God, and therefore not guiltless if he violate Divine Laws: Humane Laws must not be shuffled in with Divine, they are not of the same Authority: if humane Laws bind a King, it is impossible for him to have Supreme Power amongst men. If any man can find us out such a kind of Government, wherein the supreme Power can be, without being freed from humane Laws, they should first teach us that: but if all sorts of po∣pular Government that can be invented, cannot be one Minute, without an Arbitrary Power, freed from all humane Laws: what reason can be given why a Royal Government should not have the like Freedom? if it be Tyranny for one man to govern arbitrarily, why should it not be far greater Ty∣ranny for a multitude of men to govern without being accountable or bound by Laws? It would be further enquired how it is possible for any Govern∣ment at all to be in the World without an arbitrary Power; it is not Power except it be arbitrary: a le∣gislative Power cannot be without being absolved from humane Laws, it cannot be shewed how a Page  188 King can have any Power at all but an arbitrary Power. We are taught, that Power was therefore gi∣ven to a King by the People, that he might see by the Authority to him committed, that nothing be done against Law; and that he keep our Laws, and not impose upon us his own: therefore there is no Royal Power, but in the Courts of the Kingdom, and by them, p. 155. And again it is said, the King cannot Imprison, Fine or Pu∣nish any man except he be first cited into some Court, where not the King but the usual Judges give Sentence, pag. 168. and before, we are told, not the King, but the Authority of Parliament doth set up and take away all Courts, pag. 167.

Lo here we have Mr. Milton's perfect Definition of a King: He is one to whom the People gave Power to see that nothing be done against Law, and that he keep our Laws, and not impose his own. Whereas all other men have the Faculty of Seeing by Nature, the King only hath it by the Gift of the People, other Power he hath none; he may see the Judges keep the Laws if they will; he cannot compel them, for he may not Imprison, Fine, nor punish any man; the Courts of Justice may, and they are set up and put down by the Parliament: yet in this very Definition of a King, we may spy an ar∣bitrary Power in the King; for he may wink if he will: and no other Power doth this Description of a King give, but only a Power to see: whereas it is said Aristotle doth mention an absolute Kingdom, for no other Cause, but to shew how absurd, unjust and most tyrannical it is. There is no such thing said by Aristotle, but the contrary, where he saith, that a King according to Law makes no sort of Government; and after he had reckoned up five sorts of Kings, he Page  189 concludes, that there were in a manner but two sorts, the Lacedemonian King, and the Absolute King; whereof the first was but as General in an Army, and therefore no King at all, and then fixes and rests upon the Absolute King, who ruleth according to his own Will.

V.

If it be demanded what is meant by the word People? 1. Sometimes it is Populus universus, and then every Child must have his Consent asked, which is impossible. 2. Sometimes it is pars major, and sometimes it is pars potior & sanior. How the major part, where all are alike free, can bind the mi∣nor part, is not yet proved.

But it seems the major part will not carry it, nor be allowed, except they be the better part, and the sounder part. We are told, the sounder part implored the help of the Army, when it saw it self and the Com∣monwealth betrayed; and that the Souldiers judged bet∣ter than the Great Council, and by Arms saved the Com∣monwealth, which the Great Council had almost damned by their Votes, page 7.

Here we see what the People is; to wit, the sound∣er part; of which the Army is the Judge: thus, upon the matter, the Souldiers are the People: which be∣ing so, we may discern where the Liberty of the Peo∣ple lieth, which we are taught to consist all for the most part in the power of the Peoples choosing what Form of Government they please, p. 61. A miserable Liber∣ty, which is only to choose to whom we will give our Liberty, which we may not keep. See more concerning the People, in a Book entituled, The A∣narchy, page 8, 9, 10, 11, 12, 13, 14.

Page  190

VI.

We are taught, that a Father and a King are things most diverse. The Father begets us, but not the King; but we create the King: Nature gives a Father to the People, the People gives themselves a King: If the Fa∣ther kill his Son he loseth his life, why should not the King also? page 34.

Ans. Father and King are not so diverse; it is con∣fessed, that at first they were all one, for there is con∣fessed Paternum imperium & haereditarium, pag. 141. and this Fatherly Empire, as it was of it self heredi∣tary, so it was alienable by Patent, and seizable by an Usurper, as other goods are: and thus every King that now is, hath a Paternal Empire, either by In∣heritance, or by Translation, or Usurpation; so a Father and a King may be all one.

A Father may dye for the Murther of his Son, where there is a Superiour Father to them both, or the Right of such a Supreme Father; but where there are only Father and Sons, no Sons can questi∣on the Father for the death of their Brother: the reason why a King cannot be punished, is not be∣cause he is excepted from Punishment, or doth not deserve it, but because there is no Superiour to judge him, but God only, to whom he is reserved.

VII.

It is said thus, He that takes away from the People the power of Choosing for themselves what Form of Go∣vernment they please, he doth take away that wherein all Civil Liberty almost consists, p. 65. If almost all Liber∣ty Page  191 be in Choosing of the Kind of Government, the People have but a poor Bargain of it, who cannot ex∣ercise their Liberty, but in Chopping and Changing their Government, and have liberty only to give away their Liberty, than which there is no greater mischief, as being the cause of endless Sedition.

VIII.

If there be any Statute in our Law, by which thou canst find that Tyrannical Power is given to a King, that Statute being contrary to Gods Will, to Nature and Rea∣son, understand that by that general and primary Law of ours, that Statute is to be repealed, & not of force with us, p. 153. Here, if any man may be judge, what Law is contrary to Gods Will, or to Nature, or to Rea∣son, it will soon bring in Confusion: Most men that offend, if they be to be punished or fined, will think that Statute that gives all Fines and Forfeitures to a King, to be a Tyrannical Law; thus most Statutes would be judged void, and all our Fore-fathers ta∣ken for Fools or Madmen, to make all our Laws to give all Penalties to the King.

IX.

The sin of the Children of Israel did lye, not in Desiring a King, but in desiring such a King like as the Nations round about had; they distrusted God Almighty, that governed them by the Monarchical Power of Samuel, in the time of oppression, when God provided a Judge for them, but they desired a perpetual and hereditary King, that they might never want: in Desiring a King they could not sin, Page  192 for it was but Desiring what they enjoyed by God's special Providence.

X.

Men are perswaded, that in making of a Cove∣nant, something is to be performed on both parts by mutual Stipulation; which is not always true: for we find God made a Covenant with Noah and his Seed, with all the Fowl and the Cattel, not to destroy the Earth any more by a flood. This Covenant was to be kept on Gods part, neither Noah, nor the Fowl, nor the Cattel were to perform any thing by this Cove∣nant. On the other side, Gen. 17.9, 10. God co∣venants with Abraham, saying, Thou shalt keep my Covenant,—every male-child among you shall be cir∣cumcised. Here it is called Gods Covenant, though it be to be performed only by Abraham; so a Cove∣nant may be called the Kings Covenant, because it is made to him, and yet to be performed only by the People. So also, 2 King. 11.17. Jehojada made a Covenant between the Lord, and the King, and the People, that they should be the Lords People. Between the King also and the People, which might well be, that the People should be the Kings Servants: and not for the King's covenanting to keep any Humane Laws, for it is not likely the King should either covenant, or take any Oath to the People when he was but se∣ven years of age, and that never any King of Israel took a Coronation Oath that can be shewed: when Jehojada shewed the King to the Rulers in the House of the Lord, he took an Oath of the People: he did not Article with them, but saith the next Verse, Commanded them to keep a Watch of the Kings House, and that they should compass the King round about, eve∣ry Page  193 man with his weapon in his hand, and he that cometh within the Ranges, let him be slain.

XI.

To the Text, Where the word of a King is, there is Power, and who may say unto him, What dost thou? J.M. gives this Answer: It is apparent enough, that the Preacher in this place gives Precepts to every private man, not to the great Sanhedrin, nor to the Senate— shall not the Nobles, shall not all the other Magistrates, shall not the whole People dare to mutter, so oft as the King pleaseth to dote? We must here note, that the great Council, and all other Magistrates or Nobles, or the whole People, compared to the King, are all but private men, if they derive their Power from him: they are Magistrates under him, and out of his Presence, for when he is in place, they are but so many private men. J. M. asks, Who swears to a King, unless the King on the other side be sworn to keep Gods Laws, and the Laws of the Countrey? We find that the Rulers of Israel took an Oath at the Coro∣nation of Jehoash: but we find no Oath taken by that King, no not so much as to Gods Laws, much less to the Laws of the Countrey.

XII.

A Tyrant is he, who regarding neither Law nor the Common Good, reigns only for himself and his Faction; p. 19. In his Defence he expresseth himself thus, He is a Tyrant who looks after only his own, and not his Peoples profit. Eth. l. 10. p. 189.

Page  1941. If it be Tyranny not to regard the Law, then all Courts of Equity, and Pardons for any Offences must be taken away: there are far more Suits for re∣lief against the Laws, than there be for the observa∣tion of the Laws: there can be no such Tyranny in the World as the Law, if there were no Equity to abate the rigour of it. Summum Jus is Summa In∣juria; if the Penalties and Forfeitures of all Laws should still be exacted by all Kings, it would be found, that the greatest Tyranny would be, for a King to govern according to Law; the Fines, Penalties, and Forfeitures of all Laws are due to the Supreme Power only, and were they duly paid, they would far exceed the Taxes in all places. It is the chief happiness of a Kingdom, and their chief Liberty, not to be governed by the Laws Only.

2. Not to regard the Common Good, but to reign only for himself, is the supposition of an impossibility in the judgment of Aristotle, who teacheth us, that the despotical Power cannot be preserved, except the Servant, or he in subjection, be also preserved. The truth of this strongly proves, That it is in Nature impossible to have a Form of Government that can be for the de∣struction of a People, as Tyranny is supposed; if we will allow People to be governed, we must grant, they must in the first place be preserved, or else they cannot be governed.

Kings have been, and may be vitious men, and the Government of one, not so good as the Govern∣ment of another; yet it doth not follow, that the Form of Government is, or can be in its own nature ill, because the Governour is so: it is Anarchy, or want of Government, that can totally destroy a Na∣tion. We cannot find any such Government as Ty∣ranny Page  195 mentioned or named in Scripture, or any word in the Hebrew Tongue to express it. After such time as the Cities of Greece practised to shake off Monarchy, then, and not till then, (which was after Homer's time) the name of Tyrant was taken up for a word of Disgrace, for such men as by craft or Force wrested the Power of a City from a Multi∣tude to one man only; and not for the exercising, but for the ill-obtaining of the Government: but now every man that is but thought to govern ill, or to be an ill man, is presently termed a Tyrant, and so judged by his Subjects. Few remember the Prohibition, Exod. 22.28. Thou shalt not revile the Gods, nor curse the Ruler of thy People: and fewer un∣derstand the reason of it. Though we may not one judge another, yet we may speak evil or revile one another, in that which hath been lawfully judged, and upon a Tryal wherein they have been heard and condemned: this is not to judge, but only to re∣late the judgment of the Ruler. To speak evil, or to revile a Supreme Judge, cannot be without judging him who hath no Superiour on Earth to judge him, and in that regard must always be pre∣sumed innocent, though never so ill, if he cannot lawfully be heard.

J.M. that will have it Tyranny in a King not to regard the Laws, doth himself give as little Regard to them as any man; where he reckons, that Con∣testing for Priviledges, Customs, Forms, and that old en∣tanglement of Iniquity, their gibrish Laws, are the Badges of ancient Slavery. Tenure, p. 3. a Disputing Presidents, Forms and Circumstances, page 5.

J.M. is also of opinion, That, If at any time our Fore-fathers, out of baseness, have lost any thing of their Page  196 Right, that ought not hurt us; they might if they would promise Slavery for themselves, for us certainly they could not, who have always the same Right to free our selves, that they had to give themselves to any man in Slavery. This Doctrine well practised, layeth all open to constant Anarchy.

Lastly, If any desire to know what the liberty of the People is, which J. M. pleads for, he resolves us, saying, That he that takes away from the People the Right of Choosing what Form of Government they please, takes away truly that in which all Liberty doth almost consist. It is well said by J. M. that all liberty doth almost consist in Choosing their Form of Go∣vernment, for there is another liberty exercised by the People, which he mentions not, which is the liberty of the Peoples Choosing their Religion; e∣very man may be of any Religion, or of no Reli∣gion; Greece and Rome have been as famous for Polytheism, or multitudes of gods, as of Gover∣nours; and imagining Aristocratie and Democratie in Heaven, as on Earth.

Page  197

OBSERVATIONS UPON H. Grotius DE JƲRE BELLI & PACIS.

IN most Questions of Weight and Difficulty con∣cerning the Right of War, or Peace, or Su∣preme Power, Grotius hath Recourse to the Law of Nature or of Nations, or to the Primi∣tive Will of those men who first joyned in Society. It is necessary therefore a little to lay open the Variety or Contrariety in the Civil and Canon Law, and in Grotius himself, about the Law of Nature and Nations, not with a Purpose to raise any Contention about Words or Phrases, but with a Desire to reconcile or expound the Sense of dif∣ferent Terms.

Page  198Civilians, Canonists, Politicians and Divines, are not a little perplexed in distinguishing between the Law of Nature, and the Law of Nations; about Jus Na∣turae, and Jus Gentium, there is much Dispute by such as handle the Original of Government, and of Property and Community.

The Civil Law in one Text allows a threefold Division of Law, into Jus Naturae, Jus Gentium, and Jus Civile. But in another Text of the same Law, we find only a twofold Division, into Jus Civile, and Jus Gentium. This latter Division the Law takes from Gaius, the former from Ʋl∣pian, who will have Jus Naturale to be that which Nature hath taught all Creatures, quod Natura om∣nia animalia docuit, but for this he is confuted by Grotius, Salmasius, and others, who restrain the Law of Nature only to men using Reason; which makes it all one with the Law of Nations; to which the Canon Law consents, and saith, That Jus Naturale est commune omnium Nationum: That which Natural Reason appoints all men to use, is the Law of Nations, saith Theophilus in the Text of the Civil Law: and in the second Book of the Instit. cap. 1. Jus Naturae is confounded with Jus Gentium.

As the Civilians sometimes confound, and some∣times separate the Law of Nature and the Law of Nations, so other-whiles they make them also con∣trary one to the other. By the Law of Nature all men are born free; Jure naturali omnes liberi nascuntur. But Servitude is by the Law of Nations: Jure Gentium Servitus invasit, saith Ʋlpian.

Page  199And the Civil Law not only makes the Law of Nature and of Nations contrary, but also will have the Law of Nations contrary to it self. War, saith the Law, was brought in by the Law of Nati∣ons, Ex jure gentium introducta bella, and yet the Law of Nations saith, Since Nature hath made us all of one Kindred, it follows it is not lawful for one man to lye in wait for another. Cùm inter nos cog∣nitionem quandam natura constituit, consequens est hominem homini insidiari nefas esse, saith Floren∣tinus.

Again, the Civil Law teacheth, that from the Law of Nature proceeds the Conjunction of man and woman, the Procreation and Education of Children. But as for Religion to God, and Obedience to Parents it makes it to be by the Law of Nations.

To touch now the Canon Law, we may find in one place that men are governed either by the Law of Nature, or by Customs. Homines reguntur Natu∣rali jure, aut moribus. The Law of Nations they call a Divine Law, the Customs a humane Law; Leges aut divinae sunt aut humanae; divinae naturâ, hu∣manae moribus constant. But in the next place the Canon Law makes Jus to be either Naturale, aut Civile, aut Gentium. Though this Division agree in Terms with that of Ʋlpian in the Civil Law, yet in the Explication of the Terms there is Diversity; for what one Law makes to belong to the Law of Nature, the other refers to the Law of Na∣tions, as may easily appear to him that will take the Pains to compare the Civil and Canon Law in these Points.

Page  200A principal Ground of these Diversities and Con∣trarieties of Divisions, was an Error which the Heathens taught, that all things at first were common, and that all men were equal. This mistake was not so heinous in those Ethnick Authors of the Civil Laws, who wanting the Guide of the History of Moses, were fain to follow Poets and Fables for their Leaders. But for Christians, who have read the Scriptures, to dream either of a Community of all things, or an Equality of all Persons, is a Fault scarce pardonable.

To salve these apparent Contrarieties of Com∣munity and Property, or Equality and Subjection: the Law of Jus Gentium was first invented; when that could not satisfie, to mend the matter, this Jus Gentium, was divided into a Natural Law of Nations, and an Humane Law of Nations; and the Law of Nature into a Primary and a Secondary Law of Nature; Distinctions which make a great sound, but edifie not at all if they come under Ex∣amination.

If there hath been a time when all things were common, and all men equal, and that it be otherwise now; we must needs conclude that the Law by which all things were common, and men equal, was contrary to the Law by which now things are pro∣per, and men subject.

If we will allow Adam to have been Lord of the World and of his Children, there will need no such Distinctions of the Law of Nature and of Nations: For the Truth will be, that whatsoever the Heathens comprehended under these two Laws, is comprised in the Moral Law.

Page  201That the Law of Nature is one and the same with the Moral, may appear by a Definition gi∣ven by Grotius. The Law of Nature (saith he) is the Dictate of Reason, shewing that in every Action by the agreeing or disagreeing of it with natural Reason, there is a moral Honesty or Dishonesty, and consequent∣ly that such an Action is commanded or forbidden by God the Author of Nature. I cannot tell how Gro∣tius would otherwise have defined the Moral Law. And the Canon Law grants as much; teaching that the Law of Nature is contained in the Law and the Gospel: Whatsoever ye will that men do, &c. Mat. 7.

The Term of Jus Naturae is not originally to be found in Scripture, for though T. Aquinas takes upon him to prove out of the 2. to the Romans, that there is a Jus Naturae, yet St. Paul doth not use those express Terms; his words are, The Gen∣tiles which have not the Law, do by Nature the things contained in the Law, these having not the Law are a Law unto themselves: He doth not say, Nature is a Law unto them, but they are a Law unto them∣selves. As for that which they call the Law of Nations, it is not a Law distinct, much less op∣posite to the Law of Nature, but it is a small Branch or Parcel of that great Law; for it is no∣thing but the Law of Nature, or the moral Law between Nations. The same Commandment that forbids one Private man to rob another, or one Corporation to hurt another Corporation, obliges also one King not to rob another King, and one Commonwealth not to spoil another: the same Law that enjoyns Charity to all men, even to Ene∣mies, Page  202 binds Princes and States to shew Charity to one another, as well as private Persons.

And as the Common, or Civil Laws of each Kingdom which are made against Treason, Theft, Murder, Adultery, or the like, are all and every one of them grounded upon some particular Com∣mandment of the moral Law; so all the Laws of Nations must be subordinate and reducible to the moral Law.

The Law of Nature, or the moral Law is like the main Ocean, which though it be one entire Body, yet several Parts of it have distinct Names, according to the diversity of the Coasts on which they border. So it comes to pass that the Law of Nations, which is but a part of the Law of Nature, may be sub-divided almost in infinitum, according to the Variety of the Persons, or Matters about which it is conversant.

The Law of Nature or the divine Law is general, and doth only comprehend some Principles of Morality notoriously known of themselves, or at the most is extended to those things which by necessary and evident Inference are consequent to those Principles. Besides these, many other things are necessary to the well governing of a Common∣wealth: and therefore it was necessary that by Humane Reason something more in particular should be determined concerning those things which could not be defined by Natural Reason alone; hence it is that Humane Laws be necessary, as Comments upon the Text of the Moral Law: and of this Judgment is Aquinas, who teacheth, that necessitas legis humanae manat ex eo, quod Lex Page  203 naturalis, vel Divina, generalis est, & solum comple∣ctitur quaedam principia morum per se nota, & ad summum extenditur ad ea quae necessaria & evidenti elatione ex illis principiis consequuntur: praeter illa ve∣rò multa alia sunt necessaria in republica ad ejus re∣ctam Gubernationem: & ideo necessarium fuit ut per humanam rationem aliqua magis in particulari deter∣minarentur circa ea quae per solam rationem naturalem definiri non possunt. Ludo. Molin. de Just. Thus much may suffice to shew the Distractions in and between the Civil and Common Laws about the Law of Nature and Nations. In the next place we are to consider how Grotius distinguisheth these Laws.

To maintain the Community of things to be Na∣tural, Grotius hath framed new Divisions of the Law of Nature. First, in his Preface to his Books De Jure Belli & Pacis, he produceth a Definition of the Law of Nature, in such doubtful, obscure and reserved Terms, as if he were diffident of his Undertaking: Next in his first Book and first Chapter he gives us another Distribution, which differs from his Do∣ctrine in his Preface.

In his Preface his Principle is, that the Appetite of Society, that is to say, of Community, is an Acti∣on proper to man. Here he presently corrects him∣self with an Exception, that some other Creatures are found to desire Society; and withal he answers the Objections thus, that this Desire of Society in brute Beasts, comes from some external Princi∣ple. What he means by Principium intelligens ex∣trinsecum, I understand not, nor doth he explain, nor is it material, nor is the Argument he useth Page  204 to any purpose; for, admitting all he saith to be true, yet his Principle fails; for the Question is not, from what Principle this Desire of Society proceeds in Beasts, but whether there be such a Desire or no. Besides, here he takes the Appe∣tite of Society and Community to be all one, whereas many live in Society, which live not in Community.

Next he teacheth, that the keeping of Society (custodia Societatis) which in a rude manner (saith he) we have now expressed, is the fountain of that Law which is properly so called. I conceive by the Law properly so called, he intends the Law of Nature, though he express not so much: And to this appetite of Sociable Community he refers Alie∣ni Abstinentia; but herein it may be he forgets himself, for where there is Community there is neither meum nor tuum, nor yet alienum; and if there be no alienum, there can be no alieni absti∣nentia. To the same purpose he saith, that by the Law of Nature men must stand to bargains, Juris naturae sit stare pactis. But if all things were common by Nature, how could there be any bargain?

Again, Grotius tells us, that from this significati∣on of the Law there hath flowed another larger, which consists (saith he) in Discerning what de∣lights us or hurts us, and in judging how things should be wisely distributed to each one. This latter he calls the looser Law of Nature; the former Jus Sociale, the Law of Nature, strictly, or proper∣ly taken. And these two Laws of Nature should have place (saith he) though men should deny there were a Page  205 a God. But to them that believe there is a God, there is another Original of Law, beside the Natural, coming from the free Will of God, to the which our own Ʋnder∣standing tells us we must be subject.

Thus have I gathered the Substance of what is most material concerning the Law of Nature, in his Preface.

If we turn to the Book it self, we have a division of the Law into Jus

  • Naturale.
  • Voluntarium
    • Divinum.
    • Humanum.
      • Civile.
      • Latiùs patens, Seu Jus Gentium.
      • Arctiùs patens, Seu Paternum, Seu Herile.

In the Definition of Jus Naturale he omits those Subtleties of Jus Naturae propriè dictum, and quod laxius ita dicitur, which we find in his Preface, and gives such a plain Definition, as may fitly agree to the Moral Law. By this it seems the Law of Nature and the Moral Law are one and the same.

Page  206Whereas he affirmeth, That the Actions about which the Law of Nature is conversant, are lawful or unlawful of themselves, and therefore are necessarily commanded or forbidden by God: by which mark this Law of Nature doth not only differ from humane Law, but from the Divine voluntary Law, which doth not command or forbid those things, which of themselves, and by their own nature are lawful or unlawful, but makes them unlawful by forbidding them, and due by commanding them: In this he seems to make the Law of Nature to differ from Gods Voluntary Law; whereas, in God, Necessary and Voluntary are all one. Salmasius de Ʋsuris, in the twentieth Chapter, condemns this Opinion of Grotius; though he name him not, yet he means him, if I mistake not.

In the next place, I observe his saying, That some things are by the Law of Nature, not pro∣priè, but reductivè; and that the Law of Nature deals not only with those things which are beside the Will of Man, but also with many things which fol∣low the act of Man's Will: so Dominion, such as is now in Ʋse, mans Will brought in; but now that it is brought in, it is against the Law of Nature, to take that from thee against thy will, which is in thy Dominion.

Yet for all this Grotius maintains, That the Law of Nature is so immutable, that it cannot be changed by God himself. He means to make it good with a Distinction: Some things (saith he) are by the Law of Nature, but not simply, but according to the certain state of things; so the common use of things was natural as long as Dominion was not brought in; and Right for every man to take his own Page  207 by Force, before Laws were made. Here if Grotius would have spoken plain, instead of but not sim∣ply, but according to the certain State of Things, he would have said, but not immutably, but for a certain Time. And then this Distinction would have run thus; Some things are by the Law of Nature, but not immutably, but for a certain time. This must needs be the naked Sense of his Distinction, as appears by his Explication in the Words following, where he saith, That the com∣mon Ʋse of Things was natural so long as Dominion was not brought in: Dominion, he saith, was brought in by the will of man, whom by this Do∣ctrine Grotius makes to be able to change that Law which God himself cannot change, as he saith. He gives a double ability to man; first, to make that no Law of Nature, which God made to be the Law of Nature: And next, to make that a Law of Na∣ture which God made not; for now that Dominion is brought in, he maintains, it is against the Law of Nature to take that which is in another man's dominion.

Besides, I find no Coherence in these Words, By the Law of Nature it was right for every man to take his own by force, before Laws made, since by the Law of Nature no man had any thing of his own; and until Laws were made, there was no Propriety, according to his Do∣ctrine.

Jus Humanum voluntarium latius patens, he makes to be the Law of Nations, which (saith he) by the Will of All, or Many Nations, hath received a power to bind, he adds, of Many, because Page  208 there is, as he grants, scarce any Law to be found common to all Nations, besides the Law of Nature; which also is wont to be called the Law of Nations, be∣ing common to all Nations. Nay, as he confesseth often, That is the Law in one part of the World, which in another part of the World is not the Law of Nations.

By these Sentences, it seems Grotius can scarce tell what to make to be the Law of Nations, or where to find it.

Whereas he makes the Law of Nations to have a binding Power from the Will of men, it must be remembred, That it is not sufficient for men to have a Will to bind, but it is necessary also to have a Power to bind: Though several Nations have one and the same Law.

For instance: Let it be granted that Theft is punished by Death in many Countries, yet this doth not make it to be a Law of Nations, because each Nation hath it but as a Natural, or Civil Law of their own Country; and though it have a binding Power from the Will of many Nations, yet because each Nation hath but a Will and Power to bind themselves, and may without pre∣judice, consent, or consulting of any Neighbour-Nation, alter this Law, if they find Cause, it cannot properly be called the Law of Nations. That which is the foundation of the Law of Nations, is, to have it concern such things as belong to the mutual Society of Nations among themselves,* as Grotius confesseth; and not of such things as have no further relation than to the particular Benefit of each Kingdom: For, as Page  209 private men must neglect their own Profit for the Good of their Country; so particular Nations must sometimes remit part of their Benefit, for the Good of many Nations.

True it is, that in particular Kingdoms and Commonwealths there be Civil and National Laws, and also Customs that obtain the Force of Laws: But yet such Laws are ordained by some supreme Power, and the Customs are examined, judged, and allowed by the same supreme Power. Where there is no Supreme Power that extends over all or many Nations, but only God himself, there can be no Laws made to bind Nations, but such as are made by God himself: we cannot find that God made any Laws to bind Nations, but only the Mo∣ral Law; as for the Judicial Law, though it were ordained by God, yet it was not the Law of Na∣tions, but of one Nation only, and fitted to that Commonwealth.

If any think that the Customs wherein many Na∣tions do consent, may be called the Law of Na∣tions, as well as the Customs of any one Nation may be esteemed for National Laws: They are to consider, That it is not the being of a Custom that makes it lawful, for then all Customs, even evil Customs, would be lawful; but it is the Appro∣bation of the supreme Power that gives a legality to the Custom: where there is no Supreme Power over many Nations, their Customs cannot be made legal.

The Doctrine of Grotius is, That God immediately after the Creation did bestow Page  210 upon Mankind in general a Right over things of inferiour Nature — From whence it came to pass, that presently every man might snatch what he would for his own Ʋse, and spend what he could, and such an Ʋni∣versal Right was then instead of Proper∣ty; for what every one so snatched, ano∣ther could not take from him but by In∣jury.

How repugnant this Assertion of Grotius is to the Truth of Holy Scripture, Mr. Selden teacheth us in his Mare Clausum,* say∣ing, That Adam by Donation from God, Gen. 1.28. was made the general Lord of all things, not without such a private Dominion to himself, as (without his Grant) did exclude his Children: and by Donation and Assignation, or some kind of Cession (be∣fore he was dead, or left any Heir to succeed him) his Children had their distinct Territories by Right of pri∣vate Dominion: Abel had his Flocks and Pastures for them; Cain had his Fields for Corn, and the Land of Nod where he built himself a City.

This Determination of Mr. Selden's being con∣sonant to the History of the Bible, and to natural Reason, doth contradict the Doctrine of Grotius: I cannot conceive why Mr. Selden should afterwards affirm, That neither the Law of Nature, nor the Di∣vine Law, do command or forbid either Communion of all things or private Dominion, but permitteth both.

Page  211As for the general Community between Noah and his Sons, which Mr. Selden will have to be granted to them, Gen. 9.2. the Text doth not warrant it; for although the Sons are there men∣tioned with Noah in the Blessing, yet it may best be understood with a Subordination or a Benedi∣ction in Succession, the Blessing might truly be fulfilled, if the Sons either under, or after their Father enjoyed a Private Dominion: it is not pro∣bable that the private Dominion which God gave to Adam, and by his Donation, Assignation, or Cession to his Children was abrogated, and a Community of all things instituted between Noah and his Sons, at the time of the Flood: Noah was left the sole Heir of the World, why should it be thought that God would dis-inherit him of his Birth-right, and make him of all the men in the World, the only Tenant in Common with his Children? If the Blessing given to Adam, Gen. 1.28. be compared to that given to Noah and his Sons, Gen. 9.2. there will be found a considera∣ble Difference between those two Texts: In the Benediction of Adam, we find expressed a subduing of the Earth, and a Dominion over the Creatures, nei∣ther of which are expressed in the Blessing of Noah, nor the Earth there once named, it is only said, The fear of you shall be upon the creatures, and into your hands are they delivered; then immediately it follows, Every moving thing shall be meat for you, as the green herb. The first Blessing gave Adam Dominion over the Earth and all Creatures, the latter allows Noah liberty to use the living Crea∣tures for food: here is no alteration or dimi∣nishing Page  212 of his Title to a Propriety of all things, but an Enlargement only of his Commons.

But whether, with Grotius, Community came in at the Creation, or, with Mr. Selden, at the Flood, they both agree it did not long continue; Sed veri non est simile hujusmodi communionem diu obtinuisse, is the confession of Mr. Selden. It seems strange that Grotius should maintain, that Community of all things should be by the Law of Nature, of which God is the Author; and yet such Community should not be able to continue: Doth it not dero∣gate from the Providence of God Almighty, to or∣dain a Community which could not continue? Or doth it make the Act of our Fore-fathers, in abroga∣ting the natural Law of Community, by introdu∣cing that of Propriety, to be a sin of a high pre∣sumption?

The prime Duties of the Second Table are con∣versant about the Right of Propriety: but if Pro∣priety be brought in by a Humane Law (as Grotius teacheth) then the Moral Law depends upon the Will of man. There could be no Law against Adultery or Theft, if Women and all things were common.

Mr. Selden saith, That the Law of Nature, or of God, nec vetuit, nec jubebat, sed permisit utrumque, tam nempe rerum communionem quàm privatum Dominium. And yet for Propriety (which he terms primaeva re∣rum Dominia) he teacheth, That Adam received it from God, à Numine acceperat: And for Community, he saith, We meet with evident footsteps of the Commu∣nity of things in that donation of God, by which Noah and his three Sons are made Domini pro indiviso rerum Page  213 omnium. Thus he makes the private Dominion of Adam, as well as the common Dominion of Noah and his Sons, to be both by the Will of God. Nor doth he shew how Noah, or his Sons, or their Poste∣rity, had any Authority to alter the Law of Com∣munity which was given them by God.

In distributing Territories (Mr. Selden saith) the con∣sent, as it were, of Mankind (passing their promise, which should also bind their Posterity) did intervene, so that men departed from their common Right of Commu∣nion of those things which were so distributed to particu∣lar Lords or Masters. This Distribution by Con∣sent of Mankind, we must take upon Credit; for there is not the least proof offered for it out of An∣tiquity.

How the Consent of Mankind could bind Poste∣rity when all things were common, is a Point not so evident: where Children take nothing by Gift or by Descent from their Parents, but have an equal and common Interest with them, there is no reason in such cases, that the Acts of the Fathers should bind the Sons.

I find no cause why Mr. Selden should call Com∣munity a pristine Right; since he makes it but to begin in Noah, and to end in Noah's Children, or Grand children at the most; for he confesseth the Earth, à Noachidis seculis aliquot post diluvium esse divisam.

That ancient Tradition, which by Mr. Sel∣den's acknowledgment hath obtained Reputa∣tion every where, seems most reasonable, in that he tells us, That Noah himself, as Lord of all, was Author of the Distribution of the Page  214 World, and of private Dominion, and that by the ap∣pointment of an Oracle from God, he did confirm this Distribution by his last Will and Testament, which at his Death he left in the hands of his eldest Son Sem, and also warned all his Sons, that none of them should invade any of their Brothers Dominions, or injure one another, because from thence Discord and Civil War would ne∣cessarily follow.

Many Conclusions in Grotius his Book de Jure Belli & Pacis, are built upon the foundation of these two Principles.

  • 1. The first is, That Communis rerum usus natu∣ralis fuit.
  • 2. The second is, That Dominium quale nunc in usu est, voluntas humana introduxit.

Upon these two Propositions of natural Com∣munity and voluntary Propriety, depend divers dangerous and seditious Conclusions, which are dispersed in several places. In the fourth Cha∣pter of the first Book, the Title of which Chapter is, Of the War of Subjects against Superiours; Grotius handleth the Question, Whether the Law of not resisting Superiours, do bind us in most grievous and most certain danger? And his Determination is, That this Law of not resisting Superiours, seems to depend upon the Will of those men who at first joyned themselves in a Civil Society, from whom the Right of Government doth come to them that govern; if those had been at first asked, if their Will were to impose this burthen upon all, that they should chuse rather to dye, than in any case by Arms to repel the Force of Superiours; I know not whether they would answer, That it was their Will, unless perhaps with Page  215 this addition, if Resistance cannot be made but with the great disturbance of the Common-wealth, and de∣struction of many Innocents. Here we have his Re∣solution, that in great and certain danger, men may resist their Governours, if it may be without disturbance of the Common-wealth: if you would know who should be Judge of the greatness and certainty of the Danger, or how we may know it, Grotius hath not one word of it, so that for ought appears to the contrary, his mind may be, that eve∣ry private man may be Judge of the Danger, for other Judge he appoints none; it had been a foul Fault in so desperate a piece of Service, as the re∣sisting of Superiours, to have concealed the lawful Means, by which we may judge of the Greatness or Certainty of publick Danger, before we lift up our hands against Authority, considering how prone most of us are, to censure and mistake those things for great and certain Dangers, which in truth many times are no dangers at all, or at the most but very small ones; and so flatter our selves, that by resisting our Superiours, we may do our Country laudable Service, without Distur∣bance of the Common-wealth, since the Effects of Sedition cannot be certainly judged of but by the Events only.

Grotius proceeds to answer an Objection against this Doctrine of resisting Superiours. If (saith he) any man shall say, that this rigid Doctrine of dying, rather than resisting any Injuries of Superiours, is no humane, but a Divine Law: It is to be noted, that men at first, not by any Precept of God, but of their own Accord, led by Experience of the Infirmities of Page  216 separated Families against Violence, did meet together in Civil Society, from whence Civil Power took begin∣ning, which therefore St. Peter calls an humane Ordi∣nance, although elsewhere it be called a divine Ordinance, because God approveth the wholesom Institutions of men; God in approving a humane Law is to be thought to ap∣prove it as humane, and in a humane manner.

And again in another place he goeth further, and teacheth us, That if the Question happen to be concern∣ing the primitive Will of the People, it will not be amiss for the People that now are, and which are accounted the same with them that were long ago, to express their meaning, in this matter, which is to be followed, unless it certainly appear, that the People long ago willed other∣wise. lib. 2. cap. 2.

For fuller Explication of his Judgment about re∣sisting Superiors, he concludes thus: The greater the thing is which is to be preserved, the greater is the Equity which reacheth forth an Exception against the words of the Law: yet I dare not (saith Grotius) with∣out Difference condemn either simple men or a lesser part of the People, who in the last Refuge of Necessity, do so use this Equity, as that in the mean time, they do not forsake the Respect of the common Good.

Another Doctrine of Grotius is, That the Empire which is exercised by Kings, doth not cease to be the Empire of the People; that Kings who in a lawful Order succeed those who were elected, have the su∣preme Power by an usufructuary Right only, and no Propriety.

Furthermore he teacheth, That the People may chuse what Form of Government they please, and their Will is the Rule of Right. Populus eligere potest Page  217 qualem vult gubernationis formam, neque ex prae∣stantia formae, sed ex voluntate jus metiendum est. lib. 1. cap. 3.

Also, That the People chusing a King may reserve some Acts to themselves, and may bestow others upon the King, with full Authority, if either an express Partition be appointed, or if the People being yet free, do command their future King, by way of a standing Command, or if any thing be added by which it may be understood, that the King may be compelled or else punished.

In these Passages of Grotius which I have cited, we find evidently these Doctrines.

  • 1. That Civil Power depends on the Will of the People.
  • 2. That private Men or petty Multitudes may take up Arms against their Princes.
  • 3. That the lawfullest Kings have no Pro∣priety in their Kingdoms, but an usufructuary Right only: as if the People were the Lords, and Kings but their Tenants.
  • 4. That the Law of Not resisting Superiors, is a humane Law, depending on the Will of the People at first.
  • 5. That the Will of the first People, if it be not known, may be expounded by the People that now are.

Page  218No doubt but Grotius foresaw what Uses the Peo∣ple might make of these Doctrines, by concluding, if the chief Power be in the People, that then it is lawful for them to compel and punish Kings as oft as they misuse their Power: Therefore he tells us, He rejects the Opinion of them, who every where and without Exception will have the chief Power to be so the Peoples, that it is lawful for them to compel and punish Kings as oft as they misuse their Power; and this Opinion he confesseth, if it be altogether re∣ceived, hath been and may be the cause of many Evils. This cautelous Rejection qualified with these Terms of every where without Exception, and alto∣gether, makes but a mixt Negation, partly negative, and partly affirmative (which our Lawyers call a negative Repugnant) which brings forth this modal Proposition, That in some places with Exception, and in some sort the People may compel and punish their Kings.

But let us see how Grotius doth refute the ge∣neral Opinion, That People may correct Kings. He frames his Argument in these words: It is lawful for every man to yield himself to be a private Servant to whom he please. What should hinder, but that also it may be lawful for a free People so to yield them∣selves to one or more, that the Right of governing them be fully set over without retaining any part of the Right? And you must not say, That this may not be presumed; for we do not now seek, what in a doubt∣ful case may be presumed, but what by Right may be done. Thus far is the Argument, in which the most that is proved (if we gratifie him, and yield his whole Argument for good) is this, That Page  219the People may grant away their Power without retaining any part. But what is this to what the People have done? For though the People may give away their Power without reservation of any part to themselves; yet if they have not so done, but have reserved a part, Grotius must con∣fess, that the People may compel and punish their Kings, if they transgress: so that by his favour, the point will be, not what by Right may be done, but what in this doubtful case hath been done, since by his own Rule it is the Will and Meaning of the first People that joyned in Society, that must regulate the Power of their Succes∣sours.

But on Grotius side it may be urged, That in all presumption the People have given away their whole Power to Kings, unless they can prove they have reserved a part; for if they will have any benefit of a Reservation or Exception, it lies on their part to prove their Exception, and not on the Kings part who are in possession.

This Answer, though in it self it be most just and good; yet of all men Grotius may not use it. For he saves the Peoples labour of proving the primitive Reservation of their Forefathers, by ma∣king the People that now are competent Exposi∣tors of the meaning of those first Ancestors, who may justly be presumed, not to have been either so improvident for themselves, or so negligent of all their Posterity, when by the Law of Nature they were free, and had all things common, at an instant without any Condition or Limitation to give away that Liberty and Right of Community, Page  220 and to make themselves and their Children eternal∣ly subject to the Will of such Governours as might misuse them without Controul.

On the behalf of the People, it may be further answered to Grotius, That although our Ancestors had made an absolute Grant of their Liberty, with∣out any Condition expressed; yet it must be ne∣cessarily implied, that it was upon condition to be well governed, and that the Non-performance of that implied Condition, makes the Grant void; Or, if we will not allow an implicit Con∣dition, then it may be said, That the Grant in it self was a void Grant, for being unreasonable, and a violation of the Law of Nature, without any valuable Consideration. What sound Reply Gro∣tius can return to such Answers, I cannot con∣ceive, if he keep himself to his first Principle of natural Community. As Grotius's Argument against the People is not sound, so his Answer to the Argument that is made for the People, is not satisfactory. It is objected, That he that ordains, is above him that is ordained. Grotius answers, Ve∣rum duntaxat est in ea constitutione cujus effectus per∣petuò pendet à voluntate constituentis, non etiam in ea quae ab initio est voluntatis, postea verò effectum habet necessitatis, quomodo mulier virum sibi constituit, cui parere semper habet necesse. The Reply may be, That by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People, de∣pends perpetually upon the Will of them that Constitute, and upon no other Necessity: he will not say, That it is by any necessity of the Law of Nature, or by any positive Law of God; he teach∣eth, Page  221 That non Dei praecepto, sed sponte, men entred into Civil Society, that it is an Humane Ordi∣nance, that God doth only approve it ut huma∣num, and humano modo. He tells us further, That Populus potest eligere qualem vult gubernationis for∣mam, & ex voluntate jus metiendum est; that the People may give the King as little Power as they will, and for as little time as they please, that they may make temporary Kings, as Directors and Prote∣ctors: jus quovis tempore revocabile, id est, precarium; as the Vandals in Africa, and the Goths in Spain, would depose their Kings as oft as they displeased them, horum enim actus irriti possunt reddi ab his qui potestatem revocabiliter dederunt, ac proinde non idem est effectus nec jus idem. Here he doth teach in plain words, the Effect doth depend upon the Will of the People. By this we may judge how improperly he useth the instance of a Woman, that appoints her self a Husband, whom she must al∣ways necessarily obey, since the necessity of the continuance of the VVife's obedience depends upon the Law of God, which hath made the Bond of Matrimony indissolvable. Grotius will not say the like for the continuance of the Subjects obedience to the Prince, neither will they say that VVomen may chuse Husbands, as he tells us the People may chuse Kings, by giving their Husbands as little power, and for as little a time as they please.

Next it is objected, That Tutors who are set over Pupils may be removed, if they abuse their power. Grotius answers, In Tutore hoc procedit qui superiorem habet, at in Imperiis quia progressus non datur in infi∣nitum, Page  222 omnino in aliqua persona aut coetu consistendum est: We must stay in some one Person, or in a Multi∣tude, whose faults (because they have no superiour Judge above them) God hath witnessed that he will have a particular care of, either to revenge them, if he judge it needful, or to tolerate them, either for Pu∣nishment, or Tryal of the People. It is true, in King∣doms we cannot proceed in infinitum, yet we may, and must go to the highest, which by Grotius his Rule is the People, because they first made Kings, so that there is no need to stay in aliqua persona, but in coetu, in the People, so that by his Do∣ctrine Kings may be punished by the People, but the faults of the People must be left to the Judg∣ment of God.

I have briefly presented here the desperate In∣conveniences which attend upon the Doctrine of the natural freedom and community of all things; these and many more Absurdities are easily remo∣ved, if on the contrary we maintain the natural and private Dominion of Adam, to be the fountain of all Government and Propriety: And if we mark it well, we shall find that Grotius doth in part grant as much; The ground why those that now live do obey their Governours, is the Will of their Forefathers, who at the first ordained Princes, and, in obedience to that Will, the Children con∣tinue in subjection; this is according to the mind of Grotius: so that the Question is not, Whether Kings have a fatherly Power over their Subjects, but how Kings came first by it. Grotius will have it, that our Forefathers being all free, made an Assignment of their Power to Kings; the other Opinion denies Page  223 any such general freedom of our Forefathers, but derives the Power of Kings from the Original Do∣minion of Adam.

This natural Dominion of Adam may be proved out of Grotius himself, who teacheth, That gene∣ratione jus acquiritur Parentibus in Liberos, and that naturally no other can be found, but the Parents to whom the Government should belong, and the Right of Ruling and Compelling them doth belong to Parents. And in another place he hath these words, speak∣ing of the fifth Commandment, Parentum nomine, qui naturales sunt Magistratus, etiam alios Rectores par est intelligi, quorum authoritas Societatem huma∣nam continet: and if Parents be natural Magi∣strates, Children must needs be born natural Sub∣jects.

But although Grotius acknowledge Parents to be natural Magistrates, yet he will have it, that Children, when they come to full age, and are separated from their Parents, are free from natural Subjection. For this he offers proof out of Ari∣stotle, and out of Scripture. First, for Aristotle; we must note, he doth not teach, that every separation of Children of full age, is an Obtaining of liberty, as if that men when they come to years, might vo∣luntarily separate themselves, and cast off their natural Obedience; but Aristotle speaks only of a passive Separation; for he doth not say, that Children are subject to Parents until they do sepa∣rate, but, he saith, until they be separated,〈 in non-Latin alphabet 〉, in the Verb of the Passive Voice. That is, until by Law they be separated: for the Law (which is nothing else but the Will of him that hath Page  224 the Power of the Supreme Father) doth in many cases, for the publick Benefit of Society, free Chil∣dren from subjection to the subordinate Parent, so that the natural Subjection by such Emancipation of Children, is not extinguished, but only assumed and regulated by the Parent paramount.

Secondly, Grotius cites Numb. 30. to prove that the power of the Fathers over the Sons and Daughters, to dissolve their Vows, was not perpetual, but during the time only whilst the Children were part of the Fa∣thers Family. But if we turn to the Chapter, we may find that Grotius either deceives himself or us; for there is not one word in that Chapter con∣cerning the Vows of Sons, but of Daughters only, being in their Father's Family; and the being of the Daughter in the Father's House, meaneth only the Daughter's being a Virgin, and not married, which may be gathered by the Argument of the whole Chapter, which taketh particular order for the Vows of VVomen of all estates. First, for Virgins, in the third Verse. Secondly, for VVives in general, in the sixth Verse. Thirdly, for VVi∣dows, and VVomen divorced, in the ninth Verse. There is no Law for Virgins out of their Father's Houses; we may not think they would have been omitted, if they had been free from their Fa∣thers; we find no freedom in the Text for VVo∣men, till after Marriage: And if they were mar∣ried, though they were in their Father's Houses, yet the Fathers had no power of their Vows, but their Husbands.

If, by the Law of Nature, departure from the Father's House had emancipated Children, why Page  225 doth the Civil Law, contrary to the Law of Nature, give power and remedy to Fathers for to recover by Action of Law their Children that depart, or are taken away from them without their consent? Without the consent of Parents the Civil Law al∣lows no emancipation.

Concerning Subjection of Children to Parents, Grotius distinguisheth three several times.

The first is the time of Imperfect Judgment.

The second is the time of Perfect Judgment: but whilst the Son remains part of the Father's Fa∣mily.

The third is, the time after he hath departed out of his Father's Family.

In the first time he saith. All the actions of Children are under the dominion of the Parents.

During the second time, when they are of the age of mature Judgment, they are under their Father's command in those actions only, which are of moment for their Parents Family. In other actions the Children have a power or moral faculty of doing, but they are bound in those also to study always to please their Parents. But since this Duty is not by force of any moral faculty, as those former are, but only of Piety, Observance, and Duty of repaying Thanks; it doth not make any thing void which is done against it, as neither a gift of any thing is void, being made by any Owner whatsoever, against the rules of Parsimony.

In both these times, the Right of Ruling and Com∣pelling is (as Grotius acknowledgeth) comprehended so far forth as Children are to be compelled to their Duty, or amended; although the power of a Parent doth so follow the person of a Father, that it cannot be Page  226 pulled away, and transferred upon another, yet the Father may naturally pawn, or also sell his Son, if there be need.

In the third time he saith, The Son is in all things Free, and of his own Authority: always that Duty remaining of Piety and Observance, the cause of which is perpetual. In this triple distinction, though Grotius allow Children in some cases during the second, and in all cases during the third time to be free, and of their own Power, by a moral Fa∣culty: yet, in that he confesseth, in all cases Chil∣dren are bound to study always to please their Parents out of Piety and Duty, the cause of which, as he saith, is perpetual: I cannot conceive, how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave, since they are always bound to study to please their Parents. And though by the Laws of some Nations, Children, when they attain to years of Discretion, have Power and Li∣berty in many actions; yet this Liberty is granted them by Positive and Humane Laws only, which are made by the Supreme Fatherly Power of Prin∣ces, who Regulate, Limit, or Assume the Autho∣rity 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 privi∣ledged in some cases, from obedience to subordi∣nate Parents.

Page  227Touching the Point of dissolving the Vows of Children, Grotius in his last Edition of his Book hath corrected his first: for in the first he teacheth, That the power of the Father was greater over the Daughter dwelling with him, than over the Son; for her Vow he might make void, but not his: But instead of these words, in his last Edition, he saith, That the power over the Son or Daughter to dissolve Vows, was not perpetual, but did endure as long as the Children were a part of their Fathers Family. About the mean∣ing of the Text out of which he draws this Conclu∣sion, I have already spoken.

Three ways Grotius propoundeth, whereby Su∣preme Power may be had.

First, By full Right of Propriety.

Secondly, By an Ʋsufructuary Right.

Thirdly, By a Temporary Right.

The Roman Dictators, saith he, had Supreme Power by a Temporary Right; as well those Kings who are first Elected, as those that in a lawful Right suc∣ceed to Kings elected, have Supreme Power by an usu∣fructuary Right: some Kings that have got Supreme Power by a just War, or into whose Power some People, for avoiding a greater Evil, have so yielded themselves, as that they have excepted nothing, have a full Right of Propriety.

Thus we find but two means acknowledged by Grotius, whereby a King may obtain a full Right of Propriety in a Kingdom: That is, either by a just War, or by Donation of the People.

How a War can be just without a precedent Title in the Conquerour, Grotius doth not shew; and if the Title only make the War just, then no Page  228 other Right can be obtained by War, than what the Title bringeth; for a just War doth only put the Conquerour in possession of his old Right, but not create a new. The like which Grotius saith of Succession, may be said of War. Succession (saith he) is no Title of a Kingdom, which gives a Form to the Kingdom, but a Continuation of the old; for the Right which began by the Election of the Family, is continued by Succession; wherefore, so much as the first Election gave, so much the Succession brings. So to a Conquerour that hath a Title, War doth not give, but put him in possession of a Right: and except the Conquerour had a full Right of Proprie∣ty at first, his Conquest cannot give it him: for if originally he and his Ancestors had but an usu∣fructuary Right, and were outed of the possession of the Kingdom by an Usurper: here, though the Re-conquest be a most just War, yet shall not the Conquerour in this case gain any full Right of Propriety, but must be remitted to his usufru∣ctuary Right only: for what Justice can it be, that the Injustice of a third Person, an Usurper, should prejudice the People, to the devesting of them of that Right of Propriety, which was reserved in their first Donation to their Elected King, to whom they gave but an usufructuary Right, as Grotius conceiveth? Wherefore it seems impossi∣ble, that there can be a just War, whereby a full Right of Propriety may be gained, according to Grotius's Principles. For if a King come in by Conquest, he must either conquer them that have a Governour, or those People that have none: if they have no Governour, then they are a free Page  229 People, and so the War will be unjust to conquer those that are free, especially if the Freedom of the People be by the primary Law of Nature, as Grotius teacheth: But if the People conquered have a Go∣vernour, that Governour hath either a Title or not: If he hath a Title, it is an unjust War that takes the Kingdom from him: If he hath no Title, but only the Possession of a Kingdom, yet it is unjust for any other man, that wants a Title also, to conquer him that is but in possession: for it is a just Rule, That where the Cases are alike, he that is in Possession is in the better condition; In pari causa possidentis melior conditio. Lib. 2. c. 23. And this by the Law of Nature, even in the Judgment of Grotius. But if it be admitted, that he that attempts to conquer hath a Title, and he that is in possession hath none: here the Conquest is but in nature of a possessory Action, to put the Conquerour in pos∣session of a primer Right, and not to raise a new Title; for War begins where the Law fails: Ʋbi Judicia deficiunt incipit Bellum. Lib. 2. cap. 1. And thus, upon the matter, I cannot find in Grotius's Book De Jure Belli, how that any Case can be put wherein by a just War a man may become a King, pleno Jure Proprietatis.

All Government and Supreme Power is found∣ed upon publick Subjection, which is thus defined by Grotius. Publica Subjectio est, quâ se Populus homini alicui, aut pluribus hominibus, aut etiam po∣pulo alteri in ditionem dat. Lib. 2. cap. 5. If Subje∣ction be the Gift of the People, how can Supreme Power, pleno Jure, in full Right, be got by a just War?

Page  230As to the other means whereby Kings may get Supreme Power in full Right of Propriety, Grotius will have it to be, when some People, for avoiding a greater Evil, do so yield themselves into anothers Power, as that they do except nothing. It would be considered how, without War, any People can be brought into such danger of life, as that because they can find no other ways to defend themselves, or because they are so pressed with poverty, as they cannot other∣wise have means to sustain themselves, they are forced to renounce all Right of Governing them∣selves, and deliver it to a King.

But if such a Case cannot happen, but by a War only, which reduceth a People to such terms of ex∣tremity, as compels them to an absolute Abrenun∣ciation of all Sovereignty: then War, which cau∣seth that necessity, is the prime means of extorting such Soveraignty, and not the free Gift of the Peo∣ple, who cannot otherwise chuse but give away that Power which they cannot keep.

Thus, upon the reckoning, the two ways pro∣pounded by Grotius, are but one way; and that one way, in conclusion, is no way whereby Su∣preme Power may be had in full Right of Propriety. His two ways are, a Just War, or a Donation of the People; a just War cannot be without a Title, no Title without the Donation of the People, no Do∣nation without such a Necessity as nothing can bring upon the Donors but a War. So that howsoever Grotius in words acknowledges that Kings may have a full Right of Propriety, yet by consequence he denies it, by such circular Suppositions, as by coincidence destroy each other, and in effect he Page  231 leaves all People a Right to plead in Bar against the Right of Propriety of any Prince, either per minas, or per dures.

Many times, saith Grotius, it happens, that War is grounded upon Expletive Justice, Justitiam Exple∣tricem, which is, when a man cannot obtain what he ought, he takes that which is as much in value, which in moral Estimation is the same. For in War, when the same Province cannot be recovered, to the which a man hath a Title, he recovers another of the like value. This recovery cannot give a full Right of Propriety: because the Justice of such a War reacheth no farther than to a compensation for a former Right to another thing, and therefore can give no new Right.

I am bound to take notice of a Case put by Grotius, amongst those Causes which he thinks should move the People to renounce all their Right of Governing, and give it to another. It may al∣so happen (saith he) that a Father of a Family possessing large Territories, will not receive any man to dwell within his Land upon any other condition. And in another place, he saith, That all Kings are not made by the People, which may be sufficiently un∣derstood by the Example of a Father of a Family receiving Strangers under the Law of Obedience. In both these passages we have a close and curt ac∣knowledgment, That a Father of a Family may be an absolute King over Strangers, without Choice of the People; now I would know whether such Fa∣thers of Families have not the same absolute Power over their own Children, without the Peoples Choice, which he allows them over Strangers: Page  232 if they have, I cannot but call them Absolute pro∣prietary Kings, though Grotius be not willing to give them that Title in plain terms: for indeed to allow such Kings, were to condemn his own Principle, That Dominion came in by the Will of the People; and so consequently to overthrow his Ʋsufructuary Kings, of whom I am next to speak.

Grotius saith, That the Law of Obeying, or Re∣sisting Princes, depends upon the Will of them who first met in Civil Society, from whom Power doth flow to Kings. And, That men of their own accord came to∣gether into Civil Society, from whence springs Civil Power, and the People may chuse what Form of Govern∣ment they please. Upon these Suppositions, he con∣cludes, That Kings, elected by the People, have but an Ʋsufructuary Right; that is, a Right to take the profit or fruit of the Kingdom, but not a Right of Propriety or Power to alienate it. But why doth he call it an Ʋsufructuary Right? It seems to me a term too mean or base to express the Right of any King, and is derogatory to the Dignity of Supreme Majesty. The word Ʋsufructuary is used by the Lawyers, to signifie him that hath the Use, Profit, or Fruit of some Corporal thing, that may be used without the Property; for of fungi∣ble things (res fungibles, the Civilians call them) that are spent or consumed in the Use, as Corn, Wine, Oyl, Money, there cannot be an Ʋsufructuary Right.

It is to make a Kingdom all one with a Farm, as if it had no other Use but to be let out to him that can make most of it: whereas, in truth, it is Page  233 the part and Duty of a King to govern, and he hath a Right so to do, and to that end Supreme Power is given unto him; the taking of the profit, or making use of the Patrimony of the Crown, is but as a means only to enable him to perform that work of Go∣vernment.

Besides, Grotius will not only have an elected King, but also his lawful Successors, to have but an Ʋsufructuary Right, so that though a King hath a Crown to him and to his Heirs, yet he will al∣low him no Propriety, because he hath no power to alienate it; for he supposeth the primary VVill of the People to have been to bestow Supreme Power to go in Succession, and not to be alienable; but for this he hath no better proof than a naked presumption: In Regnis quae Populi voluntate delatâ sunt, concedo non esse praesumendum eam fuisse Populi voluntatem, aut alienatio Imperii sui Regi permitte∣retur.

But though he will not allow Kings a Right of Propriety in their Kingdoms, yet a Right of Pro∣priety there must be in some body, and in whom but in the People? For he saith, The Empire which is exercised by Kings, doth not cease to be the Empire of the People. His meaning is, the Use is the King's, but the Property is the Peoples.

But if the Power to alienate the Kingdom be in him that hath the Property, this may prove a com∣fortable Doctrine to the People: but yet to allow a Right of Succession in Kings, and still to re∣serve a Right of Property in the People, may make some contradiction: for the Succession must ei∣ther hinder the Right of Alienation which is in the Page  234 People, or the Alienation must destroy that Right of Succession, which, by Grotius's confession, may attend upon elected Kings.

Though Grotius confess, that Supreme Power be Ʋnum quiddam, and in it self indivisible, ye he bsaith, Sometimes it may be divided either by parts po∣tential, or subjunctive. I take his meaning to be, that the Government or the Governed may be di∣vided: an Example he gives of the Roman Em∣pire, which was divided into the East and West: but whereas he saith, Fieri potest, &c. It may be, the People chusing a King, may reserve some Actions to themselves, and in others they may give full power to the King. The Example he brings out of Plato of the Heraclides doth not prove it, and it is to dream of such a Form of Government as never yet had name, nor was ever found in any setled Kingdom, nor cannot possibly be without strange Confusion.

If it were a thing so voluntary, and at the plea∣sure of men, when they were free, to put them∣selves under Subjection, why may they not as vo∣luntarily leave Subjection when they please, and be free again? If they had a liberty to change their Natural Freedom into a voluntary Subjection, there is stronger reason that they may change their voluntary Subjection into natural Freedom, since it is as lawful for men to alter their Wills as their Judgments.

Certainly it was a rare felicity, that all the men in the World at one instant of time should agree together in one mind, to change the Natural Community of all things into private Dominion: Page  235 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 Al∣teration 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 gi∣ven a propriety of any one thing to any other, had been to have robbed him of his Right to the common Use of all things. And of this Judgment the Jesuit Lud. Molina seems to be in his Book De Justitia, where he saith, Si aliquis de cohabitan∣tibus, &c. If one of the Neighbours will not give his Consent to it, the Commonwealth should have no Au∣thority over him, because then every other man hath no Right or Authority over him, and therefore can they not give Authority to the Commonwealth over him.

If our first Parents, or some other of our Fore∣fathers did voluntarily bring in Propriety of Goods, and Subjection to Governours, and it were in their power either to bring them in or not, or having brought them in, to alter their minds, and re∣store them to their first condition of Community and Liberty; what reason can there be alledged that men that now live should not have the same power? So that if any one man in the World, be he never so mean or base, will but alter his Will, and say, he will resume his Natural Right to Community, and be restored unto his Natural Li∣berty, and consequently take what he please, and do what he list; who can say that such a man doth more than by Right he may? And then it will be lawful for every man, when he please, Page  236 to dissolve all Government, and destroy all Pro∣perty.

VVhereas Grotius saith, That by the Law of Nature all things were at first Common; and yet teacheth, That after Propriety was brought in, it was against the Law of Nature to use Community; he doth thereby not only make the Law of Nature changeable, which he saith God cannot do, but he also makes the Law of Nature contrary to it self.

Page  [unnumbered]

OBSERVATIONS UPON Mr. HƲNTON'S Treatise of Monarchy: OR, THE ANARCHY Of a Limited or Mixed Monarchy.

THese Observations on the Treatise of Mo∣narchy written by Mr. Hunton, being of like Argument with the former, are here annexed, with this Advertisement, That the Treatise it self consists of two Parts: the first con∣cerning Monarchy in general; the latter concerning this particular Monarchy, and is seconded with a Vin∣dication, which alledgeth new matter about the nature, kinds, causes, and means of Limitation in Govern∣ment; intimating a mistrust that the Treatise had not fully or sufficiently discovered these Points.

These Observations reach only to the first Part of Page  [unnumbered] the Treatise, concerning Monarchy in general, Whe∣ther it can possibly be Limited or Mixed? If this be not made good, it is but vain labour to trouble the Rea∣der with the dispute about the nature, kinds, and causes of that which is not, nor cannot at all be; or to handle the Hypothesis about this particular Monarchy, for which the prime and chief Arguments are of no greater Antiquity than some Concessions since these present Troubles.

The ancient Doctrine of Government in these later days hath been strangely refined by the Romanists, and wonderfully improved since the Reformation, especially in point of Monarchy, by an Opinion, That the People have Originally a power to create several sorts of Mo∣narchy, and to limit and compound them at their pleasure. The consideration hereof caused me to scruple the modern Piece of Politicks touching Limited and Mixed Monarchy; and finding it only presented us by this Author, I have drawn these few Observations upon the most considerable part of his Treatise, desiring to receive satisfaction from the Author, or any other for him.

The Novelty of this Point challengeth a modest De∣bate; the rather, for that the Treatise acknowledgeth, that not only Monarchy, but also Aristocracy, and Democracy, may be either Simple, or Mixed of two or all three together, though it do not determine whether they can be Absolute or Limited.

Page  [unnumbered]

THE PREFACE

WE do but flatter our selves, if we hope ever to be governed without an Arbitrary Power. No: we mistake, the Question is not, Whether there shall be an Arbitrary Power; but the only point is, Who shall have that Arbitrary Power, whether one man or ma∣ny? There never was, nor ever can be any People governed without a Power of making Laws, and every Power of making Laws must be Arbitrary: For to make a Law according to Law, is Contradictio in adjecto. It is gene∣rally confessed, That in a Democracy the Su∣preme or Arbitrary Power of making Laws is in a Multitude; and so in an Aristocracy the like Legislative or Arbitrary Power is in a few, or in the Nobility. And therefore by a necessary Consequence, in a Monarchy the same Legisla∣tive Power must be in one; according to the Rule of Aristotle, who saith, Government is Page  [unnumbered] in One, or in a Few, or in Many.

This ancient Doctrine of Government, in these latter days, hath been strangely refined by the Romanists, and wonderfully improved since the Reformation, especially in point of Monar∣chy, by an Opinion, That the People have Originally a Power to create several sorts of Monarchy, to limit and compound them with other Forms of Government, at their pleasure.

As for this natural Power of the People, they find neither Scripture, Reason, or Practice to justifie it: For though several Kingdoms have several and distinct Laws one from another; yet that doth not make several sorts of Monarchy: Nor doth the difference of obtaining the Supreme Power, whether by Conquest, Election, Succession, or by any other way, make different sorts of Go∣vernment. It is the difference only of the Au∣thors of the Laws, and not of the Laws them∣selves, that alters the Form of Government; that is, whether one man, or more than one, make the Laws.

Since the growth of this new Doctrine, Of the Limitation and Mixture of Monarchy, it is most apparent, that Monarchy hath been crucified (as it were) between two Thieves, the Pope and the People; for what Principles the Papists make use of for the Power of the PopePage  [unnumbered] above Kings, the very same, by blotting out the word Pope, and putting in the word People, the Plebists take up to use against their Sove∣raigns.

If we would truly know what Popery is, we shall find by the Laws and Statutes of the Realm, that the main, and indeed the only Point of Popery, is the alienating and with∣drawing of Subjects from their Obedience to their Prince, to raise Sedition and Rebellion: If Popery and Popularity agree in this point, the Kings of Christendom, that have shaken off the Power of the Pope, have made no great bargain of it, if in place of one Lord abroad, they get many Lords at home within their own Kingdoms.

I cannot but reverence that Form of Govern∣ment which was allowed and made use of for God's own People, and for all other Nations. It were impiety, to think that God, who was careful to appoint Judicial Laws for his chosen People, would not furnish them with the best Form of Government: or to imagine, that the Rules given in divers places in the Gospel, by our blessed Saviour and his Apostles, for Obe∣dience to Kings, should now, like Almanacks out of date, be of no use to us; because it is pre∣tended, We have a Form of Government now, not once thought of in those days. It is Page  [unnumbered] a shame and scandal for us Christians, to seek the Original of Government from the Inventions or Fictions of Poets, Orators, Philosophers, and Heathen Historians, who all lived thousands of years after the Creation, and were (in a man∣ner) ignorant of it: and to neglect the Scri∣ptures, which have with more Authority most particularly given us the true Grounds and Principles of Government.

These Considerations caused me to scruple this Modern piece of Politicks, touching Limited and Mixed Monarchy: and finding no other that presented us with the nature and means of Limitation and Mixture, but an Anonymous Author; I have drawn a few brief Observations upon the most considerable part of his Treatise, in which I desire to receive satisfaction from the Author himself, if it may be, according to his promise in his Preface; or if not from him, from any other for him.

Page  237

THE ANARCHY Of a Limited or Mixed MONARCHY.

THere is scarce the meanest man of the mul∣titude, but can now in these days tell us, That the Government of the Kingdom of England is a LIMITED and MIXED Monarchy: And it is no marvel, since all the Dis∣putes and Arguments of these distracted Times both from the Pulpit and Press do tend and end in this Conclusion.

The Author of the Treatise of Monarchy hath copiously handled the nature and manner of Limited and Mixed Monarchy, and is the first and only man (that I know) hath undertaken the task of de∣scribing it; others only mention it, as taking it for granted.

Doctor Ferne gives the Author of this Treatise of Monarchy this testimony,* That the Mixture of Government is more accurately delivered and urged by this Treatise than by the Author of the Page  238 Fuller Answer. And in another place Doctor Ferne saith, He allows his distinction of Monarchy into Limited and Mixed.*

I have with some diligence looked over this Treatise, but cannot approve of these distin∣ctions which he propounds; I submit the reasons of my dislike to others judgments. I am some∣what confident that his Doctrine of Limited and Mixed Monarchy is an opinion but of yesterday, and of no antiquity, a me•• innovation in Policy, not so old as New England, though calculated pro∣perly for that Meridian. For in his first part of the Treatise which concerns Monarchy in general, there is not one proof, text, or example in Scri∣pture that he hath produced to justifie his conceit of Limited and Mixed Monarchy. Neither doth he afford us so much as one passage or reason out of Aristole, whose Books of Politicks, and whose natural reasons are of greatest authority and credit with all rational men, next to the sacred Scripture: Nay, I hope I may affirm, and be able to prove, that Aristotle doth confute both limited and mixed Monarchy,* howsoever Doctor Ferne think these new opinions to be raised upon Ari∣stotles Principles. As for other Politicians or Historians, either divine or humane, ancient or modern, our Author brings not one to confirm his opinions; nor doth he, nor can he shew that ever any Nation or People were governed by a limited or mixed Monarchy.

Machiavel is the first in Christendom that I can find that writ of a Mixed Government, but not one syllable of a Mixed Monarchy: he, in his discourses or disputations upon the Decades of Livy, falls so Page  239 enamored with the Roman Commonwealth, that he thought he could never sufficiently grace that popular Government, unless he said, there was something of Monarchy in it: yet he was never so impudent as to say, it was a mixed Monarchy. And what Machiavel hath said for Rome, the like hath Contarene for Venice. But Bodin hath laid open the errours of both these, as also of Polybius, and some few others that held the like opinions. As for the Kingdom of England, if it hath found out a Form of Government (as the Treatise layeth it down) of such perfection as never any people could; it is both a glory to the Nation, and also to this Author, who hath first decipher'd it.

I now make my approach to the Book it self: The Title is, A Treatise of Monarchy. The first part of it is, Of Monarchy in general: Where first, I charge the Author, that he hath not given us any definition or description of Monarchy in ge∣neral: for by the rules of method he should have first defined, and then divided: for if there be several sorts of Monarchy, then in something they must agree, which makes them to be Monarchies; and in something they must disagree and differ, which makes them to be several sorts of Monarchies. In the first place he should have shewed us in what they all agreed, which must have been a definition of Monarchy in general, which is the foundation of the Treatise; and except that be agreed upon, we shall argue upon we know not what. I press not this main omission of our Author out of any hu∣mour of wrangling; but because I am confident that had he pitched upon any definition of Monarchy in Page  240 general, his own definition would have confuted his whole Treatise. Besides, I find him pleased to give us a handsom definition of Absolute Monarchy, from whence I may infer, that he knew no other definition that would have fitted all his other sorts of Monarchy; it concerned him to have produced it, lest it might be thought there could be no Mo∣narchy but Absolute.

What our Author hath omitted, I shall attempt to supply, and leave to the scanning. And it shall be a real as well as nominal definition of Mo∣narchy. A Monarchy is the Government of one alone. For the better credit of this definition, though it be able to maintain it self, yet I shall deduce it from the Principles of our Author of the Treatise of Monarchy.

We all know that this word Monarch is com∣pounded of two Greek words, 〈 in non-Latin alphabet 〉 and 〈 in non-Latin alphabet 〉 is imperare to govern and rule; 〈 in non-Latin alphabet 〉 signifies one alone. The understanding of these two words may be picked out of our Author. First, for Go∣vernment he teacheth us, It is potestatis exercitium,*the exercise of a moral power; next he grants us, That every Monarch (even his limited Monarch) must have the supreme Power of the State in him, so that his Power must no way be limited by any power above his;*for then he were not a Monarch, but a subordinate Magistrate. Here we have a fair confession of a supreme unli∣mited Power in his limited Monarch: if you will know what he means by these words supreme Power, turn to his 26. page, there you will find, Supreme Power is either Legislative, or Gubernative, and that the Legislative power is the chief of the two; he makes Page  241 both supreme, and yet one chief: the like distin∣ction he hath before, where he saith, The power of Magistracy, in respect of its degrees,*is Nomothetical or Architectonical; and Guber∣native or Executive: by these words of Legislative, Nomothetical, and Architectonical Power, in plain English, he understands a power of making Laws; and by Gubernative and Executive, a power of putting those Laws in execution, by judging and punishing offenders.

The result we have from hence is, That by the Authors acknowledgment, every Monarch must have the supreme Power, and that supreme Power is, a power to make Laws: and howsoever the Au∣thor makes the Gubernative and Executive power a part of the supreme Power; yet he confesseth the Legislative to be chief, or the highest degree of power, for he doth acknowledge degrees of supreme Power; nay, he afterwards teacheth us, That the Legislative power is the height of power,*to which the other parts are subsequent and subservient: if Gubernative be subservient to Legislative, how can Gubernative power be supreme?

Now let us examine the Authors Limited Mo∣narch by these his own rules; he tells us, That in a moderated, limited, stinted,*condi∣tionate, legal or allayed Monarchy (for all these terms he hath for it) the supreme Power must be restrained by some Law according to which this power was given, and by direction of which this power must act; when in a line before he said, That the Monarchs power must not be limited by any power above his: yet here he will have his supreme Power restrained; not limited, and yet restrained: is not a restraint, Page  242 a limitation? And if restrained, how is it su∣preme? And if restrained by some Law, is not the power of that Law, and of them that made that Law, above his supreme Power? And if by the di∣rection of such Law only he must govern, where is the Legislative power, which is the chief of supreme Power? When the Law must rule and go∣vern the Monarch, and not the Monarch the Law, he hath at the most but a Gubernative or Executive power:*If his Authority transcends its bounds, if it command beyond the Law, the Subject is not bound legally to subjection in such cases, and if the utmost extent of the Law of the Land be the measure of the limited Monarchs power,*and Subjects duty, where shall we find the supreme Power, that Culmen or Apex potestatis, that prime〈 in non-Latin alphabet 〉, which our Author saith, must be in every Monarch? The word 〈 in non-Latin alphabet 〉, which signifies principality and power, doth also sig∣nifie principium, beginning; which doth teach us, that by the word Prince, or Principality, the prin∣cipium or beginning of Government is meant; this, if it be given to the Law, it robs the Monarch, and makes the Law the primum mobile; and so that which is but the instrument, or servant to the Mo∣narch, becomes the master. Thus much of the word 〈 in non-Latin alphabet 〉.

The other word is 〈 in non-Latin alphabet 〉, solus, one alone: the Monarch must not only have the supreme Power unlimited, but he must have it alone (with∣out any companions.*) Our Author teach∣eth us, He is no Monarch, if the supreme Power be not in one.* And again he saith, If you put the Apex potestatis, or supreme Page  243 Power in the whole body, or a part of it, you destroy the being of Monarchy.

Now let us see if his mixed Monarchy be framed according to these his own Principles. First, he saith, In a mixed Monarchy the Soveraign power must be originally in all three Estates. And again his words are, The three Estates are all sharers in the supreme Power— the primity of share in the supreme Power is in One. Here we find, that he that told us the supreme Power must be in one, will now allow his mixed Monarch but one share only of the supreme Power, and gives other shares to the Estates: thus he destroys the being of Monarchy, by putting the supreme Power, or Culmen potestatis, or a part of it, in the whole body, or a part thereof; and yet for∣merly he confesseth, That the power of Magi∣stracy cannot well be divided,*for it is one simple thing, or indivisible beam of Divine perfection: but he can make this indivisible beam to be divisible into three shares. I have done with the word 〈 in non-Latin alphabet 〉, solus, alone.

I have dwelt the longer upon this definition of Monarchy, because the apprehending of it out of the Authors own grounds quite overthrows both his Monarch limited by Law, and his Monarch mix∣ed with the States. For to Govern, is to give a Law to others, and not to have a Law given to go∣vern and limit him that governs: And to go∣vern alone, is not to have sharers or Compani∣ons mixed with the Governour. Thus the two words of which Monarchy is compounded, con∣tradict the two sorts of Monarchy which he pleads for, and by consequence his whole Treatise: for these two sorts of limited and mix∣edPage  244 Monarchy take up (in a manner) his whole Book.

I will now touch some few particular passages in the Treatise.

*Our Author first confesseth, It is Gods ex∣press Ordinance there should be Government, and he proves it by Gen. 3.16. where God ordained Adam to rule over his wife, and her desires were to be subject to his; and as hers, so all theirs that should come of her. Here we have the original grant of Government, and the fountain of all power placed in the Father of all Mankind; accordingly we find the Law for obedience to Government given in the terms of honour thy Father: not only the constitution of Power in general, but the limitation of it to one kind (that is, to Monarchy, or the Government of one alone) and the determination of it to the in∣dividual person and line of Adam, are all three Or∣dinances of God. Neither Eve nor her Children could either limit Adams power, or joyn others with him in the Government; and what was given unto Adam, was given in his person to his posterity. This paternal Power continued Monarchical to the Flood, and after the Flood to the confusion of Ba∣bel: when Kingdoms were first erected, planted, or scattered over the face of the World, we find Gen. 10.11. it was done by Colonies of whole Fa∣milies, over which the prime Fathers had supreme power, and were Kings, who were all the Sons or Grand-children of Noah, from whom they derived a fatherly and regal Power over their Families. Now if this supreme Power was setled and founded by God himself in the Fatherhood, how is it possible for the people to have any right or title to alter and Page  245 dispose of it otherwise? What Commission can they shew that gives them power either of Limitation or Mixture? It was God's Ordinance, that Supre∣macy should be unlimited in Adam, and as large as all the acts of his will: and as in him, so in all others that have supreme Power, as appears by the judgment and speech of the people to Joshuah when he was supreme Governour, these are their words to him, All that thou commandest us we will do; who∣soever he be that doth rebel against thy commandment, and will not hearken unto thy words in all that thou commandest him, he shall be put to death: We may not say, that these were evil Councellours or flattering Courtiers of Joshuah, or that he himself was a Ty∣rant for having such arbitrary power. Our Au∣thor, and all those who affirm, that power is con∣veyed to persons by publick consent, are forced to con∣fess, that it is the fatherly power that first enables a people to make such conveyance; so that admit∣ting (as they hold) that our Ancestors did at first convey power, yet the reason why we now living do submit to such power, is, for that our Forefa∣thers every one for himself, his family, and poste∣rity, had a power of resigning up themselves and us to a supreme Power. As the Scripture teacheth us, That supreme Power was originally in the Father∣hood without any limitation, so likewise Reason doth evince it, that if God ordained that Supremacy should be, that then Supremacy must of necessity be unlimited: for the power that limits must be above that power which is limited; if it be limited, it cannot be supreme: so that if our Author will grant supreme Power to be the Ordinance of God, the supreme Power will prove it self to be unli∣mited Page  246 by the same Ordinance, because a supreme limited Power is a contradiction.

The Monarchical Power of Adam the Father of all flesh, being by a general binding Ordinance setled by God in him and his posterity by right of fatherhood, the form of Monarchy must be preferred above other forms, except the like Or∣dinance for other forms can be shewed: neither may men according to their relations to the form they live under, to their affections and judgments in divers respects, prefer or compare any other form with Mo∣narchy. The point that most perplexeth our Au∣thor and many others, is, that if Monarchy be allowed to be the Ordinance of God, an absurdity would follow, that we should uncharitably condemn all the Communities which have not that form, for violation of Gods Ordinance, and pronounce those other Powers unlawful. If those who live under a Monarchy can justifie the form they live under to be Gods Ordi∣nance, they are not bound to forbear their own justification, because others cannot do the like for the form they live under; let others look to the defence of their own Government: if it cannot be proved or shewed that any other form of Govern∣ment had ever any lawful beginning, but was brought in or erected by Rebellion, must therefore the lawful and just obedience to Monarchy be de∣nied to be the Ordinance of God?

To proceed with our Author; in the 3d. page he saith, The Higher Power is Gods Ordinance: That it resideth in One or more, in such or such a way, is from humane designment; God by no word binds any people to this or that form, till they by their own act bind themselves. Because the power and con∣sent Page  247 of the People in Government is the burden of the whole Book, and our Author expects it should be admitted as a magisterial postulation, without any other proof than a naked supposition; and since others also maintain that originally Power was, or now is in the People, and that the first Kings were chosen by the People: they may not be offended, if they be asked in what sence they understand the word [People] be∣cause this, as many other words, hath different ac∣ceptions, being sometimes taken in a larger, other∣while in a stricter sence. Literally, and in the largest sence, the word People signifies the whole mul∣titude of mankind; but figuratively and synecdochical∣ly, it notes many times the major part of a multi∣tude, or sometimes the better, or the richer, or the wiser, or some other part; and oftentimes a very small part of the People, if there be no other ap∣parent opposite party, hath the name of the People by presumption.

If they understand that the entire multitude or whole People have originally by nature Power to chuse a King, they must remember, that by their own principles and rules, by nature all mankind in the World makes but one People, who they suppose to be born alike to an equal freedom from Subjection; and where such freedom is, there all things must of necessity be common: and there∣fore without a joynt consent of the whole People of the World, no one thing can be made proper to any one man, but it will be an injury, and an usurpation upon the Common right of all others. From whence it follows, that natural freedom be∣ing once granted, there cannot be any one man chosen a King without the universal consent of all Page  248 the People of the world at one instant, nemine contradicente. Nay, if it be true that nature hath made all men free; though all mankind should concur in one vote, yet it cannot seem reasonable, that they should have power to alter the law of nature; for if no man have power to take away his own life without the guilt of being a murthe∣rer of himself, how can any people confer such a power as they have not themselves upon any one man, without being accessories to their own deaths, and every particular man become guilty of being felo de se?

If this general signification of the word People be disavowed, and men will suppose that the People of particular Regions or Countries have power and freedom to chuse unto themselves Kings; then let them but observe the consequence: Since na∣ture hath not distinguished the habitable World into Kingdoms, nor determined what part of a People shall belong to one Kingdom, and what to another, it follows, that the original freedom of mankind being supposed, every man is at liberty to be of what Kingdom he please, and so every petty company hath a Right to make a Kingdom by it self; and not only every City, but every Village, and every Family, nay and every par∣ticular man, a liberty to chuse himself to be his own King if he please; and he were a madman that being by nature free, would chuse any man but himself to be his own Governour. Thus to avoid the having but of one King of the whole world, we shall run into a liberty of having as many Kings as there be men in the world, which upon the matter, is to have no King at all, but to leave Page  249 all men to their natural liberty, which is the mis∣chief the Pleaders for natural liberty do pretend they would most avoid.

But if neither the whole people of the world, nor the whole people of any part of the world be meant, but only the major part, or some other part of a part of the world; yet still the objection will be the stronger. For besides that nature hath made no partition of the world, or of the people into distinct Kingdoms, and that without an universal consent at one and the same instant no partition can be made: yet if it were lawful for particular parts of the world by consent to chuse their Kings, nevertheless their elections would bind none to subjection but only such as consented; for the major part never binds, but where men at first either agree to be so bound, or where a higher power so commands: Now there being no higher power than nature, but God himself; where neither nature nor God appoints the major part to bind, there con∣sent is not binding to any but only to themselves who consent.

Yet, for the present to gratifie them so far as to admit that either by nature, or by a general consent of all mankind, the world at first was divided in∣to particular Kingdoms, and the major part of the people of each Kingdom assembled, allowed to chuse their King: yet it cannot truly be said that ever the whole people, or the major part, or indeed any considerable part of the whole people of any Nation ever assembled to any such purpose. For except by some secret miraculous instinct they should all meet at one time, and place, what one man, or company of men less than the whole Page  250 people hath power to appoint either time or place of elections, where all be alike free by nature? and without a lawful summons, it is most unjust to bind those that be absent. The whole People cannot summon it self; one man is sick, another is lame, a third is aged, and a fourth is under age of discretion: all these at some time or other, or at some place or other, might be able to meet, if they might chuse their own time and place, as men naturally free should.

In Assemblies that are by humane politique con∣stitution, the superior power that ordains such as∣semblies, can regulate and confine them, both for time, place, persons, and other circumstances: but where there is an equality by nature, there can be no superior power; there every Infant at the hour it is born in, hath a like interest with the greatest and wisest man in the World. Mankind is like the sea, ever ebbing or flowing, every minute one is born, another dies; those that are the People this minute, are not the People the next minute, in every instant and point of time there is a variation: no one time can be indifferent for all mankind to assemble; it cannot but be mischievous always at the least to all Infants, and others under age of discretion; not to speak of Women, especially Virgins, who by birth have as much natural freedom as any other, and therefore ought not to lose their liberty without their own consent.

But in part to salve this, it will be said that Infants and Children may be concluded by the votes of their Parents. This remedy may cure some part of the mischief, but it destroys the whole cause, and at last stumbles upon the true Page  251 original of Government. For if it be allowed, that the acts of Parents bind the Children, then farewel the Doctrine of the natural freedom of man∣kind; where Subjection of Children to Parents is natural, there can be no natural freedom. If any reply, that not all Children shall be bound by their Parents consent, but only those that are under age: It must be considered, that in nature there is no nonage; if a man be not born free, she doth not assign him any other time when he shall attain his freedom: or if she did, then Children attaining that age, should be discharged of their Parents con∣tract. So that in conclusion, if it be imagined that the People were ever but once free from Sub∣jection by nature, it will prove a meer impossibility ever lawfully to introduce any kind of government whatsoever, without apparent wrong to a multi∣tude of People.

It is further observable, that ordinarily Chil∣dren and Servants are far a greater number than Parents and Masters; and for the major part of these to be able to vote and appoint what Govern∣ment or Governours their Fathers and Masters shall be subject unto, is most unnatural, and in ef∣fect to give the Children the government over their Parents.

To all this it may be opposed, What need dis∣pute how a People can chuse a King, since there be multitude of examples that Kings have been, and are now adays chosen by their People? The an∣swer is, 1. The question is not of the fact, but of the right, whether it have been done by a natural, or by an usurped right. 2. Many Kings are, and have been chosen by some small part of a Page  252 people; but by the whole, or major part of a Kingdom not any at all. Most have been elected by the Nobility, Great men, and Princes of the blood, as in Poland, Denmark, and in Sweden; not by any collective or representative body of any Nation: sometimes a factious or seditious City, or a mutinous Army hath set up a King, but none of all those could ever prove they had Right or just title either by Nature, or any otherwise, for such elections. We may resolve upon these two propositions: 1. That the people have no power or right of themselves to chuse Kings. 2. If they had any such right, it is not possible for them any way lawfully to exercise it.

You will say, There must necessarily be a right in some body to elect, in case a King die without an Heir. I answer, No King can die without an Heir, as long as there is any one man living in the world. It may be the Heir may be unknown to the people; but that is no fault in nature, but the negligence or ignorance of those whom it concerns. But if a King could die without an Heir, yet the Kingly power in that case shall not escheat to the whole people, but to the supream Heads and Fathers of Families; not as they are the people, but quatenus they are Fa∣thers of people, over whom they have a supream power devolved unto them after the death of their soveraign Ancestor: and if any can have a right to chuse a King, it must be these Fathers, by confer∣ring their distinct fatherly powers upon one man alone. Chief Fathers in Scripture are accounted as all the people, as all the Children of Israel, as all the Congregation, as the Text plainly expounds it self, 2 Chr. 1.2. where Solomon speaks to All Page  253 Israel, that is, to the Captains, the Judges, and to every Governour, the CHIEF OF THE FATHERS: and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel, 1 King. 8.1. and the 2 Chr. 5.2.

If it be objected, That Kings are not now (as they were at the first planting or peopling of the world) the Fathers of their People or Kingdoms, and that the fatherhood hath lost the right of go∣verning; An answer is, That all Kings that now are, or ever were, are, or were either Fathers of their People, or the Heirs of such Fathers, or Usurpers of the right of such Fathers. It is a truth undeniable, that there cannot be any multitude of men whatsoever, either great, or small, though gathered together from the several corners and remotest regions of the world, but that in the same multitude, considered by it self, there is one man amongst them that in nature hath a right to be the King of all the rest, as being the next Heir to Adam, and all the other subject unto him: every man by nature is a King, or a Subject: the obedience which all Subjects yield to Kings, is but the paying of that duty which is due to the supream fatherhood: Many times by the act either of an Usurper himself, or of those that set him up, the true Heir of a Crown is dispossessed, God using the ministry of the wickedest men for the re∣moving and setting up of Kings: in such cases the Subjects obedience to the fatherly power must go along and wait upon God's providence, who only hath right to give and take away King∣doms, and thereby to adopt Subjects into the o∣bedience of another fatherly power: according to Page  254 that of Arist. 〈 in non-Latin alphabet 〉. A Monarchy or Kingdom will be a fatherly govern∣ment. Ethic. l. 8. c. 12.

However the natural freedom of the People be cried us as the sole means to determine the kind of Government and the Governours: yet in the close, all the favourers of this opinion are constrained to grant that the obedience which is due to the father∣ly Power is the true only cause of the Subjection which we that are now living give to Kings, since none of us gave consent to Government, but only our Fore-fathers act and consent hath con∣cluded us.

Whereas many confess that Government only in the abstract is the ordinance of God, they are not able to prove any such ordinance in the Scripture, but only in the fatherly power, and therefore we find the Commandment that enjoyns obedience to Superiours, given in the terms of Honour thy Fa∣ther: so that not only the Power or right of Go∣vernment, but the form of the power of governing, and the person having that power, are all the ordinance of God: the first Father had not only simply pow∣er, but power Monarchical, as he was a Father, immediately from God. For by the appointment of God, as soon as Adam was created he was Mo∣narch of the World, though he had no Subjects; for though there could not be actual Government until there were Subjects, yet by the right of na∣ture it was due to Adam to be Governour of his posterity: though not in Act, yet at least in ha∣bit. Adam was a King from his Creation: And in the state of innocency he had been Governour of his Children; for the integrity or excellency of Page  255 the Subjects doth not take away the order or eminency of the Governour. Eve was subject to Adam before he sinned; the Angels, who are of a pure nature, are subject to God: which confutes their saying who in disgrace of civil Government or power say it was brought in by sin: Government as to coactive power was after sin, because coaction supposeth some dis∣order, which was not in the state of innocency: But as for directive power, the condition of humane na∣ture requires it, since civil Society cannot be imagi∣ned without power of Government: for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done; yet things indifferent, that depended meerly on their free will, might be directed by the power of Adam's command.

If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was, we may find the di∣vision of the Earth into distinct Kingdoms and Countries, by several families, whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right; and for the pre∣servation of this power and right in the Fathers, God was pleased upon several Families to bestow a Language on each by it self, the better to unite it into a Nation or Kingdom; as appears by the words of the Text, Gen. 10. These are the Fami∣lies of the Sons of Noah, after their generations in their Nations, and by these were the Nations divi∣ded in the Earth after the floud: Every one after HIS TONGUE, AFTER THEIR FAMILIES in their Nations.

Page  256The Kings of England have been graciously pleased to admit and accept the Commons in Parliament as the Representees of the Kingdom, yet really and truly they are not the representative body of the whole Kingdom.

The Commons in Parliament are not the repre∣sentative body of the whole Kingdom: they do not represent the King, who is the head and prin∣cipal member of the Kingdom; nor do they re∣present the Lords, who are the nobler and higher part of the body of the Realm, and are personally present in Parliament, and therefore need no re∣presentation. The Commons only represent a part of the lower or inferior part of the body of the People, which are the Free-holders worth 40 s. by the year, and the Commons or Free-men of Cities and Burroughs, or the major part of them. All which are not one quarter, nay, not a tenth part of the Commons of the Kingdom; for in every Parish, for one Free-holder there may be found ten that are no Freeholders: and anciently before Rents were improved, there were nothing near so many Free-holders of 40 s. by the year as now are to be found.

The scope and Conclusion of this discourse and Argument is, that the people taken in what notion or sense soever, either diffusively, collectively, or repre∣sentatively, have not, nor cannot exercise any right or power of their own by nature, either in chusing or in regulating Kings. But whatsoever power any people doth lawfully exercise, it must receive it from a supream power on earth, and practise it with such limitations as that superior power shall appoint. To return to our Author.

Page  257He divides Monarchy into

  • Absolute,
  • Limited.

Absolute Monarchy (saith he) is,*when the So∣vereignty is so fully in one, that it hath no limits or bounds under God but his own will. This definition of his I embrace. And as before I charged our Author for not giving us a definition of Monarchy in gene∣ral, so I now note him for not affording us any de∣finition of any other particular kind of Monarchy but only of absolute: it may peradventure make some doubt that there is no other sort but only that which he calls absolute.

Concerning absolute Monarchy, he grants, that such were the ancient Eastern Monarchies, and that of the Turk and Persian at this day. Herein he saith very true. And we must remember him, though he do not men∣tion them, that the Monarchs of Judah and Israel must be comprehended under the number of those he calls the Eastern Monarchies: and truly if he had said that all the ancient Monarchies of the World had been absolute, I should not have quarrel'd at him, nor do I know who could have disproved him.

Next it follows, that Absolute Monarchy is, when a people are absolutely resigned up, or resign up themselves to be governed by the will of One man. Where men put themselves into this utmost degree of subjection by oath and contract, or are born and brought unto it by Gods pro∣vidence. In both these places he acknowledgeth there may be other means of obtaining a Monarchy, be∣sides the contract of a Nation or peoples resigning up themselves to be governed, which is contrary to what he after says, that the sole mean or root of all Sovereignty,*is the consent and fundamen∣tal contract of a Nation of men.

Page  258Moreover, the Author determines, that Ab∣solute Monarchy is a lawful Government, and that men may be born and brought unto it by Gods providence; it binds them, and they must abide it, because an Oath to a lawful thing is obligatory. This Position of his I approve, but his Reason doth not satisfie: for men are bound to obey a lawful Governour, though neither they nor their Ancestors ever took oath.

Then he proceeds, and confesseth that in Rom. 13.*the power which then was, was Absolute: yet the Apostle not excluding it, calls it Gods ordinance, and commands Subjection to it. So Christ commands Tribute to be paid, and pays it himself; yet it was an arbitrary tax, the production of an absolute power. These are the loyal expressions of our Author touching absolute or arbitrary Monar∣chy. I do the rather mention these passages of our Author, because very many in these days do not stick to maintain, that an arbitrary or Absolute Monarch not limited by Law, is all one with a Tyrant; and to be governed by one man's will, is to be made a slave. It is a question whether our Author be not of that mind, when he saith, absolute subjection is servitude: and thereupon a late friend to limited Monarchy affirms in a discourse upon the question in debate be∣tween the King and Parliament,* That to make a King by the standard of Gods word, is to make the Subjects slaves for conscience sake. A hard saying, and I doubt whether he that gives this censure can be excused from blasphemy. It is a bold speech, to condemn all the Kings of Judah for Tyrants, or to say all their Subjects were slaves. But Page  259 certainly the man doth not know either what a Tyrant is, or what a Slave is: indeed the words are frequent enough in every mans mouth, and our old English Translation of the Bible useth sometimes the word Tyrant; but the Authors of our new Translation have been so careful, as not once to use the word, but only for the proper name of a man, Act. 19.9. because they find no Hebrew word in the Scripture to signifie a Tyrant or a Slave. Neither Aristotle, Bodin, nor Sir Walter Raleigh, (who were all men of deep judgment) can agree in a definition or description of Tyranny, though they have all three laboured in the point. And I make some question whether any man can possibly describe what a Tyrant is, and then tell me any one man that ever was in the World that was a Tyrant according to that description.

I return again to our Treatise of Monarchy, where I find three DEGREES of absolute Mo∣narchy.

  • 1. Where the Monarch, whose will is the Law, doth set himself no Law to rule by, but by commands of his own judgment as he thinks fit.
  • 2. When he sets a Law by which he will ordinarily govern, reserving to himself a liberty to vary from it as oft as in his discretion he thinks FIT; and in this the Soveraign is as free as the former.
  • 3. Where he not only sets a rule, but promiseth in many cases not to alter it; but this promise or en∣gagement is an after-condescent or act of grace, not dissolving the absolute Oath of Subjection which went before it.

For the first of these three, there is no question but it is a pure absolute Monarchy; but as for Page  260 the other two, though he say they be absolute, yet in regard they set themselves limits or Laws to govern by, if it please our Author to term them limited Mo∣narchs, I will not oppose him; yet I must tell him, that his third degree of absolute Monarchy is such a kind, as I believe, never hath been, nor ever can be in the world. For a Monarch to promise and engage in many cases not to alter a Law, it is most necessary that those many cases should be particular∣ly expressed at the bargain-making. Now he that understands the nature and condition of all humane Laws, knows that particular cases are infinite, and not comprehensible within any rules or Laws: and if many cases should be comprehended, and many omitted, yet even those that were comprehended would admit of variety of interpretations and dis∣putations; therefore our Author doth not, nor can tell us of any such reserved cases promised by any Monarch.

Again, where he saith, An after-condescent or Act of grace doth not dissolve the absolute Oath of subjection which went before it; though in this he speak true, yet still he seems to insinuate, that an Oath only binds to subjection, which Oath, as he would have us believe, was at first arbitrary: whereas Sub∣jects are bound to obey Monarchs though they never take oath of subjection, as well as children are bound to obey their Parents, though they never swear to do it.

Next, his distinction between the rule of power,*and the exercise of it, is vain; for to rule, is to exercise power: for himself saith, that Government is potestatis exercitium, the exer∣cise of a moral power.

Page  261Lastly, whereas our Author saith, a Monarch cannot break his promise without sin; let me add, that if the safety of the people, salus populi, re∣quire a breach of the Monarchs promise, then the sin, if there be any, is rather in the making, than breaking of the promise; the safety of the Peo∣ple is an exception implied in every Monarchical promise.

But it seems these three degrees of Monarchy do not satisfie our Author; he is not content to have a Monarch, have a Law or rule to go∣vern by,* but he must have this limitation or Law to be ab externo, from some body else, and not from the determination of the Monarchs own will; and therefore he saith, By original constitution the Society publick confers on one man a power by limited contract, resigning themselves to be governed by such a Law: also before he told us,*the sole means of Soveraignty is the consent and fundamental contract; which consent puts them in their power, which can be no more nor other than is con∣veyed to them by such contract of subjection. 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 fundamental contract, with original and radical constitution? why yea: he tells us it is a secondary original constitution; a secondary original, that is, a second first: And if that condescent be an act of grace, doth not this condescent to a limitation come from the free determination of the Mo∣narchs will? If he either formally, or virtually (as our Author supposeth) desert his absolute Page  262 or arbitrary power which he hath by conquest, or other right.

And if it be from the free will of the Monarch, why doth he say the limitation must be ab externo?* He told us before, that Subjection cannot be dissolved or lessen'd by an Act of grace coming afterwards: but he hath better bethought himself, and now he will have Acts of grace to be of two kinds, and the latter kind may amount (as he saith) to a resignation of absolute Monarchy. But can any man believe that a Monarch who by con∣quest or other right hath an absolute arbitrary power, will voluntarily resign that absoluteness, and accept so much power only as the People shall please to give him, and such Laws to govern by as they shall make choice of? can he shew that ever any Monarch was so gracious or kind-hearted as to lay down his lawful power freely at his Subjects feet? Is it not sufficient grace if such an absolute Monarch be content to set down a Law to himself by which he will ordinarily govern, but he must needs relinquish his old independent commission, and take a new one from his Subjects, clog'd with limitations?

Finally, I observe, that howsoever our Author speak big of the radical, fundamental, and original power of the People as the root of all Soveraignty: yet in a better mood he will take up, and be contented with a Monarchy limited by an after-condescent and act of grace from the Monarch himself.

Thus I have briefly touched his grounds of Limited Monarchy; if now we shall ask, what proof or examples he hath to justifie his Doctrine, Page  263 he is as mute as a fish: only Pythagoras hath said it, and we must believe him; for though our Author would have Monarchy to be limited, yet he could be content his opinion should be absolute, and not limited to any rule or example.

The main Charge I have against our Author now remains to be discussed; and it is this, That instead of a Treatise of Monarchy, he hath brought forth a Treatise of Anarchy, and that by his own confessi∣ons shall be made good.

First, he holds, A limited Monarch transcends his bounds, if he commands beyond the Law; and the Subject legally is not bound to subjection in such cases.

Now if you ask the Author who shall be Judge, whether the Monarch transcend his bounds, and of the excesses of the Soveraign Power; His answer is,*There is an impossibility of con∣stituting a Judge to determine this last Con∣troversie— I conceive in a limited legal Monarchy there can be no stated internal Judge of the Monarchs actions,*if there grow a fundamental variance between him and the Community. There can be no Judge legal and constituted within that form of Government. In these answers it appears, there is no Judge to determine the Soveraigns or the Monarchs transgressing his fundamental li∣mits: yet our Author is very cautelous, and sup∣poseth only a fundamental variance betwixt the Monarch and the Community; he is ashamed to put the question home. I demand of him if there be a variance betwixt the Monarch and any of the meanest persons of the Community, who shall be the Judge? For instance, The King commands me, Page  264 or gives judgment against me: I reply, His commands are illegal, and his judgment not according to Law: Who must judge? If the Monarch himself judge, then you destroy the frame of the State, and make it absolute, saith our Author; and he gives his reason: for, to confine a Monarch to a Law, and then to make him judge of his own deviaions from that Law, is to absolve him from all Law. On the other side, if any, or all the people may judge, then you put the Soveraignty in the whole body, or part of it, and destroy the being of Monarchy. Thus our Author hath caught him∣self in a plain Dilemma: If the King be Judge, then he is no limited Monarch; If the People be Judge, then he is no Monarch at all. So farewel limited Monarchy, nay farewel all Government, if there be no Judge.

Would you know what help our Author hath found out for this mischief? First, he saith, That a Subject is bound to yield to a Ma∣gistrate,*when he cannot, de jure, challenge obedience, if it be in a thing in which he can possibly without subversion, and in which his act may not be made a leading case, and so bring on a prescription against publick liberty.* Again he saith, If the act in which the exorbitance or trans∣gression of the Monarch is supposed to be, be of lesser moment, and not striking at the very being of that Government, it ought to be born by publick pa∣tience, rather than to endanger the being of the State. The like words he uses in another place,* saying, If the will of the Monarch exceed the limits of the Law, it ought to be submitted to, so it be not contrary to God's Law, nor bring with it such an evil to our selves, or the Page  265 publick, that we cannot be accessory to it by obeying. These are but fig-leaves to cover the nakedness of our Authors limited Monarch, formed upon weak supposals in cases of lesser moment. For if the Monarch be to govern only according to Law, no transgression of his can be of so small moment, if he break the bounds of Law, but it is a subver∣sion of the Government it self, and may be made a leading case, and so bring on a prescription against publick liberty; it strikes at the very being of the Government, and brings with it such an evil, as the party that suffers, or the publick can∣not be accessory to: let the case be never so small, yet if there be illegality in the act, it strikes at the very being of limited Monarchy, which is to be le∣gal: unless our Author will say, as in effect he doth, That his limited Monarch must govern according to Law in great and publick matters only, and that in smaller matters which concern private men, or poor persons, he may rule according to his own will.

Secondly, our Author tells us,*If the Mo∣narchs act of exorbitancy or transgression be mortal, and such as suffered dissolves the frame of Go∣vernment and publick liberty, then the illegality is to be set open, and redresment sought by petition; which if failing, prevention by resistance ought to be: and if it be apparent, and appeal be made to the consciences of mankind, then the fundamental Laws of that Monar∣chy must judge and pronounce the sentence in every mans conscience, and every man (so far as concerns him) must follow the evidence of Truth in his own soul to oppose or not to oppose, according as he can in conscience acquit or condemn the act of the Governour or Monarch.

Page  266Whereas my Author requires, that the destru∣ctive nature of illegal commands shall be set open: Surely his mind is, That each private man in his particular case should make a publick remonstrance to the World of the illegal act of the Monarch; and then if upon his Petition he cannot be relieved according to his desire, he ought, or it is his duty to make resistance. Here I would know, who can be the Judge whether the illegality be made apparent? It is a main point, since every man is prone to flatter himself in his own cause, and to think it good, and that the wrong or injustice he suffers is apparent, when other moderate and in∣different men can discover no such thing: and in this case the judgment of the common people cannot be gathered or known by any possible means; or if it could, it were like to be various and erroneous.

Yet our Author will have an Appeal made to the Conscience of all Mankind, and that being made, he concludes, The Fundamental Laws must judge, and pronounce Sentence in every mans Conscience. Whereas he saith,*The Fundamental Laws must judge; I would very gladly learn of him, or of any other for him, what a Fundamental Law is, or else have but any one Law named me that any man can say is a Fundamental Law of the Monarchy. I confess he tells us, That the Common Laws are the foundation,*and the Statute Laws are superstructive; yet I think he dares not say that there is any one branch or part of the Common Law, but that it may be taken away by an Act of Parliament: for many points of the Common Law (de facto) have, and (de jure)Page  267 any point may be taken away. How can that be called Fundamental, which hath and may be re∣moved, and yet the Statute-Laws stand firm and stable? It is contrary to the nature of Fundamen∣tal, for the building to stand when the foundation is taken away.

Besides, the Common Law is generally acknow∣ledged to be nothing else but common usage or custom, which by length of time only obtains authority: So that it follows in time after Govern∣ment, but cannot go before it, and be the rule to Government, by any original or radical Con∣stitution.

Also the Common Law being unwritten, doubt∣ful, and difficult, cannot but be an uncertain rule to govern by; which is against the nature of a Rule, which is and ought to be certain.

Lastly, by making the Common Law only to be the foundation, Magna Charta is excluded from be∣ing a Fundamental Law, and also all other Statutes from being limitations to Monarchy, since the Fun∣damental Laws only are to be Judge.

Truly the Conscience of all mankind is a pretty large Tribunal for the Fundamental Laws to pro∣nounce Sentence in. It is very much that Laws which in their own nature are dumb, and always need a Judge to pronounce Sentence, should now be able to speak, and pronounce Sentence them∣selves: Such a Sentence surely must be upon the hearing of one party only; for it is impossible for a Monarch to make his defence and answer, and produce his Witnesses, in every mans consci∣ence, in each mans Cause, who will but question the legality of the Monarchs Government. Cer∣tainly Page  268 the sentence cannot but be unjust, where but one mans tale is heard. For all this, the con∣clusion is, Every man must oppose or not oppose the Monarch according to his own conscience. Thus at the last, every man is brought, by this Doctrine of our Authors, to be his own Judge. And I also appeal to the consciences of all mankind, whe∣ther the end of this be not utter confusion, and Anarchy.

Yet after all this, the Author saith, This power of every mans judging the illegal acts of the Monarch,*argues not a Superiority of those who judge over him who is judged; and he gives a pro∣found reason for it: his words are, It is not autho∣ritative and civil, but moral, residing in reasonable creatures, and lawful for them to execute. What our Author means by these words, (not authoritative and civil, but moral) perhaps I understand not, though I think I do; yet it serves my turn that he saith, That resistance ought to be made, and every man must oppose or not oppose, according as in conscience he can ac∣quit or condemn the acts of his Governour; for if it en∣able a man to resist and oppose his Governour, with∣out question, 'tis authoritative and civil. Whereas he adds, That moral judgment is residing in reasonable creatures, and lawful for them to execute; he seems to imply, that authoritative and civil Judgment doth not reside in reasonable creatures, nor can be lawfully executed. Such a Conclusion fits well with Anarchy; for he that takes away all Government, and leaves every man to his own conscience, and so makes him an independent in State, may well teach that authority resides not in reasonable creatures, nor can be lawfully executed.

Page  269I pass from his absolute and limited Monarchy, to his division or partition (for he allows no divi∣sion) of Monarchy into simple and mixed, viz. of a Monarch, the Nobility, and Community.

Where first, observe a doubt of our Au∣thors,*Whether a firm union can be in a mixture of equality; he rather thinks there must be a pri∣ority of order in one of the three, or else there can be no unity. He must know, that priority of order doth not hinder, but that there may be an equality of mixture, if the shares be equal; for he that hath the first share may have no more than the others: so that if he will have an inequality of mixture, a primity of share will not serve the turn: the first share must be greater or better than the others, or else they will be equal, and then he cannot call it a mixed Monarchy, where only a primity of share in the supreme Power is in one: but by his own con∣fession he may better call it a mixed Aristocracy or mixed Democracy, than a mixed Monar∣chy, since he tells us,*The Houses of Parlia∣ment sure have two parts of the greatest legisla∣tive Authority; and if the King have but a third part, sure their shares are equal.

The first step our Author makes, is this, The Soveraign power must be originally in all three; next he finds, that if there be an equality of shares in three Estates, there can be no ground to denominate a Monarch; and then his mixed Monarch might be thought but an empty Title: Therefore in the third place he resolves us, That to salve all,*a power must be sought out wherewith the Mo∣narch must be invested, which is not so great as to destroy the mixture, nor so titular as to destroy the Page  270 Monarchy; and therefore he conceives it may be in these particulars.

*First, A Monarch in a mixed Monarchy may be said to be a Monarch (as he con∣ceives) if he be the head and fountain of the power which governs and executes the established Laws; that is, a man may be a Monarch, though he do but give power to others to govern and execute the established Laws: thus he brings his Monarch one step or peg lower still than he was before: at first he made us believe his Monarch should have the supreme Power, which is the legislative; then he falls from that, and tells us, A limited Monarch must govern according to Law only; thus he is brought from the legislative to the gubernative or executive Power only; nor doth he stay here, but is taken a hole lower, for now he must not govern, but he must constitute Officers to govern by Laws; if chusing Officers to govern be governing, then our Author will allow his Monarch to be a Governour, not else: and therefore he that divi∣ded Supreme power into Legislative and Gubernative, doth now divide it into Legislative, and power of constituting Officers for governing by Laws; and this, he saith, is left to the Monarch. Indeed you have left him a fair portion of Power; but are we sure he may enjoy this? It seems our Author is not confident in this neither, and some others do deny it him: our Author speaking of the Government of this Kingdom,* saith, The choice of the Officers is intrusted to the judg∣ment of the Monarch for ought I know: he is not resolute in the point; but for ought he knows, and for ought I know, his Monarch is Page  271 but titular, an empty Title, certain of no Power at all.

The power of chusing Officers only, is the basest of all powers. Aristotle (as I remember) saith, The common people are fit for nothing but to chuse Officers, and to take Accompts: and indeed, in all popular Go∣vernments the multitude perform this work: and this work in a King puts him below all his Subjects, and makes him the only Subject in a Kingdom, or the only man that cannot Govern: there is not the poorest man of the multitude but is capable of some Office or other, and by that means may some time or other perhaps govern according to the Laws; only the King can be no Officer, but to chuse Officers; his Subjects may all govern, but he may not.

Next, I cannot see how in true sense our Author can say, his Monarch is the head and fountain of Power, since his Doctrine is, That in a limited Mo∣narchy, the publick Society by original Constitution con∣fer on one man power: is not then the publick So∣ciety the head and fountain of Power, and not the King?

Again, when he tells us of his Monarch, That both the other States, as well conjunctim as divisim, be his sworn Subjects, and owe obedience to his commands: he doth but flout his poor Monarch; for why are they called his Subjects and his Commons? He (without any complement) is their Subject; for they, as Officers, may govern and command ac∣cording to Law: but he may not, for he must judge by his Judges in Courts of Justice only: that is, he may not judge or govern at all.

Page  2722. As for the second particular, The sole or chief power in capacitating persons for the supreme Power. And

3. As to this third particular, The power of Con∣vocating such persons, they are both so far from ma∣king a Monarch, that they are the only way to make him none, by chusing and calling others to share in the supreme Power.

4. Lastly, concerning his Authority being the last and greatest in the establishing every Act, it makes him no Monarch, except he be sole that hath that Au∣thority; neither his primity of share in the supreme Power, nor his Authority being last, no, nor his having the greatest Authority, doth make him a Monarch, unless he have that Authority alone.

Besides, how can he shew that in his mixed Mo∣narchy the Monarchs power is the greatest? The greatest share that our Author allows him in the Le∣gislative power, is a Negative voice, and the like is allowed to the Nobility and Commons: And truly, a Negative voice is but a base term to express a Le∣gislative power; a Negative voice is but a privative power, or indeed, no power at all to do any thing, only a power to hinder an Act from being done.

Wherefore I conclude, not any of his four,* nor all of them put into one person, make the State Monarchical.

This mixed Monarchy, just like the limited, ends in confusion and destruction of all Government: you shall hear the Authors confession, That one inconvenience must necessarily be in all mix∣ed Governments,*which I shewed to be in limit∣ed Governments; there can be no constituted legal Au∣thoritative Judge of the Fundamental Controversies arising between the three Estates: If such do rise, it is Page  273 the fatal disease of those Governments, for which no salve can be applied. It is a case beyond the possible provision of such a Government; of this question there is no legal Judge. The accusing side must make it evident to every mans Conscience.— The Appeal must be to the Community, as if there were no Govern∣ment; and as by evidence Consciences are convinced, they are bound to give their assistance. The wit of man cannot say more for Anarchy.

Thus have I picked out the flowers out of his Doctrine about limited Monarchy, and presented them with some brief Annotations; it were a te∣dious work to collect all the learned contradictions, and ambiguous expressions that occur in every page of his Platonick Monarchy; the Book hath so much of fancy, that it is a better piece of Poetry than Policy.

Because many may think, that the main Do∣ctrine of limited and mixed Monarchy may in it self be most authentical, and grounded upon strong and evident reason, although our Author perhaps have failed in some of his expressions, and be liable to exceptions: Therefore I will be bold to inquire, whether Aristotle could find either reason or exam∣ple of a limited or mixed Monarchy; and the ra∣ther, because I find our Author altogether insists upon a rational way of justifying his opinion. No man I think will deny, but that Aristotle was suffi∣ciently curious in searching out the several forms of Commonwealths and Kingdoms; yet I do not find, that he ever so much as dreamed of either a limited or mixed Monarchy. Several other sorts of Monarchies he reckons up: in the Third Book of his Politicks, he spends three whole Chapters Page  274 together, upon the several kinds of Monarchy.

First, in his fourteenth Chapter he mentions four kinds of Monarchy.

  • The Laconick or Lacedemonian.
  • The Barbarick.
  • The Aesymnetical.
  • The Heroick.

The Laconick or Lacedemonian King (saith he) had only Supreme Power when he was out of the bounds of the Lacedemonian Territories; then he had absolute Power, his Kingdom was like to a perpetual Lord Gene∣ral of an Army.

The Barbarick King (saith Aristotle) had a Power very near to Tyranny; yet they were lawful and Pater∣nal, because the Barbarians are of a more servile nature than the Grecians, and the Asiaticks than the Euro∣peans; they do willingly, without repining, live under a Masterly Government; yet their Government is stable and safe, because they are Paternal and lawful King∣doms, and their Guards are Royal and not Tyrannical: for Kings are guarded by their own Subjects, and Ty∣rants are guarded by Strangers.

The Aesymnetical King (saith Aristotle) in old time in Greece, was an Elective Tyrant, and differed only from the Barbarian Kings, in that he was Elective, and not Paternal: these sorts of Kings, because they were Tyrannical, were Masterly; but because they were over such as voluntarily Elected them, they were Regal.

The Heroick were those (saith Aristotle) which flou∣rished in the Heroical times, to whom the People did willingly obey; and they were Paternal and lawful, be∣cause these Kings did deserve well of the multitude, either Page  275 by teaching them Arts, or by Warring for them, or by gathering them together when they were dispersed, or by dividing Lands amongst them: these Kings had supreme Power in War, in Sacrifices, in Judicature.

These four sorts of Monarchy hath Aristotle thus distinguished, and after sums them up together, and concludes his Chapter as if he had forgot himself, and reckons up a fifth kind of Monarchy; which is, saith he, When one alone hath Supreme power of all the rest: for as there is a domestical Kingdom of one House, so the Kingdom of a City, or of one or many Nations, is a Family.

These are all the sorts of Monarchy that Aristotle hath found out, and he hath strained hard to make them so many: first, for his Lacedemonian King, himself confesseth that he was but a kind of Military Commander in War, and so in effect no more a King than all Generals of Armies: And yet this No-king of his was not limited by any Law, nor mixed with any Companions of his Government: when he was in the Wars out of the Confines of La∣cedaemon, he was, as Aristotle stiles him, 〈 in non-Latin alphabet 〉, of full and absolute Command, no Law, no Com∣panion to govern his Army but his own will.

Next, for Aristotle's Aesymnetical King, it ap∣pears, he was out of date in Aristotle's time; for he saith, he was amongst the ancient Greeks 〈 in non-Latin alphabet 〉. Aristotle might well have spared the naming him (if he had not wanted other sorts) for the ho∣nour of his own Nation: for he that but now told us the Barbarians were of a more servile nature than the Grecians, comes here, and tells us, That these old Greek Kings were Elective Tyrants. The Bar∣barians did but suffer Tyrants in shew, but the old Page  276Grecians chose Tyrants indeed; which then must we think were the greater slaves, the Greeks or the Barbarians? Now if these sorts of Kings were Ty∣rants, we cannot suppose they were limited either by Law, or joyned with Companions: Indeed Ari∣stotle saith, some of these Tyrants were limited to certain times and actions, for they had not all their Power for term of life, nor could meddle but in certain businesses; yet during the time they were Tyrants, and in the actions whereto they were li∣mited, they had absolute Power to do what they list according to their own will, or else they could not have been said to be Tyrants.

As for Aristotle's Heroick King, he gives the like note upon him, that he did upon the Aesymnet, that he was in old time 〈 in non-Latin alphabet 〉, in the He∣roick times. The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms, was only the means by which the first Kings obtained their Kingdoms, and not the manner of Govern∣ment, for in that they were as absolute as other Kings were, without either limitation by Law, or mixture of Companions.

Lastly, as for Aristotle's Barbarick sort of Kings, since he reckoned all the World Barbarians, except the Grecians, his Barbarick King must extend to all other sorts of Kings in the World, besides those of Greece, and so may go under Aristotle's fifth sort of Kings, which in general comprehends all other sorts, and is no special form of Monarchy.

Thus upon a true account it is evident, that the five several sorts of Kings mentioned by Aristotle, are at the most but different and accidental means of the first obtaining or holding of Monarchies, Page  277 and not real or essential differences of the manner of Government, which was always absolute, without either limitation or mixture.

I may be thought perhaps to mistake, or wrong Aristotle, in questioning his diversities of Kings; but it seems Aristotle himself was partly of the same mind; for in the very next Chapter, when he had better considered of the point, he confessed, That to speak the truth, there were almost but two sorts of Monarchies worth the considering, that is, his first or Laconick sort, and his fifth or last sort, where one alone hath supreme Power over all the rest: thus he hath brought his five sorts to two. Now for the first of these two, his Lacedemonian King, he hath confessed before, that he was no more than a Genera∣lissimo of an Army, and so upon the matter no King at all: and then there remains only his last sort of Kings, where one alone hath the supreme Power. And this in substance is the final resolution of Aristotle himself: for in his sixteenth Chapter, where he delivers his last thoughts touching the kinds of Mo∣narchy, he first dischargeth his Laconick King from being any sort of Monarchy, and then gives us two exact rules about Monarchy; and both these are point blank against limited and mixed Monarchy; therefore I shall propose them to be considered of, as concluding all Monarchy to be absolute and ar∣bitrary.

1. The one Rule is,* That he that is said to be a King according to Law, is no sort of Government or Kingdom at all:〈 in non-Latin alphabet 〉.

2. The second Rule is, That a true King is he that ruled all according to his own will,〈 in non-Latin alphabet 〉.

Page  278This latter frees a Monarch from the mixture of partners or sharers in Government, as the former rule doth from limitation by Laws.

Thus in brief I have traced Aristotle in his crab∣bed and broken passages, touching diversities of Kings; where he first finds but four sorts, and then he stumbles upon a fifth; and in the next Chapter contents himself only with two sorts of Kings, but in the Chapter following concludes with one, which is the true perfect Monarch, who rules all by his own will: in all this we find nothing for a regulated or mixed Monarchy, but against it.

Moreover, whereas the Author of the Treatise of Monarchy affirms it as a prime Principle, That all Monarchies (except that of the Jews) depend upon humane designment, when the consent of a Society of men, and a fundamental Contract of a Nation, by original or radical Constitution confers Power: he must know, that Aristotle searching into the Original of Government, shews himself in this point a better Divine than our Author; and as if he had studied the Book of Genesis, teacheth, That Monarchies fetch their Pedigree from the Right of Fathers, and not from the Gift or Contract of People; his words may thus be Englished. At the first, Cities were governed by Kings, and so even to this day are Nations also: for such as were under Kingly Government did come together; for every House is governed by a King, who is the eldest; and so also Colonies are governed for kindred sake. And immediately before, he tells us, That the first Society made of many Houses is a Village, which naturally seems to be a Colony of a House, which some call Foster-brethren, or Children, and Chil∣drens Children.

Page  279So in conclusion we have gained Aristotle's judg∣ment in three main and essential points.

  • 1. A King according to Law makes no kind of Go∣vernment.
  • 2. A King must rule according to his own will.
  • 3. The Original of Kings, is from the right of Father∣hood.

What Aristotle's judgment was two thousand years since, is agreeable to the Doctrine of the great modern Politician Bodin: Hear him touching limi∣ted Monarchy: Ʋnto Majesty or Soveraignty (saith he) belongeth an absolute power, not subject to any Law—Chief power given unto a Prince with condition, is not properly Soveraignty, or power absolute, except such conditions annexed to the Soveraignty, be directly com∣prehended within the Laws of God and Nature.— Albeit by the sufferance of the King of England, con∣troversies between the King and his People are sometimes determined by the high Court of Parliament, and some∣times by the Lord Chief Justice of England; yet all the Estates remain in full subjection to the King, who is no ways bound to follow their advice, neither to consent to their requests.—It is certain, that the Laws, Priviledges, and Grants of Princes, have no force but during their life, if they be not ratified by the express consent, or by sufferance of the Prince following, especially Privile∣ges.— Much less should a Prince be bound unto the Laws he maketh himself; for a man may well receive a Law from another man, but impossible it is in nature for to give a Law unto himself, no more than it is to com∣mand a mans self in a matter depending of his own will. The Law saith, Nulla obligatio consistere potest, quae à voluntate promittentis statum capit. The Soveraign Prince may derogate unto the Laws that he hath promi∣sed Page  280 and sworn to keep, if the equity thereof be ceased; and that of himself, without the consent of his Sub∣jects.—The Majesty of a true Soveraign Prince is to be known, when the Estates of all the People assembled, in all humility present their requests and supplications to their Prince, without having power in any thing, to command, determine, or give voice, but that that which it pleaseth the King to like or dislike, to command or bid, is holden for Law: wherein they which have written of the duty of Magistrates have deceived themselves, in maintaining that the power of the People is greater than the Prince; a thing which causeth oft true Subjects to revolt from their obedience to their Prince, and mini∣streth matter of great troubles in Commonwealths; of which their opinion there is neither reason nor ground: for if the King be subject unto the assemblies and Decrees of the people, he should neither be King nor Soveraign, and the Commonwealth neither Realm nor Monarchy, but a meer Aristocracy.—So we see the principal point of Soveraign Majesty, and absolute power, to consist princi∣pally in giving Laws unto the Subjects in general without their consent. Bodin de Rep. l. 1. c. 8.

To confound the state of Monarchy with the Popular or Aristocratical estate, is a thing impossible, and in effect incompatible, and such as cannot be imagined: for Sove∣raignty being of it self indivisible, how can it at one and the same time be divided betwixt one Prince, the Nobi∣lity, and the people in common? The first mark of So∣veraign Majesty, is to be of power to give Laws, and to command over them unto the Subjects; and who should those Subjects be that should yield their obedience to the Law, if they should have also power to make the Laws? who should he be that could give the Law? being himself constrained to receive it of them, unto whom himself gave Page  281 it? so that of necessity we must conclude, That as no one in particular hath the power to make the Law in such a State, that then the State must needs be a State popu∣lar.—Never any Commonwealth hath been made of an Aristocracy and popular Estate, much less of the three Estates of a Commonweal.—Such states wherein the rights of Soveraignty are divided, are not rightly to be called Commonweals, but rather the corruption of Com∣monweals, as Herodotus has most briefly but truly writ∣ten.—Commonweals which change their state, the So∣vereign right & power of them being divided, find no rest from Civil wars and broils, till they again recover some one of the three Forms, and the Soveraignty be wholly in one of the states or other. Where the rights of the So∣veraignty are divided betwixt the Prince & his Subjects, in that confusion of state there is still endless stirs and quarrels for the superiority, until that some one, some few, or all together, have got the Soveraignty. Id. lib. 2. c. 1.

This Judgment of Bodin's touching Limited and Mixed Monarchy, is not according to the mind of our Author, nor yet of the Observator, who useth the strength of his Wit to overthrow Absolute and Ar∣bitrary Government in this Kingdom; and yet in the main body of his discourse, lets fall such Truths from his Pen, as give a deadly wound to the Cause he pleads for, if they be indifferently weighed and considered. I will not pick a line or two here and there to wrest against him, but will present a whole Page of his Book, or more together, that so we may have an entire prospect upon the Observators mind: Without Society (saith the Observator) men could not live; without Laws men could not be sociable; and with∣out Authority somewhere to judge according to Law, Law Page  282 were vain: It was soon therefore provided, that Laws according to the dictate of Reason, should be ratified by common consent; when it afterward appeared, that man was yet subject to unnatural destruction, by the Tyranny of entrusted Magistrates, a mischief almost as fatal as to be without all Magistracy. How to provide a wholesome remedy therefore, was not so easie to be invented: it was not difficult to invent Laws for the limiting of Supream Governours; but to invent how those Laws should be ex∣ecuted, or by whom interpreted, was almost impossible, Nam quis custodiet ipsos Custodes? to place a Superiour a∣bove a Supream, was held unnatural; yet what a lifeless thing would Law be without any Judge to determine and force it? If it be agreed upon, that limits should be pre∣fixed to Princes and Judges to decree according to those limits, yet another inconvenience will presently affront us: for we cannot restrain Princes too far, but we shall disable them from some good: long it was ere the world could extricate it self out of all these extremities, or find out an orderly means whereby to avoid the danger of unbounded Prerogative on this hand, and of excessive li∣berty on the other; and scarce has long experience yet fully satisfied the minds of all men in it. In the Infancy of the world, when man was not so artificial and obdurate in cruelty and oppression as now, and Policy most rude, most Nations did choose rather to subject themselves to the meer discretion of their Lords, than rely upon any li∣mits; and so be ruled by Arbitrary Edicts, than written Statutes. But since Tyranny being more exquisite, and Policy more perfect, especially where learning and Religion flourish, few Nations will endure the thraldome which usually accompanies unbounded and unconditionate Roy∣alty; Yet long it was ere the bounds and conditions of Supream Lords was so wisely determined, or quietly con∣served Page  283 as now they are: for at first, when as Ephori, Tribuni, Curatores, &c. were erected to poise against the scale of Soveraignty, much blood was shed about them, and States were put into new broils by them, and in some places the remedy proved worse than the disease. In all great distresses, the body of the people were ever constrai∣ned to rise, and by force of the major party to put an end to all intestine strifes, and make a redress of all publick grievances: But many times calamities grew to a strange height, before so cumbersome a body could be raised; and when it was raised, the motions of it were so distracted and irregular, that after much spoil and effusion of blood, sometimes only one Tyranny was exchanged for another, till some was invented to regulate the motions of the Peo∣ples moliminous body. I think Arbitrary rule was most safe for the World: but Now, since most Countries have found an art and peaceable order for publick Assemblies, whereby the people may assume its own power to do it self right, without disturbance to it self or injury to Princes; he is very unjust that will oppose this art or order. That Princes may not be Now beyond all limits and Laws, nor yet be tyed upon those limits by any private parties; the whole Community, in its underived Majesty, shall convene to do justice; and that the Convention may not be with∣out intelligence, certain times, and places, and forms, shall be appointed for its reglement; and that the vastness of its own bulk may not breed confusion, by vertue of election and representation, a few shall act for many, the wise, shall consent for the simple, the vertue of all shall redound to some, and the prudence of some shall redound to all; and surely as this admirably-composed Court, which is now cal∣led a Parliament, is more regularly and orderly formed, than when it was called mickle Synod of Wittena∣gemot, or when this real body of the People did throng Page  284 together at it: so it is not yet perhaps without some de∣fects, which by art & policy might receive farther amend∣ment: some divisions have sprung up of late between both Houses, and some between the King and both Houses, by reason of incertainty of Jurisdiction; and some Lawyers doubt how far the Parliament is able to create new forms and presidents, and has a Jurisdiction over it self; all these doubts would be solemnly solved: but in the first place, the true priviledges of Parliament belonging not only to the being and efficacy of it, but to the honour and complement of it, would be clearly declared: for the very naming of priviledges of Parliament, as if they were chimera's to the ignorant sort, and utterly unknown unto the Learned, hath been entertained with scorn since the beginning of this Parliament.

In this large passage taken out of the Observator which concerns the original of all Government, two notable Propositions may be principally observed.

First, our Observator confesseth arbitrary or absolute government to be the first, and the safest government for the world.

Secondly, he acknowledgeth that the Jurisdiction is uncertain, and the priviledges not clearly declared of li∣mited Monarchy.

These two evident truths delivered by him, he la∣bours mainly to disguise. He seems to insinuate that Arbitrary Government was but in the infancy of the World, for so he terms it; but if we enquire of him, how long he will have this infancy of the World to last, he grants it continued above three thousand years, which is an unreasonable time for the World to continue under-age: for the first opposers he doth find of Arbitrary power, were the Ephori, Tribuni, Curatores, &c. The Ephori were above three thou∣sand Page  285 years after the Creation, and the Tribuni were later; as for his Curatores, I know not whom he means, except the Master of the Court of Wards, I cannot English the word Curator better. I do not believe that he can shew that any Curatores or & cae∣tera's which he mentions were so ancient as the E∣phori. As for the Tribuni, he mistakes much if he thinks they were erected to limit and bound Mo∣narchy; for the State of Rome was at the least Aristo∣cratical (as they call it) if not popular, when Tribunes of the People were first hatched. And for the Ephori, their power did not limit or regulate Monarchy, but quite take it away; for a Lacedemonian King in the judgment of Aristotle was no King indeed, but in name only, as Generalissimo of an Army; and the best Poli∣ticians reckon the Spartan Commonwealth to have been Aristocratical, and not Monarchical; and if a limited Monarchy cannot be found in Lacedemon, I doubt our Observator will hardly find it any where else in the whole World; and in substance he con∣fesseth as much, when he saith, Now most Countries have found out an art and peaceable order for publick as∣semblies; as if it were a thing but new done, and not before; for so the word Now doth import.

The Observator in confessing the Jurisdiction to be in∣certain, and the priviledges undetermined of that Court that should bound and limit Monarchy, doth in effect ac∣knowledge there is no such Court at all: for every Court consists of Jurisdictions & Priviledges▪ it is these two that create a Court, and are the essentials of it: If the admirably composed Court of Parliament have some defects which may receive amendment, as he saith, and if those defects be such as cause divisions both between the Houses, and between the King and both Houses, and these Page  286 divisions be about so main a matter as Jurisdictions and Priviledges, and power to create new Priviledges, all which are the Fundamentals of every Court, (for until they be agreed upon, the act of every Court may not only be uncertain, but invalid, and cause of tumults and sedition:) And if all these doubts and di∣visions have need to be solemnly solved, as our Observa∣tor confesseth: Then he hath no reason at all to say, that Now the conditions of Supream Lords are wisely determined and quietly conserved, or that Now most Countries have found out an art, and peaceable order for publick affairs, whereby the People may resume its own power to do it self right without injury unto Princes: for how can the underived Majesty of the people by assuming its own power, tell how to do her self right, or how to avoid doing injury to the Prince, if her Jurisdiction be uncertain, and Priviledges undetermined?

He tells us Now most Countries have found an art, and peaceable order for publick Assemblies: and to the intent that Princes may not be Now beyond all limits and Laws, the whole community in its underived Majesty shall convene to do Justice. But he doth not name so much as one Country or Kingdom that hath found out this art, where the whole Community in its un∣derived Majesty did ever convene to do Justice. I challenge him, or any other for him, to name but one Kingdom that hath either Now or heretofore found out this art or peaceable order. We do hear a great rumor in this age, of moderated and limited Kings; Poland, Sweden, and Denmark, are talked of for such; and in these Kingdoms, or no where, is such a moderated Government, as our Observator means, to be found. A little enquiry would be made into the manner of the Government of these King∣doms: Page  287 for these Northern People, as Bodin obser∣veth, breath after liberty.

First for Poland, Boterus saith, that the Government of it is elective altogether, and representeth rather an Aristocracie than a Kingdom: the Nobility, who have great Authority in the Diets, chusing the King, and li∣miting his Authority, making his Soveraignty but a sla∣vish Royalty: these diminutions of Regality began first by default of King Lewis, and Jagello, who to gain the succession in the Kingdom contrary to the Laws, one for his Daughter, and the other for his Son, departed with many of his Royalties and Prerogatives, to buy the voices of the Nobility. The French Author of the Book called the Estates of the World, doth inform us that the Princes Authority was more free, not being subject to any Laws, and having absolute power, not only of their estates, but also of Life and Death. Since Christian Religion was received, it began to be moderated, first by holy admonitions of the Bishops and Clergy, and then by services of the Nobility in War: Religious Princes gave many Honours, and many liberties to the Clergy and No∣bility, and quit much of their Rights, the which their suc∣cessors have continued. The superiour dignity is reduced to two degrees, that is, the Palatinate and the Chastel∣leine, for that Kings in former times did by little and little call these men to publick consultations, notwithstan∣ding that they had Absolute power to do all things of themselves, to command, dispose, recompence, and punish, of their own motions: since they have ordained that these Dignities should make the body of a Senate, the King doth not challenge much right and power over his Nobility, nor over their estates, neither hath he any over the Clergy. And though the Kings Authority depends on the Nobility for his election, yet in many things it is Absolute after he Page  288 is chosen: He appoints the Diets at what time and place he pleaseth; he chooseth Lay-Councellers, and nominates the Bishops, and whom he will have to be his Privy Coun∣cil: He is absolute disposer of the Revenues of the Crown: He is absolute establisher of the Decrees of the Diets: It is in his power to advance and reward whom he plea∣seth. He is Lord immediate of his Subjects, but not of his Nobility: He is Soveraign Judge of his Nobility in criminal causes. The power of the Nobility daily increa∣seth, for that in respect of the Kings election, they neither have Law, rule, nor form to do it, neither by writing nor tradition. As the King governs his Subjects which are immediately his, with absolute Authority; so the No∣bility dispose immediately of their vassals, over whom every one hath more than a Regal power, so as they intreat them like slaves. There be certain men in Poland who are called EARTHLY MESSENGERS or Nun∣tio's, they are as it were Agents of Jurisdictions or Cir∣cles of the Nobility: these have a certain Authority, and, as Boterus saith, in the time of their Diets these men assemble in a place near to the Senate-House, where they chuse two Marshals, by whom (but with a Tribune-like authority) they signifie unto the Council what their re∣quests are. Not long since, their Authority and reputa∣tion grew so mightily, that they now carry themselves as Heads and Governours, rather than officers and ministers of the publick decrees of the State: One of the Council refused his Senators place, to become one of these Officers. Every Palatine, the King requiring it, calls together all the Nobility of his Palatinate; where having propoun∣ded unto them the matters whereon they are to treat, and their will being known, they chuse four or six out of the company of the EARTHLY MESSENGERS; these Deputies meet and make one body, which they call the order of Knights.

Page  289This being of late years the manner and order of the government of Poland, it is not possible for the Observator to find among them that the whole Com∣munity in its underived Majesty doth ever convene to do Justice: nor any election or representation of the Community, or that the People assume its own power to do it self right. The EARTHLY MESSENGERS, though they may be thought to represent the Commons, and of late take much upon them, yet they are elected and chosen by the Nobility, as their agents and officers. The Com∣munity are either vassals to the King, or to the Nobility, and enjoy as little freedom or liberty as any Nation. But it may be said perhaps, that though the Community do not limit the King, yet the Nobility do, and so he is a limited Monarch. The Answer is, that in truth, though the Nobility at the chusing of their King do limit his power, and do give him an Oath; yet afterwards they have al∣ways a desire to please him, and to second his will; and this they are forced to do, to avoid discord: for by reason of their great power, they are subject to great dissentions, not only among themselves, but between them and the order of Knights, which are the Earthly Messengers: yea, the Provinces are at discord one with another: and as for Religion, the diversity of Sects in Poland breed perpetual jars and hatred among the People, there being as many Sects as in Amsterdam it self, or any popular government can desire. The danger of sedition is the cause, that though the Crown depends on the election of the Nobility; yet they have never rejected the Kings successour, or transferred the Realm to any other fa∣mily, but once, when deposing Ladislaus for his Page  290 idleness (whom yet afterward they restored) they elected Wenceslaus King of Bohemia. But if the Nobi∣lity do agree to hold their King to his conditions, which is, not to conclude any thing but by the advice of his Council of Nobles, nor to choose any Wife without their leaves, then it must be said to be a Commonweal, not a Royalty; and the King but only the mouth of the Kingdom, or as Queen Chri∣stina complained, that Her Husband was but the sha∣dow of a Soveraign.

Next, if it be considered how the Nobility of Po∣land came to this great power; it was not by any original contract, or popular convention: for it is said they have neither Law, Rule, nor Form written or un∣written, for the election of their King, they may thank the Bishops and Clergy: for by their holy admoni∣tions and advice, good and Religious Princes, to shew their piety, were first brought to give much of their Rights and Priviledges to their Subjects, devout Kings were meerly cheated of some of their Royalties. What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Counselling, they were first beholding to the Popish Clergy for it: it is they first brought Parliaments into request and power: I cannot find in any Kingdom, but only where Popery hath been, that Parliaments have been of reputation: and in the greatest times of Superstition they are first mentioned.

As for the Kingdom of Denmark, I read that the Senators, who are all chosen out of the Nobility, and seldom exceed the number of 28, with the chief of the Realm, do chuse their King. They have al∣ways in a manner set the Kings eldest Son upon the Page  291 Royal Throne. The Nobility of Denmark with∣stood the Coronation of Frederick 1559, till he sware not to put any Noble-man to death until he were judged of the Senate; and that all Noble-men should have power of Life and Death over their Sub∣jects without appeal; and the King to give no Office without consent of the Council. There is a Chancellour of the Realm, before whom they do ap∣peal from all the Provinces and Islands, and from him to the King himself. I hear of nothing in this Kingdom that tends to Popularity; no Assembly of the Commons, no elections, or representation of them.

Sweden is governed by a King heretofore elective, but now made hereditary in Gustavus time: it is divided into Provinces: an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen; from the Lamens, to the Kings Council; and from this Council, to the King himself.

Now let the Observator bethink himself, whether all, or any of these three Countries have found out any art at all whereby the People or community may assume its own Power: if neither of these King∣doms have, most Countries have not, nay none have. The People or Community in these three Realms are as absolute Vassals as any in the World; the regulating power, if any be, is in the Nobi∣lity: Nor is it such in the Nobility as it makes shew for. The Election of Kings is rather a For∣mality, than any real power: for they dare hard∣ly chuse any but the Heir, or one of the blood Roy∣al: if they should chuse one among the Nobility, it would prove very factious; if a stranger, odi∣ous, neither safe. For the Government, though Page  292 the Kings be sworn to raign according to the Laws, and are not to do any thing without the consent of their Council in publick affairs: yet in regard they have power both to advance and reward whom they please, the Nobility and Senators do comply with their Kings. And Boterus concludes of the Kings of Poland, who seem to be most moderated, that such as is their valour, dexterity, and wisdom, such is their Power, Authority, and Government. Also Bodin saith, that these three Kingdoms are States changeable and uncertain, as the Nobility is stronger than the Prince, or the Prince than the Nobility; and the Peo∣ple are so far from liberty, that he saith, Divers par∣ticular Lords exact not only Customs, but Tributes also; which are confirmed and grow stronger, both by long pre∣scription of time, and use of Judgments.

THE END.
Page  [unnumbered]

THE POWER OF KINGS: And in Particular, OF THE KING OF ENGLAND.

Page  [unnumbered] Page  293

THE POWER OF KINGS: And in Particular, Of the KING of ENGLAND.

TO Majestie or Soveraignty belongeth an Ab∣solute Power not subject to any Law. It be∣hoveth him that is a Soveraign, not to be in any sort Subject to the Command of An∣other; whose Office is to give Laws unto his Sub∣jects, to Abrogate Laws unprofitable, and in their stead to Establish other; which he cannot do, that is himself Subject to Laws, or to Others which have Command over him: And this is that which the Law saith, that The Prince is acquitted from the Power of the Laws.

Page  294The Laws, Ordinances, Letters-Patents, Privi∣ledges, and Grants of Princes, have no force but du∣ring their Life; if they be not ratified by the express Consent, or at least by Sufferance of the Prince fol∣lowing, who had knowledge thereof.

If the Soveraign Prince be exempted from the Laws of his Predecessors, much less shall he be bound unto the Laws he maketh Himself; for a man may well receive a Law from Another man, but impossible it is in Nature for to give a Law unto Himself, no more than it is to Command a man's self in a matter depending of his Own Will: There can be no Obliga∣tion which taketh State from the meer Will of him that promiseth the same; which is a necessary Reason to prove evidently, that a King cannot bind his Own Hands, albeit that he would: We see also in the end of all Laws these words, Because it hath so Pleased us; to give us to understand, that the Laws of a Sove∣reign Prince, although they be grounded upon Rea∣son, yet depend upon nothing but his meer and frank good Will. But as for the Laws of God, all Prin∣ces and People are unto them subject; neither is it in their power to impugne them, if they will not be guilty of High Treason against God; under the greatness of whom, all Monarchs of the world ought to bow their Heads, in all fear and reverence.

A Question may be, Whether a Prince be subject to the Laws of his Countrey that he hath sworn to keep, or not? If a Soveraign Prince promise by Oath to his Subjects to keep the Laws, he is bound to keep them; not for that a Prince is bound to keep his Laws by himself or by his Predecessors, but by the just Con∣ventions and Promises which he hath made himself; Page  295 be it by Oath, or without any Oath at all, as should a private man be: and for the same causes that a Private man may be relieved from his unjust and un∣reasonable Promise, as for that it was so grievous, or for that he was by deceit or fraud Circumvented, or induced thereunto by Errour, or Force, or just Fear, or by some great Hurt; even for the same causes the Prince may be restored in that which tou∣cheth the diminishing of his Majesty: And so our Maxime resteth, That the Prince is not subject to His Laws, nor to the Laws of his Predecessors, but well to his Own just and reasonable Conventions.

The Soveraign Prince may derogate from the Laws that he hath promised and sworn to keep, if the Equi∣ty thereof cease, and that of himself, without Con∣sent of his Subjects; which his Subjects cannot do a∣mong Themselves, if they be not by the Prince re∣lieved.

The Foreign Princes well-advised, will never take Oath to keep the Laws of their Predecessors; for o∣therwise they are not Sovereigns.

Notwithstanding all Oaths, the Prince may Dero∣gate from the Laws, or Frustrate or Disannul the same, the Reason and Equity of them ceasing.

There is not any Bond for the Soveraign Prince to keep the Laws, more than so far as Right and Justice requireth.

Neither is it to be found, that the Antient Kings of the Hebrews took any Oaths, no not they which were Anointed by Samuel, Elias, and others.

As for General and Particular, which concern the Right of men in Private, they have not used to be otherwise Changed, but after General Assemblies of Page  296 the Three Estates in France; not for that it is neces∣sary for the Kings to rest on their Advice, or that he may not do the Contrary to that they demand, if na∣tural Reason and Justice do so require. And in that the Greatness and Majesty of a true Soveraign Prince is to be known, when the Estates of all the People assembled together in all Humility present their Re∣quests and Supplications to their Prince, without ha∣ving any Power in any thing to Command, or De∣termine, or to give Voice; but that that which it pleaseth the King to Like or Dislike, to Command or Forbid, is holden for Law. Wherein they which have written of the Duty of Magistrates, have de∣ceived themselves, in maintaining that the Power of the People is greater than the Prince; a thing which oft-times causeth the true Subjects to revolt from the Obedience which they owe unto their Soveraign Prince, and ministreth matter of great Troubles in Commonwealths; of which their Opinion, there is neither reason nor ground.

If the King should be Subject unto the Assemblies and Decrees of the People, he should neither be King nor Soveraign, and the Commonwealth neither Realm nor Monarchy; but a meer Aristocracy of many Lords in Power equal, where the Greater part commandeth the less; and whereon the Laws are not to be published in the Name of him that Ruleth, but in the Name and Authority of the Estates; as in an Aristocratical Seignory, where he that is Chief hath no Power, but oweth Obeisance to the Seignory; unto whom yet they every one of them feign them∣selves to owe their Faith and Obedience: which are all things so absurd, as hard it is to see which is fur∣thest from Reason.

Page  297When Charles the eighth, the French King, then but Fourteen years old, held a Parliament at Tours, although the Power of the Parliament was never Be∣fore nor After so great, as in those Times; yet Relli then the Speaker for the People, turning himself to the King, thus beginneth: Most High, most Mighty, and most Christian King, our Natural and Onely Lord; we poor, humble, and obedient Subjects, &c. which are come hither by your Command, in all Humility, Reve∣rence, and Subjection, present our selves before you, &c. And have given me in charge from all this Noble As∣sembly to declare unto You, the good Will and hearty desire they have, with a most fervent Resolution to Serve, Obey, and Aid You in all your Affairs, Commandments, and Pleasures. All this Speech is nothing else but a Declaration of their good Will towards the King, and of their humble Obedience and Loyalty.

The like Speech was used in the Parliament at Or∣leans to Charles the 9th, when he was scarce Eleven Years old.

Neither are the Parliaments in Spain otherwise holden, but that even a greater Obedience of all the People is given to the King; as is to be seen in the Acts of the Parliament at Toledo by King Philip, 1552. when he yet was scarce Twenty Five Years old. The Answers also of the King of Spain unto the Requests and humble Supplications of his People, are given in these words: We will, or else, We Decree or Ordain; yea, the Subsidies that the Subjects pay unto the King of Spain, they call Service.

In the Parliaments of England, which have com∣monly been holden every Third Year, the Estates seem to have a great Liberty, (as the Northern People Page  298 almost all breathe thereafter) yet so it is, that in ef∣fect they proceed not, but by way of Supplications and Requests to the King. As in the Parliament holden in Octob. 1566. when the Estates by a common Consent had resolved (as they gave the Queen to un∣derstand) not to Treat of any thing, until She had first Appointed who should Succeed Her in the Crown; She gave them no other Answer, but That they were not to make her Grave before she were Dead. All whose Resolutions were to no purpose without Her good liking, neither did She in that any thing that they requested.

Albeit by the Sufferance of the King of England, Controversies between the King and his People are sometimes determined by the High Court of Parlia∣ment; yet all the Estates remain in full subjection to the King, who is no way bound to follow their Ad∣vice, neither to consent to their Requests.

The Estates of England are never otherwise As∣sembled, no more than they are in France or Spain, than by Parliament-Writs and express Command∣ments, proceeding from the King; which sheweth very well, that the Estates have no Power of them∣selves to Determine, Command, or Decree any thing; seeing they cannot so much as Assemble themselves, neither being Assembled, Depart without express Commandment from the King.

Yet this may seem one special thing, that the Laws made by the King of England, at the Request of the Estates, cannot be again repealed, but by calling a Parliament; though we see Henry the eighth to have always used his Soveraign Power, and with his only word to have disannulled the Decrees of Parliament.

Page  299We conclude the Majesty of a Prince to be nothing altered or diminished by the Calling together, or Pre∣sence of the Estates: But to the contrary, His Maje∣sty thereby to be much the Greater and the more Ho∣nourable, seeing all His People to acknowledge Him for their Soveraign.

We see the principal Point of Soveraign Majesty and Absolute Power to consist principally in giving Laws unto the Subjects without their Consent. It behoveth, that the Soveraign Prince should have the Laws in his Power, to Change and Amend them ac∣cording as Occasion shall require.

In a Monarchy, every one in particular must swear to the Observation of the Laws, and their Allegi∣ance to One Soveraign Monarch; who, next unto God, (of whom he holds his Scepter and Power) is bound to No Man: For an Oath carrieth always with it Reverence unto whom, and in whose Name it is made, as still given to a Superiour; and there∣fore the Vassal gives such Oath unto his Lord, but re∣ceives None from Him again, though they be mutu∣ally Bound, the One of them to the Other.

Trajan swore to keep the Laws, although he under the name of a Soveraign Prince was exempted; but never any of the Emperours before him so sware: Therefore Pliny the Younger, in a Panegyrical Ora∣tion, speaking of the Oath of Trajan, gives out, A great Novelty, saith he, and never before heard of, He sweareth, by whom we swear.

Of these two things the one must come to pass, to wit, the Prince that swears to keep the Laws of his Country, must either not have the Soveraignty, or else become a Perjur'd Man, if he should Abro∣gate Page  300 but one Law contrary to his Oath; whereas it is not only Profitable that a Prince should sometimes Abrogate some such Laws, but also Necessary for him to Alter or Correct them, as the infinite Variety of Places, Times and Persons shall require: Or if we shall say, the Prince to be still a Soveraign, and yet nevertheless with such conditions, that he can make no Law without the Advice of his Councel or People; He must also be Dispensed with by his Subjects, for the Oath which he hath made for the Observation of the Laws; and the Subjects again which are obliged to the Laws, have also need to be Dispensed withal by their Prince, for fear they should be Perjur'd: So shall it come to pass, that the Majesty of the Com∣monweal enclining now to this side, now to that side; sometimes the Prince, sometimes the People bearing sway, shall have no Certainty to rest upon; which are notable Absurdities, and altogether incompatible with the Majesty of Absolute Soveraignty, and con∣trary both to Law and Reason. And yet we see ma∣ny men, that think they see more in the matter than others, will maintain it to be most Necessary, that Princes should be bound by Oath, to keep the Laws and Customs of their Countreys: In which doing, they weaken and overthrow all the Rights of Sove∣raign Majesty, which ought to be most Sacred and Holy, and confound the Soveraignty of One Sove∣raign Monarch, with an Aristocracy or Democracy.

Publication, or Approbation of Laws, in the As∣sembly of the Estates or Parliament, is with us of great importance for the keeping of the Laws; not that the Prince cannot of himself make a Law, with∣out the Consent of the Estates or People (for even Page  301 all his Declarations of War, Treaties of Peace, Va∣luations of the Coin, Charters to enable Towns to send Burgesses to Parliament, and his Writ of Sum∣mons to both Houses to Assemble, are Laws, though made without the Consent of the Estates or People;) but it is a Courteous part to do it by the good liking of the Senate.

What if a Prince by Law forbid to Kill or Steal, is he not Bound to obey his own Laws? I say, that this Law is not His, but the Law of God, whereunto all Princes are more straitly bound than their Subjects; God taketh a stricter account of Princes than others, as Solomon a King hath said; whereto agreeth Mar∣cus Aurelius, saying, The Magistrates are Judges over private men, Princes judge the Magistrates, and God the Princes.

It is not only a Law of Nature, but also oftentimes repeated among the Laws of God, that we should be Obedient unto the Laws of such Princes, as it hath pleased God to set to Rule and Reign over us; if their Laws be not directly Repugnant unto the Laws of God, whereunto all Princes are as well bound as their Subjects: For as the Vassal oweth his Oath of Fidelity unto his Lord, towards and against all men, except his Soveraign Prince: So the Subject oweth his Obedience to his Soveraign Prince, towards and against all, the Majesty of God excepted, who is the Absolute Soveraign of All the Princes in the World.

To confound the state of Monarchy, with the Popu∣lar or Aristocratical estate, is a thing impossible, and in effect incompatible, and such as cannot be imagi∣ned: For Soveraignty being of it self Indivisible, How can it at one and the same time be Divided be∣twixt Page  302 One Prince, the Nobility, and the People in common? The first Mark of Soveraign Majesty is, to be of Power to give Laws, and to Command over them unto the Subjects: And who should those Sub∣jects be that should yield their Obedience to the Law, if they should have also Power to make the Laws? Who should He be that could Give the Law, being he himself constrain'd to Receive it of them, unto whom he himself Gave it? So that of necessity we must conclude, that as no One in particular hath the Power to make the Law in such a State, that there the State must needs be Popular.

Never any Commonwealth hath been made of an Aristocracy and Popular Estate, much less of all the Three Estates of a Commonwealth.

Such States, wherein the Right of Soveraignty is Divided are not rightly to be called Commonweals, but rather the Corruption of Commonweals; as He∣rodotus hath most briefly but truly written.

Commonweals which change their State, the Sove∣raign Right and Power of them being Divided, find no rest from Civil Wars.

If the Prince be an Absolute Soveraign, as are the true Monarchs of France, of Spain, of England, Scot∣land, Turkey, Muscovy, Tartary, Persia, Aethiopia, India, and almost of all the Kingdoms of Africk and Asia; where the Kings themselves have the Sove∣raignty, without all doubt or question, not Divided with their Subjects: In this case it is not lawful for any One of the Subjects in particular, or all of them in general, to attempt any thing, either by way of Fact or of Justice, against the Honour, Life, or Dig∣nity of the Soveraign, albeit he had committed all the Page  303 Wickedness, Impiety, and Cruelty that could be spoke. For as to proceed against Him by way of Justice, the Subject hath not such Jurisdiction over his Soveraign Prince, of whom dependeth all Power to Command, and who may not only Revoke all the Power of his Magistrates, but even in whose Presence the Power of all Magistrates, Corporations, Estates and Communities cease.

Now if it be not lawful for the Subject by the way of Justice to proceed against a King, How should it then be lawful to proceed against him by way of Fact or Force? For question is not here what men are able to do by Strength and Force, but what they ought of Right to do; as not whether the Sub∣ject have Power and Strength, but whether they have lawful Power to Condemn their Soveraign Prince.

The Subject is not only guilty of Treason in the highest Degree, who hath Slain his Soveraign Prince, but even he also which hath Attempted the same, who hath given Counsel or Consent thereto; yea, if he have Concealed the same, or but so much as Thought it: Which Fact the Laws have in such Detestation, as that when a man guilty of any Of∣fence or Crime, dyeth before he be condemned there∣of, he is deemed to have died in whole and perfect Estate, except he have conspired against the Life and Dignity of his Soveraign Prince. This only thing they have thought to be such, as that for which he may worthily seem to have been now already judged and Condemned; yea, even before he was thereof Accused. And albeit the Laws inflict no Punishment upon the Evil Thoughts of men, but on those only Page  304 which by Word or Deed break out into some Enor∣mity; yet if any man shall so much as conceit a Thought for the Violating of the Person of his So∣veraign Prince, although he have Attempted nothing, they have yet Judged this same Thought worthy of Death, notwithstanding what Repentance soever he have had thereof.

Lest any men should think [Kings or Princes] themselves to have been the Authors of these Laws, so the more straitly to provide for their own Safety and Honour; let us see the Laws and Examples of Holy Scripture.

Nabuchodonosor King of Assyria, with Fire and Sword destroyed all the Country of Palestina, be∣sieged Jerusalem, took it, rob'd and razed it down to the ground, burnt the Temple, and defiled the Sanctuary of God, slew the King, with the greatest part of the people, carrying away the rest into Cap∣tivity into Babylon, caused the Image of himself made in Gold to be set up in Publick place, command∣ing all men to Adore and Worship the same, upon pain of being Burnt alive, and caused them that re∣fused so to do, to be cast into a burning Furnace. And yet for all that, the holy Prophets [Baruch 1. Jeremy 29.] directing their Letters unto their Bre∣thren the Jews, then in Captivity in Babylon, will them to pray unto God for the good and happy Life of Nabuchodonosor and his Children, and that they might so long Rule and Reign over them, as the Heavens should endure: Yea even God himself doubted not to call Nabuchodonosor his Servant, say∣ing, That he would make him the most Mighty Prince of the world; and yet was there never a more dete∣stable Page  305 Tyrant than he: who not contented to be Himself Worshipped, but caused his Image also to be Adored, and that upon pain of being burnt quick.

We have another rare Example of Saul, who pos∣sessed with an evil Spirit, caused the Priests of the Lord to be without just Cause slain, for that one of them had received David flying from him; and did what in his power was to kill, or cause to be kill'd, the same David, a most innocent Prince, by whom he had got so many Victories; at which time he fell twice himself into David's Hands: who blamed of his Souldiers for that he would not suffer his so mor∣tal Enemy, then in his power, to be Slain, being in assured Hope to have enjoyed the Kingdom after his Death; he detested their Counsel, saying, God for∣bid that I should suffer the Person of a King, the Lords Anointed, to be violated. Yea, he himself defended the same King persecuting of him, whenas he com∣manded the Souldiers of his Guard, overcome by Wine and Sleep, to be wakened.

And at such time as Saul was slain, and that a Soul∣dier, thinking to do David a pleasure, presented him with Saul's Head; David caused the same Souldier to be Slain, which had brought him the Head, say∣ing, Go thou Wicked, How durst thou lay thy impure Hands upon the Lords Anointed? Thou shalt surely Die therefore.

And afterwards, without all Dissimulation, mour∣ned Himself for the dead King. All which is worth good consideration: for David was by Saul prose∣cuted to Death, and yet wanted not Power to have revenged Himself, being become Stronger than the Page  306 King; besides, he was the Chosen of God, and A∣nointed by Samuel to be King, and had Married the King's Daughter: And yet for all that, he abhorred to take upon him the Title of a King, and much more to Attempt any thing against the Life or Honour of Saul, or to Rebel against him; but chose rather to Banish himself out of the Realm, than in any sort to seek the Kings Destruction.

We doubt not but David, a King and a Prophet, led by the Spirit of God, had always before his Eyes the Law of God, Exod. 22.28. Thou shalt not speak Evil of thy Prince, nor detract the Magistrate; nei∣ther is there any thing more common in Holy Scri∣pture, than the forbidding not only to Kill or At∣tempt the Life or Honour of a Prince, but even for the very Magistrates, although, saith the Scripture, They be Wicked and Naught.

The Protestant Princes of Germany, before they en∣tred into Arms against Charles the Emperour, de∣manded of Martin Luther, if it were Lawful for them so to do, or not; who frankly told them, That it was not Lawful, whatsoever Tyranny or Impiety were pretended: yet was he not therein by them Be∣lieved; so thereof ensued a Deadly and most Lamen∣table War, the End whereof was most Miserable; drawing with it, the Ruine of many great and noble Houses of Germany, with exceeding slaughter of the Subjects.

The Prince, whom you may justly call the Father of the Country, ought to be to every man Dearer and more Reverend than any Father, as one Ordain∣ed and Sent unto us by God. The Subject is never to be suffered to Attempt any thing against the Page  307 Prince, how Naughty and Cruel soever he be: law∣ful it is, not to obey him in things contrary to the Laws of God, to Flie and Hide our selves from him; but yet to suffer Stripes, yea, and Death also, rather than to Attempt any thing against his Life and Ho∣nour. O how many Tyrants should there be, if it should be lawful for Subjects to kill Tyrants? How many good and innocent Princes should as Tyrants perish by the Conspiracy of their Subjects against them? He that should of his Subjects but exact Sub∣sidies, should be then, as the Vulgar People esteem him, a Tyrant: He that should Rule and Command contrary to the good Liking of the People, should be a Tyrant: He that should keep strong Guards and Garrisons for the safety of his Person, should be a Tyrant: He that should put to death Traitors and Conspirators against his State, should be also counted a Tyrant. How should good Princes be assured of their Lives, if under colour of Tyranny they might be Slain by their Subjects, by whom they ought to be Defended?

In a well-ordered State, the Soveraign Power must remain in One onely, without Communicating any part thereof unto the State, (for in that case it should be a Popular Government, and no Monarchy.) Wise Politicians, Philosophers, Divines, and Historiographers, have highly commended a Monarchy above all other Commonweals. It is not to please the Prince, that they hold this Opinion; but for the Safety and Hap∣piness of the Subjects. And contrariwise, when as they shall Limit and Restrain the Soveraign Power of a Monarch, to Subject him to the General Estates, or to the Council; the Soveraignty hath no firm Foun∣dation, Page  308 but they frame a Popular Confusion, or a mi∣serable Anarchy, which is the Plague of all Estates and Commonweals: The which must be duly consi∣dered, not giving credit to their goodly Discourses, which perswade Subjects, that it is necessary to sub∣ject Monarchs, and to give their Prince a Law; for that is not only the Ruine of the Monarch, but also of the Subjects. It is yet more strange, that many hold Opinion, that the Prince is subject to his Laws, that is to say, subject to his Will, whereon the Laws which he hath made, depend; a thing impossible in Nature. And under this Colour, and ill-digested Opinion, they make a mixture and confusion of Civil Laws, with the Laws of Nature and of God.

A pure Absolute Monarchy is the furest Common∣weal, and without Comparison, the Best of all. Wherein many are abused, who maintain that an Optimacy is the best kind of Government; for that many Commanders have more Judgment, Wisdom, and Counsel, than One alone. For there is a great difference betwixt Councel and Commandment.

The Councel of Many wise men may be better than of One; But to Resolve, Determine, and to Command, One will always perform it better than Many: He which hath advisedly digested All their Opinions, will soon Resolve without Contention; the which Many cannot easily perform: It is neces∣sary to have a Soveraign Prince, which may have Power to Resolve and Determine of the Opinions of his Council.

FINIS.
Page  309

AN ADVERTISEMENT TO THE JURY-MEN of ENGLAND, TOUCHING WITCHES.

THE late Execution of Witches at the Summer Assises in Kent, occasioned this brief Exercitation, which addres∣ses it self to such as have not deliberately thought upon the great difficulty in discovering, what, or who a Witch is. To have nothing but the publick Faith of the present Age, is none of the best Evidence, unless the universality of elder Times do concur with these Doctrines, which ignorance in the times of darkness brought forth, and credulity in these days of light hath con∣tinued.

Such as shall not be pleased with this Tra∣ctate, are left to their liberty to consider, whe∣ther Page  [unnumbered] all those Proofs and Presumptions numbe∣red up by Mr. Perkins, for the Conviction of a Witch, be not all condemned, or confessed by himself to be unsufficient or uncertain.

He brings no less than eighteen Signs or Proofs, whereby a Witch may be discovered, which are too many to be all true: his seven first he himself confesseth to be insufficient for Conviction of a Witch; His eight next Proofs (which he saith men in place have used) he ac∣knowledgeth to be false or insufficient. Thus of his eighteen Proofs, which made a great show, fifteen of them are cast off by himself; there re∣mains then his sixteenth, which is the Confession of a Witch; yet presently he is forced to yield, That a bare Confession is not a sufficient proof, and so he cometh to his seventeenth proof, which is, two credible Witnesses; and he here grants, That the League between the Devil and the Witch is closely made, and the Practices of Witches be very secret, that hardly a man can be brought, which upon his own knowledge can averr such things. Therefore at last, when all other proofs fail, he is forced to fly to his eigh∣teenth proof, and tells us, that yet there is a way to come to the knowledge of a Witch, which is, that Satan useth all means to discover a Witch; which how it can be well done, except the Devil be bound over to give in Evidence Page  [unnumbered] against the Witch, cannot be understood.

And as Mr. Perkins weakens and discredits all his own Proofs, so he doth the like for all those of King James, who, as I remember, hath but Three Arguments for the discovery of a Witch. First, the secret Mark of a Witch, of which Mr. Perkins saith, it hath no power by Gods Ordinance. Secondly, The discovery by a fellow-Witch; this Mr. Perkins by no means will allow to be a good proof. Thirdly, The swimming of a Witch, who is to be flung cross-ways into the water, that is, as Wierus interprets it, when the Thumb of the right Hand is bound to the great Toe of the left Foot, and the Thumb of the left Hand to the great Toe of the right Foot. Against this Tryal by water, together with a disability in a Witch to shed Tears, (which King James mentions) Delrio and Mr. Perkins both argue; for it seems they both writ after King James, who put forth his Book of Daemonologie in his youth, being in Scotland, about his age of thirty years.

It concerns the People of this Nation to be more diligently instructed in the Doctrine of Witchcraft, than those of Foreign Countries, because here they are tyed to a stricter or ex∣acter Rule in giving their Sentence than others are: for all of them must agree in their Verdict, Page  [unnumbered] which in a case of extreme difficulty is very dangerous; and it is a sad thing for men to be reduced to that extremity, that they must ha∣zard their Consciences or their Lives.

Page  313

A DIFFERENCE Between an English and Hebrew WITCH.

THE Point in Question is briefly this; Whether such a Witch as is Condemned by the Laws and Statutes of this Land, be one and the same with the Witch forbidden by the Law of Moses.

The Witch Condemned by our Statute-Law is, 1 Jacob. Cap. 12.

One that shall use, practise, or exercise any In∣vocation or Conjuration of any evil or wicked Spi∣rit, or consult, covenant with, entertain or employ, féed or reward any evil or wicked Spirit, to or for any intent or purpose; or take up any dead man, woman, or child, out of his, her, or their grave, or any other place, where the dead body resteth; or the skin, bone, or other part of any dead per∣son, to be employed or used in any manner of Witchcraft, Sorcery, Charm or Enchantment; Page  314 or shall use, practise, or exercise any Witchcraft, Enchantment, Charm, or Sorcery, whereby any Person shall be killed, destroyed, wasted, consu∣med, pined, or lamed in his or her Body, or any part thereof: such Offenders duly and lawfully Convicted and Attainted, shall suffer death.

If any Person shall take upon him by Witch∣craft▪ Inchantment, Charm or Sorcery, to tell or declare in what place any Treasure of Gold or Silver should or might be found or had in the Earth, or other secret places, or where Goods, or things lost or stoln should be found or become: Or to the intent to provoke any Person to unlaw∣ful love, or whereby any Cattle or Goods of any Person shall be destroyed, wasted, or impaired; or to destroy or hurt any Person, in his, or her Body, though the same be not effected, &c. a years Imprisonment, and Pillory, &c. and the second Conviction Death.

In this Statute these Points are observable.

1. That this Statute was first framed in 5 Eliz. and only the Penalties here a little altered, and the last clause concerning provoking of Persons to love, and destroying of Cattle and Goods, &c. is so changed, that I cannot well make sense of it, except it be rectified according to the words of the former Statute which stands repealed.

Page  3152. Although the Statute runs altogether in the disjunctive Or, and so makes every single crime capital, yet the Judges usually by a favourable in∣terpretation, take the disjunctive Or, for the copu∣lative And; and therefore ordinarily they condemn none for Witches, unless they be charged with the Murdering of some persons.

3. This Statute presupposeth that every one knows what a Conjurer, a Witch, an Inchanter, a Charmer, and Sorcerer is, as being to be learned best of Divines; and therefore it hath not described or distinguished between them: and yet the Law is very just in requiring a due and lawful Conviction.

The Definition of Witchcraft.

FOR the better discovery of the qualities of these crimes, I shall spend some discourse upon the Definition of those Arts by Divines: for both those of the Reformed Churches, as well as those of the Roman, in a manner, agree in their definition of the sin of Witchcraft. I shall instance in two late Writers, viz. Mr. William Perkins in his Discourse of Witchcraft, and in Martin Delrio, a Jesuit of Lor∣rain, in his Book of Magical Disquisitions.

Our English word Witch, is derived from the Dutch word Wiechelen, or Wijchelen, which doth pro∣perly signifie whinying or neighing like a Horse, and doth also signifie to foretel or prophesie; and Wei∣cheler signifies a Soothsayer; for that the Germans, from whom our Ancestors the Saxons descended, usually and principally did, as Tacitus tells us, divine and foretel things to come, by the whinying and neighing of their Horses. Hinnitu & fremitu are his words.

Page  316For the Definition Mr. Perkins saith, Witchcraft is an Art serving for the work∣ing of Wonders,*by the assistance of the Devil, so far as God shall permit.

Delrio defineth it to be an Art, which by the power of a Contract entred into with the Devil,*some Wonders are wrought which pass the common understanding of men. Ars quâ vi pacti cum Daemonibus initi mira quaedam communem hominum captum superantia efficiuntur.

In these two Definitions, some Points are worth the noting.

1. They both agree in the main Foundation, which is a Contract with the Devil, and therefore Mr. Perkins thought it most necessary, that this main Point should be proved; to which purpose he promiseth to define a Witch, by opening the nature of Witchcraft,*as it is delivered in the Old and New Testament; and yet after he confesseth a manifest Covenant is not so fully set down in Scripture:* And out of the New Testament he offers no proof at all, though he promised it; nevertheless, he resolves us that a Covenant is a most evident and certain truth, that may not be called in question.

For proof of a Covenant, he produceth only one Text out of the Old Testament; neither doth he say, that the Text proveth a Contract with the Devil, but only that it intimateth so much: Thus at the first he falls from a proof to an intimation only. The Text is, Psal. 58. v. 5. of which his words are these:*Howsoever the common Translation runneth in other terms, yet the words are properly to be read thus: Which hear∣eth Page  317 not the voice of the mutterer joyning Societies cun∣ningly—the main foundation of the Charm, Societies or Confederacies cunningly made, not between man and man, but, as the words import, between the Enchanter and the Devil, Deut. 18.11.

Answer. Though there be neither mention of Spirit or Devil in this Psalm, yet Mr. Perkins would have us believe that there can be no conjoyning or consociating but with the Devil: but Mr. Ainsworth, as great a Rabbi as Mr. Perkins, finds other Interpre∣tations of this Text; and though he mentions fel∣lowship with the Devil, yet he puts it in the third and last place, as the newest and latest Interpreta∣tion: for he teacheth us, That the Enchanter had his title both in Psal. 58. and in Deut. 18. either be∣cause he associates Serpents, making them tame and fa∣miliar that they hurt not, or because such persons use to bind and tye bonds, or things about the body, to heal or hurt by Sorcery. Also he teacheth us, That a Charmer doth joyn or speak words of a strange language, and without sense, &c.

Delrio it seems puts no confidence in this Text of Mr. Perkins, for he doth not cite it to prove a Contract; yet he hath also one Text of his own to that purpose, it is Esay 28.15. where it is said,*We have made a Covenant with Death, and with Hell we are at an agreement; Percussimus foedus cum morte, & cum inferno fecimus pactum. And Delrio tells us, That Tho. Aquinas did apply this Text to Witches, magis satis probabili interpretatione.

Answer. If this Text be considered, it proves no∣thing at all: for it doth not charge the proud and drunken Ephraimites, of whom it is spoken that Page  318 they had made an agreement with Hell, but it is only a false brag of their own, to justifie their wick∣edness by a lye: for it is not possible to make a Covenant with Death, which in it self is nothing but a meer not being; and whereas it is called an agreement with Hell, it may be translated as well, if not better in this place, an agreement with the Grave; and so the Interlineary Bible hath it; and Tremelius and Junius render it, Pepigimus foedus cum morte, & cum sepulchro egimus cautum; which they term a Thrasonical Hyperbole: and Deodatus his Ita∣lian Bible hath, Habbiamo fatto lega col sepolcro; so likewise the Spanish Bible translates it, Concierto tenemos hecho con la muerte, è con la sepultura hazi∣mos acuerdo.

It may be wondered, that neither Mr. Perkins nor the Jesuit have any other or better Texts to prove this Contract between the Witch and the Devil. But the truth is, it is very little that either of them say of this great point, but pass it over perfunctorily. Perhaps it may be thought that King James hath said, or brought more and bet∣ter proofs in this point; but I do not find that he doth meddle with it at all, but takes it for granted, that if there be Witches, there must needs be a Covenant, and so leaves it without further proof.

A second note is, That the agreement between the Witch and the Devil, they call a Covenant, and yet neither of the parties are any way bound to per∣form their part; and the Devil, without doubt, notwithstanding all his craft, hath far the worst part of the bargain. The bargain runs thus in Mr. Perkins:*The Witch as a slave binds Page  319 himself by Vow to believe in the Devil, and to give him either Body, or Soul, or both, under his hand-writing, or some part of his Blood. The Devil promiseth to be ready at his vassals command to appear in the likeness of any Creature, to consult, and to aid him for the procuring of Pleasure, Honour, Wealth, or Preferment; to go for him, to carry him any whither, and to do any command. Whereby we see the Devil is not to have benefit of his bargain till the death of the Witch; in the mean time he is to appear always at the Witches command, to go for him, to carry him any whi∣ther, and to do any command: which argues the Devil to be the Witches slave, and not the Witch the Devils.

Though it be true which Delrio affirmeth, That the Devil is at liberty to perform or break his compact, for that no man can compel him to keep his promise; yet on the other side, it is as possible for the Witch to frustrate the Devils Contract, if he or she have so much grace as to repent; the which there may be good cause to do, if the Devil be found not to perform his promise. Besides, a Witch may many times require that to be done by the Devil, which God permits not the Devil to do; thus against his will the Devil may lose his credit, and give occasion of repentance, though he endeavour to the utmost of his power to bring to pass whatso∣ever he hath promised; and so fail of the benefit of his bargain, though he have the Hand-writing, or some part of the blood of the Witch for his security, or the solemnity before Witnesses, as Delrio imagineth.

I am certain they will not say, that Witchcraft is like the sin against the Holy Ghost, unpardona∣ble: Page  320 for Mr. Perkins confesseth the contrary, and Delrio denies it not;* for he allows the Sacrament of the Eucharist to be admini∣stred to a condemned VVitch, with this limitation, that there may be about four hours space between the Communion and the Exe∣cution, in which time it may be probably thought, that the Sacramental Species (as they call it) may be consumed.

3. Delrio in his second Book, and fourth Questi∣on, gives this Rule, which he saith is common to all Contracts with the Devil, That first they must deny the Faith, and Christianism, and Obedience to God, and reject the Patronage of the Virgin Mary, and revile her. To the same purpose Mr. Perkins affirms, that Witches renounce God and their Baptism. But if this be common to all Contracts with the Devil, it will follow, that none can be VVitches but such as have first been Christians, nay and Roman Catholicks, if Delrio say true; for who else can renounce the Pa∣tronage of the Virgin Mary? And what shall be said then of all those Idolatrous Nations of Lapland, Finland, and of divers parts of Africa, and many other Heathenish Nations, which our Travellers re∣port to be full of VVitches? And indeed, what need or benefit can the Devil gain by contracting with those Idolaters, who are surer his own, than any Covenant can make them?

4. VVhereas it is said, That Witchcraft is an Art working Wonders, it must be understood, that the Art must be the VVitches Art, and not the Devils, otherwise it is no Witchcraft, but Devils-craft. It is confessed on all hands, That the Witch doth not work the wonder, but the Devil only. Page  321 It is a rare Art for a Witch by her Art to be able to do nothing her self, but to command ano∣ther to practise the Art. In other Arts, Mr. Perkins confesseth, That the Arts Master is able by himself to practise his Art, and to do things belonging thereunto,*without the help of another; but in this it is otherwise— the power of effecting strange works doth not flow from the skill of the Witch, but is derived wholly from Satan. To the same purpose he saith,* That the means of working wonders are Charms used as a Watch-word to the Devil to cause him to work wonders: so that the Devil is the Worker of the wonder, and the Witch but the Counsellour, Perswader, or Commander of it, and only accessory before the Fact, and the Devil only principal. Now the difficulty will be, how the accessory can be duly and lawfully convicted and attainted according as our Statute requires, unless the Devil, who is the Principal, be first convicted, or at least outlawed; which cannot be, because the Devil can never be lawfully summoned according to the Rules of our Common Law. For further proof that the Devil is the Principal in all such wonders, I shall shew it by the testimony of King James, in a Case of Murder, which is the most capital Crime our Laws look upon. First, he tells us, That the Devil teaches Witches how to make Pictures of Wax and Clay, that by the roasting thereof, the persons that they bear the Name of, may be continually melted, or dried away by continual sickness—not that any of these means which he teacheth them (except poisons, which are composed of things natural) can of themselves help Page  322 any thing to these turns they are imployed in. Secondly,* King James affirms, That Witches can bewitch, and take the life of men or women by roasting of the Pictures, which is very possible to their Master to perform: for although that instrument of Wax have no vertue in the turn do∣ing, yet may he not very well, by that same measure that his conjured Slave melts that Wax at the fire, may he not, I say, at these same times, subtilly as a Spirit, so weaken and scatter the spirits of life of the Patient, as may make him on the one part for faintness to sweat out the humours of his body; and on the other part, for the not concurring of these spirits which cause his digestion, so debilitate his stomach, that his humour radical continually sweating out on the one part, and no new good Suck being put in the place thereof for lack of digestion on the other, he at last shall vanish away even as his Picture will do at the Fire? Here we see the Picture of Wax, roasted by the Witch, hath no virtue in the Murdering, but the Devil only. It is necessary in the first place that it be duly proved, that the party murdered be murdered by the Devil: for it is a shame to bely the Devil; and it is not possible to be proved, if it be subtilly done as a Spirit.

5. Our Definers of Witchcraft dispute much, whether the Devil can work a Miracle: they re∣solve he can do a Wonder, but not a Miracle; Mirum, but not Miraculum. A Miracle, saith Mr. Perkins, is that which is above or against Nature simply; a Wonder is that which proceeds not from the ordinary course of Nature. Delrio will have a Mira∣cle to be praeter, or supra naturae creatae vires: both seem to agree in this, That he had need be an ad∣mirable Page  323 or profound Philosopher, that can distin∣guish between a Wonder and a Miracle; it would pose Aristotle himself, to tell us every thing that can be done by the power of Nature, and what things cannot; for there be daily many things found out, and daily more may be, which our Forefathers never knew to be possible in Nature. Those that were converted by the Miracles of our Saviour, never stayed to inquire of their Philosophers what the power of Nature was; it was sufficient to them, when they saw things done, the like whereof they had neither seen nor heard of, to believe them to be Miracles.

6. It is commonly believed and affirmed by Mr. Perkins, That the cause which moves the De∣vil to bargain with a Witch, is a desire to obtain thereby the Soul and Body of the Witch. But I cannot see how this can agree with another Do∣ctrine of his, where he saith: The Precepts of Witch∣craft are not delivered indifferently to every man, but to his own subjects the wicked; and not to them all, but to special and tryed ones, whom he most betrusteth with his secrets, as being the fittest to serve his turn, both in respect of their willingness to learn and practise, as also for their ability to become Instruments of the mischief he intendeth to others. All this argues the end of the Devils rules of Witchcraft is not to gain Novices for new Subjects, but to make use of old ones to serve his turn.

7. The last clause of Mr. Perkins Definition is, That Witchcraft doth work wonders so far as God shall permit. I should here desire to have known whe∣ther Mr. Perkins had thought that God doth permit farther power to the Devil upon his contracting Page  324 with the Witch, than he had before the Contract: for if the Devil had the same permission before the Contract, then he doth no more mischief upon the Contract, then he would have gladly done before, seeing, as Mr. Perkins saith, The Devils malice towards all men is of so high a de∣gree,*that he cannot endure they should enjoy the World, or the benefits of this life (if it were possi∣ble) so much as one hour. But yet afterwards I find Mr. Perkins is more favourable to the Devil, where he writes, That if the Devil were not stirred up and provoked by the Witch, he would never do so much hurt as he doth.

Of the Discerning and Discovery of a Witch.

*A Magistrate, saith Mr. Perkins, may not take upon him to examine whom and how he willeth of any Crime, nor to pro∣ceed upon slight causes, or to shew his Authority, or upon sinister respects, or to revenge his malice, or to bring parties into danger and suspicion; but he must proceed upon special presumptions.

He calls those presumptions, which do at least probably and conjecturally note one to be a Witch,*and are certain signs whereby the Witch may be discovered. I cannot but won∣der, that Mr. Perkins should say, That presumpti∣ons do at least probably and conjecturally note, and are certain signs to discover a Witch; when he con∣fesseth, That though presumptions give occasion to exa∣mine, yet they are no sufficient causes of conviction: and though presumptions be never so strong, yet they are not proofs sufficient for Conviction, but only for Exa∣mination.Page  325 Therefore no credit is to be given to those presumptions he reckons up. 1. For common same, it falls out many times, saith he, that the innocent may be suspected, and some of the better sort notoriously de∣famed. 2. The testimony of a fellow Witch, he confes∣seth, doth not probably note one to be a Witch. The like may be said of his third and fourth presumption, if after cursing, or quarrelling, or threatning, there follow present mischief. And the fifth presumption is more frivolous, which is, if the party be the Son or Daughter, or Servant, or Friend, near Neighbour, or old Companion of a Witch. The sixth presumption Mr. Perkins dares not, or is loth to own, but saith, Some add, if the par∣ty suspected have the Devils Mark; and yet he resolves, if such a Mark be descried, whereof no evident reason in nature can be given, the Magistrate may cause such to be examined, or take the matter into his own hands, that the truth may appear; but he doth not teach how the truth may be made to appear. The last presumpti∣on he names, is, if the party examined be unconstant, or contrary to himself; here he confesseth, a good man may be fearful in a good cause, sometimes by nature, sometimes in regard of the presence of the Judge, or the greatness of the Audience; some may be suddenly taken, and others want that liberty of speech which other men have.

Touching Examination, Mr. Perkins names two kinds of proceedings, either by simple Question, or by Torture: Torture, when besides the enquiry by words, the Magistrate useth the Rack, or some other violent means to urge Confession; this he saith, may be law∣fully used, howbeit not in every case, but only upon strong and great presumptions, and when the party is obstinate. Here it may be noted, that it is not Page  326 lawful for any person, but the Judge only, to allow Torture: suspicious Neighbours may not, of their own heads, use either Threats, Terrors, or Tortures. I know not any one of those presumptions before-cited, to be sufficient to warrant a Magistrate to use Torture; or whether when the party constant∣ly denies the Fact, it must be counted obstinacy. In case of Treason sometimes, when the main Fact hath been either confessed, or by some infallible proofs manifested, the Magistrate, for a farther discovery of some circumstance of the Time, the Place, and the Persons, or the like, have made use of the Rack: and yet that kind of torture had not been of ancient usage in this Kingdom; for if my memory fail not, I have read, that the Rack hath been called the Duke of Exeters Daughter, and was first used about Hen. 6. days.

From presumptions, Mr. Perkins proceeds to proofs of a Witch; and here he hath a neat di∣stinction of proofs, less sufficient, or more sufficient; by less sufficient he meaneth insufficient, but gives them this mild and strange phrase of less sufficient, that it may not displease such friends as (I conceive) allow those less sufficient proofs for sufficient, though he reckons them for no better than Witchcraft. Those unsufficient sufficient proofs are weaker and worse than his presumptions, which he confesseth are no proofs at all; yet we must reckon them up. His first less sufficient proof is, The antient trial by taking red hot Irons, or putting the hand in hot scalding water; this, he saith, hath been condemned for Diaboli∣cal and wicked, as in truth it is: for an innocent man may thereby be condemned, and a rank Witch scape un∣punished. A second insufficient proof is, Scratching Page  327 of the suspected party, and the present recovery there∣upon. A third is, the burning the thing bewitched, as a Hog, an Ox, or other Creature, it is imagined a forcible means to cause the Witch to discover her self. A fourth, is the burning the Thatch of the suspected parties House. The fifth less sufficient proof is, the binding of the party hand and foot, and casting cross∣ways into the water; if she sinks, she is counted inno∣cent; if she float on the water and sink not, she is ta∣ken for a Witch, convicted, and punished. The Ger∣mans used this Tryal by cold water; and it was imagined, that the Devil being most light, as par∣ticipating more of Air than of Water, would hold them up above the Water, either by putting him∣self under the Witch, and lifting her up, as it were with his back, or by uniting himself, and possessing her whole body.

All these less sufficient proofs, saith Mr. Perkins, are so far from being sufficient, that some of them, if not all, are after a sort practices of Witchcraft, having no power by Gods Ordinance. Hereby he condemns point∣blank King James's judgment, as favouring of Witch∣craft, in allowing of the Tryal of a VVitch by swimming as a principal proof. And as I take it, he condemns himself also, except he can find any Or∣dinance of God, that the having of an incurable and insensible mark or sore, shall be a presumption, or certain sign of a Witch.

A sixth less sufficient proof, is the Testimony of a Wizard, Witch, or cunning man, who is gone or sent unto, and informs that he can shew in a glass the Face of the Witch. This accusation of a Witch by an∣other Witch, Mr. Perkins denies to be sufficient; and he puts this case: If the Devil appear to a Grand Ju∣ry, Page  328 in the likeness of some known man, and offer to take his Oath that the person in question is a Witch, should the Enquest receive his Oath or accusation to condemn the party? He answers, Surely no; and yet that is as much as the Testimony of another Witch, who only by the help of the Devil revealeth the Witch: if this should be taken for a sufficient proof, the Devil would not leave one good man alive in the world.

This discrediting of the Testimony of a Witch, takes away the other (for he hath but two) of King James's main proofs for the discovery of a Witch, for he saith, who but Witches can be provers, and so witnesses of the doings of Witches? and to the same purpose Mr. Perkins himself confesseth, that the Precepts of Witchcraft are not delivered, but to the Devils own Sub∣jects, the wicked.

A seventh less sufficient proof is, when a man in o∣pen Court affirms, such a one fell out with me, and cursed me, threatning I should smart for it in my person or goods; upon these threats, such Evils and Losses presently befel me; this is no sure ground for Conviction, saith Mr. Per∣kins, for it pleaseth God many times to lay his Hands up∣on mens persons and goods, without the procurement of Witches; and yet saith Mr. Perkins, Experience shews, that ignorant People will make strong proofs of such pre∣sumptions, whereupon sometimes Jurors do give their Ver∣dict against parties innocent.

The last less sufficient proof is, if a man being sick, upon suspicion will take it on his death, that such a one hath bewitched him, it is of no moment, saith Mr. Perkins; it is but the suspicion of one man for himself, and is of no more force than another mans word against him.

All these proofs, saith Mr. Perkins, which men in place have ordinarily used, be either false or insufficient signs.

Page  329At the last Mr. Perkins comes to his more suffici∣ent proofs, which are in all but two. The confessi∣on of the Witch, or the proof of two witnesses. Against the confession of a Witch, Mr. Perkins con∣fesseth, it is objected, that one may confess against himself an untruth,*being urged by force or threatning, or by desire upon some grief to be out of the World; or at least be∣ing in trouble, and perswaded it is the best course to save their Lives and obtain their Liberty, they may upon simplicity be induced to confess that they never did, even against themselves. The Truth of this Allegation Mr. Perkins doth not deny, but grants it, in that his Answer is, That he doth not say a bare Confession is sufficient, but a Confession after due Examination ta∣ken upon pregnant presumptions. But if a bare con∣fession be not a sufficient proof, a pregnant pre∣sumption can never make it such; or if it could, then it would not be a sufficient proof. For the far∣ther weakning of the Confession of a suspected Witch, we may remember what Mr. Perkins hath formerly answered, when it was alledg∣ed, that upon a melancholy humour,*ma∣ny confess of themselves things false and impossible, That they are carried through the Air in a moment, that they pass through key-holes and clefts of Doors; that they be sometimes turn'd in∣to Cats, Hares, and other Creatures, and such like; all which are meer fables, and things impossible. Here Mr. Perkins answers, that when Witches begin to make a League, they are sober and sound in under∣standing; but after they be once in the League, their reason & understanding may be depraved, memory weak∣ned, and all the powers of their Soul blemished; they Page  330 are deluded, and so intoxicated, that they will run into a thousand of phantastical imaginations, holding themselves to be transformed into the shapes of other Creatures, to be transported in the Air, to do many strange things which in truth they do not.

Now Mr. Perkins will confess, that the Examinati∣on and confession of a suspected Witch, is always af∣ter such time as her Covenant is made; when she is by his Confession deluded, and not fit to give testi∣mony against her self.

His second more sufficient proof (he saith, if the party will not confess, as commonly it falleth out) is two witnesses avouching upon their own knowledge, either that the party accused hath made League with the Devil, or hath done some known practices of Witchcraft, or hath invocated the Devil, or desired his help. But if every man that hath invocated the Devil, or desired his help, must have formerly made a League with him, then whole Nations are every man of them Witches; which I think none will say.

As for the League, and proof of Witchcraft, Mr. Perkins confesseth, Some may say, If these be the only strong proofs for the Conviction of a Witch, it will be then impossible to put any one to Death; because the League with Satan is closely made, and the practi∣ces of Witchcraft are also very secret, and hardly can a man be brought, which upon his own knowledge can aver such things. To this Mr. Perkins answer is a confession: that howsoever the ground and practice be secret, and be to many unknown, yet there is a way to come to the knowledge thereof.—Satan endeavoureth the discovery, and useth all means to disclose Witches. This means he speaks of should be in the power of the Judge, or else it is no help for the discovery of Page  331 a Witch, but only when the Devil pleaseth, I do not find he proves that it is usual with Satan to endea∣vour any such Discovery; neither do I see how it is practicable by the Devil: for either he must do it by his own relation or report; which as it cannot be proved he ever did, so it is vain, and to no purpose if he do it; for Mr. Perkins hath discredited the testi∣mony of the Devil, as invalid, and of no force for conviction: or else the Devil must discover it by some second means; and if there had been any such second means usual, Mr. Perkins would have taught us what they are, and not have left us only to his two more sufficient proofs, which he confesseth are not infallible.

King James tells us,* that the Devils first discovering of himself for the gaining of a Witch, is either upon their walking solitari∣ly in the Fields, or else lying pausing in their bed, but always without the company of any other; and at the making of Circles and Conjurations, none of that craft will permit any others to behold; when the Devil and his Subjects are thus close and secret in their actions, it cannot be imagined that he will use all means to discover his most special and trusti∣est Subjects: and though Mr. Perkins tells us, that by nature of the Precontract,*the De∣vil is cock-sure of his instruments; yet within a few lines he changeth his note, and saith, Though he have good hope of them, yet he is not certain of their continuance, because some by the mercy of God have been reclaimed and freed from his Covenant. Besides, he confesseth, the Devil suffereth some to live long undisclosed, that they may exercise the greater measure of his malice in the world. It re∣mains, Page  332 that if the two true proofs of Mr. Perkins, which are the Witches Confession, or sufficient witnesses, fail, we have not warrant, as he saith, in the word, to put such an one to Death.

I conclude this point in the words of Mr. Perkins; I advise all Jurors, that as they be diligent in the zeal of Gods glory, so they would be careful what they do, and not to condemn any party suspected upon bare presumptions, without sound and sufficient proofs, that they be not guilty through their own rashness, of shedding inno∣cent blood.

Page  333

Of the Hebrew Witch.

IN Deut. 18. The Witch is named with divers other sorts of such as used the like unlawful Arts; as the Diviner, the Observer of times, an Inchan∣ter, a Charmer, a Consulter with a Familiar Spirit, a Wisard, or a Necromancer. The Text addeth, All that do these things are an abomination to the Lord, and because of these abominations, the Lord thy God doth drive them [the Nations] out from before thee. If we desire to know what those abominations of the Nations were, we are told in general in the 14. Verse of the same Chapter: These Nations hearkened unto observers of times, and unto Diviners. There is no other crime in this Chapter laid to the charge of all, or any of these practisers of such unlawful Arts, but of lying Prophecies; and therefore the Text ad∣deth, The Lord thy God will raise up unto thee a Prophet from the midst of thee, of thy Brethren, like unto me, unto him shall ye hearken, and not to the Diviners, Wi∣sards, Charmers, &c.

Setting aside the case of Job (wherein God gave a special and Extraordinary Commission) I do not find in Scripture that the Devil, or Witch, or any other, had power ordinarily permitted them, either to kill or hurt any man, or to meddle with the Goods of any: for though, for the trial of the hearts of men, God doth permit the De∣vil Ordinarily to tempt them; yet he hath no Page  334 Commission to destroy the Lives or Goods of men; it is little less than blasphemy to say any such thing of the admirable providence of God, whereby he preserves all his Creatures.

It was crime sufficient for all those practi∣sers of unlawful Arts, to delude the People with false and lying Prophecies, thereby to make them forget to depend upon God, and to have their Souls turn after such as have Familiar Spirits, and after Wisards, to go a whoring after them, as the Lord saith, Levit. 20.6. This spiritual whoredom is flat Idolatry, in the common phrase of the Old Testa∣ment; and those that be enticers to it, thereby endeavour to destroy the Souls of the People, and are by many degrees more worthy of Death, than those that only destroy the Bodies or Goods of men.

If there were a Law that every one should be put to Death, or punished, that should advisedly endeavour to perswade men that they are skilful in those forbidden Arts, or in foretelling of things to come, or that they have contracted with the Devil, and can thereby murther or destroy mens Goods; I should never deny such a Law to be most consonant and agreeing with the Law of Moses.

But because I may be thought by some a favou∣rer of these forbidden Arts, through want of un∣derstanding the Scripture about the quality of them; I have made choice of a man who is no Friend to Witches, and whose Learning in this Page  335 point will not be denied. In his own words I shall set down, what either out of the Hebrew Names of those prohibited Arts, or out of the exposition of the Jewish Doctors can be gathered for the under∣standing of them.

1. A Diviner, in Hebrew, a Foreseer,* or Presager, a Foreteller of things to come, as doth a Prophet—The Hebrews take a Diviner to be one that doth things whereby he may foretel things to come, and say, Such a thing shall be, or not be, or say, It is good to do such a thing—The means of Divining; some doing it with Sand, some with Stones, some by lying down on the Ground, some with Iron, some with a Staff—He that asked of a Diviner, is chastised with stripes.

2. An observer of times, or Soothsayer, an Observer of the Clouds, a Planetary, or an ob∣server of the flying of Fowls, an Augur. As the Diviners were carried much by inward and Spiritual Motions, so these by outward Observa∣tions in the Creatures. The Hebrews say, they were such as did set times, for the doing of things, saying, Such a day is good, and such a day is naught.

3. An Observer of Fortunes, one that curiously searcheth signs of good or evil luck, which are Learned by Experience: the Hebrew is, to find out by Experience; Whereupon the word here used is one that too curiously observeth, and a∣buseth things that do fall out, as lucky or un∣lucky, Page  336 The Hebrews describe it thus, as if one should say, Because the morsel of Bread is fallen out of my mouth, or my Staff out of my hand, I will not go to such a place: because a Fox passed by on my right hand, I will not go out of my House this day. Our new Translation renders this word an Inchanter.

4. A Witch, a Sorcerer, such as bewitch the Senses or minds of Men, by changing the forms of things to another hew. The Hebrew word for a Witch properly signifies a Jugler, and is derived from a word which signifies changing or turning; and Moses teacheth, Exod. 7. that Witch∣es wrought by Enchantments, that is, by secret Sleights, Juglings, Close conveyance, or of Glistering like the flame of Fire, or a Sword, wherewith Mens Eyes were dazled.

5. A Charmer, or one that conjureth conjura∣tions; the Hebrew signifies conjoyning or consocia∣ting—The Charmer is said to be he, that speaketh words of a strange Language, and without sense; that if one say so or so unto a Serpent, it cannot hurt him; he that whispereth over a wound, or that readeth over an Infant that it may not be frighted, or layeth the Bible upon a Child that it may sleep.

6. A Wisard or cunning Man, in Hebrew named of his knowledge or cunning—The He∣brews describe him thus, That he put in his mouth a bone of a Bird, and burned incense, and did other things until he fell down with shame, and Page  337 spake with his mouth things that were to come to pass.

7. A Necromancer, one that seeketh unto the Dead: of him they say, he made himself hungry, and went and lodged among the Graves, that the dead might come unto him in a Dream, and make known unto him that which he asked of him; and others there were that clad themselves with Cloaths for that purpose, and spake certain words, and burned Incense, and slept by themselves; that such a dead person might come and talk with them in a Dream.

8. Lastly, The Consulter with Familiar Spirits, in Hebrew, a Consulter with Ob, applied here to Magi∣cians, who possessed with an evil Spirit, spake with a hollow voice as out of a bottle.—The Hebrews explain it thus, That he which had a Familiar Spi∣rit stood and burned Incense, and held a rod of Mirtle-tree in his hand, and waved it, and spake certain words in secret, until he that enquired did hear one speak unto him, and answer him touch∣ing that he enquired, with words from under the Earth, with a very low voice, &c. Likewise, one took a dead mans Skull and burnt Incense thereto, and inchanted thereby till he heard a very low voice, &c. This Text in our English Translation being expounded a Familiar Spirit, and seconded by the History of the Woman of Endor, may seem a strong evidence that the Devil covenanted with Witches: but if all be granted that can be desired, that this Familiar Spirit signifies a Devil, yet it comes not home to prove the main point; for it is no proof Page  338 that the Familiar Spirit enter'd upon Covenant, or had or could give power to others to kill the persons, or destroy the Goods of others. King James confesseth, the Devil can make some to be pos∣sessed, and so become very Daemoniaques; and that she who had the Spirit of Python in Acts 16. where∣by she conquested such gain to her Master; that Spirit was not of her own raising or commanding, as she plea∣sed to appoint, but spake by her Tongue as well privately as publickly. We do not find the Pythonesse con∣demned or reproved, but the unclean Spirit com∣manded in the Name of Jesus Christ to come out of her. The Child which was too young to make a Covenant with the Devil, was possessed with a dumb and deaf Spirit, and the Devil charged to come out, and enter no more into him, Mark 9. A Daughter of Abraham (that is, of the Faith of Abraham) was troubled with a Spirit of infirmity eighteen years, and bowed together that she could not lift her self up, Luke 13.10, 16.

It is observable, that in Deut. 18. where all the unlawful Arts are reckoned up, and most fully pro∣hibited, the crime of them is charged upon the practisers of those Arts; but the crime of having a Familiar Spirit is not there condemned, but the consulter of a Familiar Spirit; so in Levit. 19.31. the prohibition is, Regard not them that have Fami∣liar Spirits; and so in Levit. 20.6. The Soul that turneth after such as have Familiar Spirits; so that it was not the having, but the consulting, was con∣demned.

If we draw nearer to the words of the Text, it Page  339 will be found, that these words, a consulter with a Familiar Spirit, are no other than a Consulter with Ob; where the question will be what Ob signifieth. Expositors agree, that originally Ob signifieth a Bottle, and they say is applyed here to one posses∣sed with an evil Spirit, and speaketh with a hol∣low voice as out of a Bottle: but for this I find no proof they bring out of Scripture, that saith, or ex∣poundeth that Ob signifieth one possessed with a Familiar Spirit in the Belly; the only proof is, that the Greek Interpreters of the Bible Translate it Engastromuthi, which is, speaking in the Belly; and the word anciently, and long before the time of the Septuagint Translators, was properly used for one that had the cunning or slight to shut his mouth, and seem to speak with his Belly; which that it can be done without the help of a Familiar Spirit, Experience of this Age sheweth in an Irish∣man. We do not find it said, that the Woman of Endor did foretel any thing to Saul, by the hol∣low voice of a Familiar Spirit in her Belly; neither did Saul require, nor the Woman promise so to answer him; but he required, Bring me him up whom I shall name unto thee, and she undertook to do it; which argues a desire in Saul to consult with the dead, which is called Necromancy, or consulting with the Dead.

But it hath been said, she raised the Devil in Samuel's likeness, yet there is no such thing said in the Text; when the Woman went about her work, the first thing noted is, that when she saw Samuel, she cryed out with a loud voice: An Argument she was frighted with seeing something she did not expect Page  340 to see: it is not said, that when she knew Saul, but when she saw Samuel, she cried out with a loud voice; when she knew Saul, she had no reason to be afraid, but rather comforted, for that she had his Oath for her security.

It may well be, that if either she had a Familiar Spirit, or the Art of hollow speaking, her inten∣tion was to deceive Saul, and by her secret voice to have made him believe, that Samuel in another room had answered him; for it appears that Saul was not in the place where she made a shew of raising Sa∣muel: for when she cried out with a loud voice, Saul comforted her, and bid her not be afraid, and asked her what she saw? and what form is he of? which questions need not have been, if Saul had been in the Chamber with the Witch. King James confesseth, that Saul was in another Chamber at the conjuration; and it is likely the Woman had told Saul she had seen some fearful sight, which made him ask her what she saw? and her answer was, she saw gods ascending out of the Earth; and it may be un∣derstood, that Angels waited upon Samuel, who was raised by God, and not any Puppets or Devils that she conjured up; otherwise, the words may be Translated as Deodat in the Margent of his Italian Bible hath it, She saw a Man of Majesty or Divine Authority ascend, un' huomo di Majesta è d' Authorita Divina, which well answers the question, of what form is he of? which is in the singular, not in the plural number.

We find it said in Esay 29.4. Thou shalt be brought down, and shalt speak out of the ground, Page  341 and thy speech shall be low out of the dust, and thy voice shall be as one that hath a Familiar Spirit out of the ground, and thy speech shall whisper out of the Earth; which argues, the voice of Ob was out of the Earth, rather than out of the Belly; and so the Hebrew Exposition, which I cited before, affirms. Some Learned have been of Opinion, That a na∣tural reason may be given, why in some places cer∣tain Exhalations out of the Earth may give to some a prophetical Spirit. Add hereunto, That some of the Heathen Oracles were said to speak out of the Earth: and among those five sorts of Necro∣mancy, mentioned by Doctor Reynolds, in his 76. Lecture of his censure of the Apocryphals, not any of them is said to have any Spirit in their Belly. The Romanists, who are all great affirmers of the Power of Witches, agree, That the Soul of Samuel was sent by God to the Woman of Endor: to this not only Delrio, but Bellarmine before him agrees. That true Samuel did appear as sent by God, as he sent Elias to Ochosias King of Israel, who being sick sent to consult with Beelzebub the God of Echron, may appear, for that Samuel is so true and certain in his Prediction to Saul; which no Witch, no Devil could ever have told: for though the Wisdom and Experience of the Devil do enable him to conjecture probably of many Events, yet positively to say, To morrow thou and thy Sons shall dye, is more than naturally the Devil could know.

Mr. Perkins confesseth the Devil could not fore∣tel the exact time of Saul's death; and therefore he answers, That God revealed to the Devil as Page  342 his Instrument Saul's overthrow, by which means, and no other, the Devil was enabled to foretel the death of Saul. Here Mr. Perkins proves not that Satan was appointed by God to work Saul's over∣throw, or that it was made known to him when it should be done.

As the rest of the Speech of Samuel is true, so these words of his, Why hast thou disquieted me to bring me up? may be also true; which cannot be, if it be spoken by the Devil; or why should the Devil tell truths in all other things else, and lye only in this, I know no reason. Doctor Reynolds presseth these words against the appearing of Sa∣muel, thus: If Samuel had said them, he had lied; but Samuel could not lie, for Samuel could not be dis∣quieted, nor raised by Saul. It is true, God only raised Samuel effectually, but occasionally Saul might raise him. But, saith Doctor Reynolds, Though Saul was the occasion, yet Samuel could not truly say that Saul had disquieted him; for blessed are they that dye in the Lord, saith the Spirit, because they rest from their labours; and Samuel was no more to be disquieted (if he were sent by God) than Moses and Elias were when they appeared to shew the Glory of Christ, Mat. 17. Answer. It did not displease Samuel to be employed in the Office of an Angel, but he obeyed God glad∣ly; yet since the occasion of his appearing displea∣sed God, it might for that cause displease also Sa∣muel. Besides, we need not understand the dis∣quieting of Samuel's mind, but of his body, by not suffering it to rest in peace after death, according to the common and usual condition of Mankind: this sense the Original will well bear. Again, it Page  343 cannot be believed that the Devil would ever have preached so Divine and excellent a Sermon to Saul, which was able to have converted, and brought him to Repentance; this was not the way for the Devil to bring either Saul or the Woman to renounce God. Lastly, the Text doth not say that the Wo∣man raised Samuel; yet it calls him Samuel, and saith that Saul perceived or understood that it was Samuel.

Mr. Perkins and many others esteem Balaam to have been a Witch or Conjurer, but I find no such thing in the Text; when he was required to curse the people of Israel, his answer was, I will bring you word as the Lord shall speak unto me, Numb. 22.8. and God came unto Balaam in v. 9. and in v. 13. Balaam saith, The Lord refuseth to give me leave; and when Balak sent a second time, his answer was, If Balak would give me his house full of silver and gold, I cannot go beyond the word of the Lord my God, to do less or more. In v. 20. God cometh to Balaam, and said, If the men come to call thee, go; but yet the words which I shall say unto thee, that shalt thou do. And when Balaam came before Balak, he said, v. 38. Lo I am come unto thee, have I now any power at all to say any thing? The word which God putteth into my mouth, that shall I speak: and in the 23. Chap. v. 18. Balaam saith, How shall I curse whom God hath not cursed? And in v. 12. he saith, Must I not take heed to speak that which the Lord hath put into my mouth? These places laid together, prove Balaam to have been a true Prophet of the Lord; and he prophesied no∣thing contrary to the Lords command, therefore St. Peter calls him a Prophet.

Page  344Nevertheless it is true, that Balaam sinned no∣toriously, though not by being a Witch or Con∣jurer, or a false Prophet; his faults were, that when God had told him he should not go to Balak, yet in his covetous heart he desired to go, being tempted with the rewards of Divination, and pro∣mise of promotion; so that upon a second Message from Balak he stayed the Messengers, to see if God would suffer him to go; wherefore the Lord in his anger sent Balaam. Also when God had told Ba∣laam that he would bless Israel, yet Balaam did strive to tempt God, and by several Altars and Sacrifices to change the mind of God. Again, when Balaam saw God immutable in blessing Israel, he taught Balak to lay a stumbling-block before the Sons of Israel, to eat things sacrificed to Idols, and to commit Forni∣cation, Rev. 2.14. Whereas it is said, That Balaam went not up as at other times to seek for Enchantments, Numb. 24.2. the Original is, to meet Divinations, that is, he did not go seek the Lord by Sacrifices, as he did Numb. 23.3, 15.

An exact difference between all those Arts pro∣hibited in Deut. no man I think can give; that in some they did agree, and in others differed, seems probable. That they were all lying and false Pro∣phets, though in several ways, I think none can deny. That they differed in their degrees of pu∣nishments is possible: there are but three sorts that can be proved were to be put to death, viz. the Witch, the Familiar Spirit, the Wisard. As for the Witch, there hath been some doubt made of it. The Hebrew Doctors that were skill'd in the Laws Page  345 of Moses, observe, that wheresoever one was to dye by their Law, the Law always did run in an affirmative Precept; as, the man shall be stoned, shall dye, shall be put to death, or the like; but in this Text, and no where else in Scripture, the sentence is only a Prohibition negative, Thou shalt not suffer a Witch to live, and not, Thou shalt put her to death, or stone her, or the like. Hence some have been of opinion, that not to suffer a Witch to live, was meant not to relieve or maintain her by running after her, and rewarding her. The Hebrews seem to have two sorts of Witches, some that did hurt, others that did hold the eyes, that is, by jugling and slights deceived mens senses. The first, they say, was to be stoned; the other, which according to the proper notation of the word was the true Witch, was only to be beaten.

The Septuagint have translated a Witch an Apo∣thecary, a Druggister, one that compounds poisons; and so the Latin word for a Witch is Venefica, a maker of poisons: if any such there ever were, or be, that by the help of the Devil do poison, such a one is to be put to death, though there be no Covenant with the Devil, because she is an Actor and Principal her self, not by any wonder wrought by the Devil, but by the natural or occult property of the Poyson.

For the time of Christ, saith Mr. Perkins, though there be no particular mention made of any such Witch, yet thence it followeth not that there were none, for all things that then happened are not recorded; and I would fain know of the chief Patrons of them, whether those Page  346 persons possessed with the Devil, and troubled with strange Diseases, whom Christ healed, were not bewitch∣ed with some such people as our Witches are? If they say no, let them if they can prove the contrary.

Here it may be thought that Mr. Perkins puts his Adversaries to a great pinch; but it doth not prove so: for the Question being only whether those that were possessed in our Saviour's Time were bewitch∣ed: The Opposers of Mr. Perkins say they were not bewitched; but if he or any other say they were, the Proof will rest wholly on him or them to make good their Affirmative; it cannot in reason be ex∣pected that his Adversaries should prove the Nega∣tive; it is against the Rules of Disputation to re∣quire it.

FINIS.
Page  [unnumbered]

Patriarcha; OR THE Natural Power OF KINGS·

By the Learned Sir ROBERT FILMER Baronet.


Lucan. Lib. 3.
Libertas—Populi, quem regna coercent
Libertate perit—

Claudian.
Fallitur egregio quisquis sub Poincipe oredit.
Servitium; nusquam Libertas gratior extat
Quam sub Rege pio—

LONDON, Printed for Ric. Chiswell in St. Paul's Church-Yard, Matthew Gillyflower and William Hench∣man in Westminster Hall, 1680.

Page  [unnumbered] Page  [unnumbered]

The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN, to Sir Edward Fylmer, Son of the Worthy Author, concerning this Book and his other Political Dis∣courses.

SIR,

HOW great a Loss I had in the death of my most dear and honoured Friend, your de∣ceased Father, no man is Page  [unnumbered] able to conjecture; but he that hath suffered in the like. So affable was his Conversa∣tion, his Discourse so ratio∣nal, his Judgment so exact in most parts of Learning; and his Affections to the Church so exemplary in him, that I never enjoyed a greater Felicity in the com∣pany of any Man living, than I did in his: In which Respects I may affirm both with Safety and Modesty, that we did not only take sweet Counsel together; but walked in the House of God as Friends: I must needs say, Page  [unnumbered] I was prepared for that great Blow, by the Loss of my Preferment in the Church of Westminster, which gave me the Opportunity of so dear and beloved a Neighbour∣hood; so that I lost him partly before he died, which made the Misery the more supportable, when I was de∣prived of him for altogether. But I was never more sensi∣ble of the Infelicity, than I am at this present, in refe∣rence to that Satisfaction, which I am sure he could have given the Gentleman whom I am to deal with: Page  [unnumbered] His eminent Abilities in these Political Disputes, exempli∣fied in his Judicious Obser∣vations upon Aristotles Poli∣tiques; as also in some passa∣ges on Grotius, Hunton, Hobbs, and other of our late Dis∣coursers about Forms of Go∣vernment, declare abundant∣ly how fit a Man he might have been to have dealt in this cause, which I would not willingly should be be∣trayed by unskilful handling: And had he pleased to have suffered his Excellent Dis∣course called Patriarcha to appear in Publick, it would Page  [unnumbered] have given such satisfaction to all our great Masters in the Schools of Politie, that all other Tractates in that kind, had been found unne∣cessary.

Vide Certamen Epistolare. 386.
Page  [unnumbered]

THE CONTENTS.

CHAP. I. That the first Kings were Fa∣thers of Families.

(1) THE Tenent of the Na∣tural Liberty of the Peo∣ple, New, Plausible, and Dangerous. (2) The Question sta∣ted out of Bellarmine, and some contradictions of his noted. (3) Bel∣larmine's Argument answered out of Bellarmine himself. (4) The Royal Authority of the Patriarchs before the Flood. (5) The Disper∣sion Page  [unnumbered] of Nations over the World after the Confusion of Babel, was by entire Families, over which the Fathers were Kings. (6) And from them all Kings descended. (7) All Kings are either Fathers of their People; (8) Or Heirs of such Fathers, or Ʋsurpers of the Right of such Fathers. (9) Of the Escheating of Kingdoms. (10) Of Regal and Paternal Power, and of their Agreement.

Page  [unnumbered]

CHAP. II. It is unnatural for the People to Govern, or chose Gover∣nours.

(1) ARistotle examined about the Freedom of the People, and justified. (2) Suarez disputes a∣gainst the Regality of Adam. (3) Families diversly defined by Ari∣stotle, Bodin, and others. (4) Suarez contradicting Bellarmine. (5) Of Election of Kings, (6) By the major part of the People, (7) By Proxie, and by silent Accep∣tation. (8) No example in Scrip∣ture for the Peoples chosing their King. Mr. Hooker's Judgment Page  [unnumbered] therein. (9) God governed al∣ways by Monarchy. (10) Bellar∣mine and Aristotles judgment of Monarchy. (11) Imperfections of the Roman Democratie. (12) Rome legan her Empire under Kings, and perfected it under Em∣perours. In danger the Peo∣ple of Rome always fled to Monar∣chy. (13) Whether Democraties were invented to bridle Tyrants, or whether they crept in by stealth. (14) Democraties vilified by their own Hystorians. (15) Popular Government more Bloody than Ty∣ranny. (16) Of a mixed Govern∣ment of the King and People. (17) The People may not judg not cor∣rect their King. (18) No Tyrants in England since the Conquest.

Page  [unnumbered]

CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings.

(1) REgal Authority not subject to Positive Laws. Kings were before Laws. The Kings of Judah and Israel not tied to Laws. (2) Of Samuel's Description of a King. (3) The Power ascribed to Kings in the New Testament. (4) Whe∣ther Laws were invented to bridle Tyrants. (5) The Benefit of Laws. (6) Kings keep the Laws, though not bound by the Laws. (7) Of the Oaths of Kings. (8) Of the Benefit of the Kings Prerogative Page  [unnumbered] over Laws. (9) The King the Author, the Interpreter, and Cor∣rector of the Common Laws. (10) The King Judge in all Causes, both before the Conquest and since (11) the King and his Council ancient∣ly determined Causes in the Star-Chamber. (12) Of Parliaments. (13) When the People were first called to Parliaments (14) The Liberty of Parliaments not from Nature, but from the grace of Prin∣ces. (15) The King alone makes Laws in Parliament. (16) He Governs Both Houses by himself, (17) Or by his Council, (18) Or by his Judges.

Page  [unnumbered] Page  1

CHAP I. That the first Kings were Fa∣thers of Families.

(1) THE Tenent of the Natural Li∣berty of Mankind, New, Plau∣sible, and Dangerous. (2) The Que∣stion stated out of Bellarmine: Some Contradictions of his noted. (3) Bel∣larmine's Argument answered out of Bel∣larmine himself. (4) The Royal Au∣thority of the Patriarchs before the Flood. (5) The dispersion of Nations over the World after the Confusion of Babel, was by entire Families, over which the Fa∣thers were Kings. (6) and from them all Kings descended. (7) All Kings are either Fathers of their People, (8) Or Heirs of such Fathers, or Ʋsurpers of the Right of such Fathers. (9) Of the Escheating of Kingdoms. (10) Of Re∣gal Page  2 and Paternal Power, and their agree∣ment.

SInce the time that School-Divinity began to flourish, there hath been a common Opinion maintained, as well by Divines, as by divers other learned Men, which affirms,

Mankind is naturally endowed and born with Freedom from all Subjection, and at liberty to chose what Form of Govern∣ment it please: And that the Power which any one Man hath over others, was at first bestowed according to the discretion of the Multitude.

This Tenent was first hatched in the Schools, and hath been fostered by all succeeding Papists for good Divinity. The Divines also of the Reformed Churches have entertained it, and the Common People every where tenderly embrace it, as being most plausible to Flesh and blood, for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude, who magnifie Liberty, as if the height of Humane Fe∣licity were only to be found in it, never Page  3 remembring That the desire of Liber∣ty was the first Cause of the Fall of A∣dam.

But howsoever this Vulgar Opinion hath of late obtained a great Reputati∣on, yet it is not to be found in the An∣cient Fathers and Doctors of the Primi∣tive Church: It contradicts the Doctrine and History of the Holy Scriptures, the constant Practice of all Ancient Monar∣chies, and the very Principles of the Law of Nature. It is hard to say whether it be more erroneous in Divinity, or dan∣gerous in Policy.

Yet upon the ground of this Doctrine both Jesuites, and some other zealous favourers of the Geneva Discipline, have built a perillous Conclusion, which is, That the People or Multitude have Power to punish, or deprive the Prince, if he transgress the Laws of the Kingdom; wit∣ness Parsons and Buchanan: the first un∣der the name of Dolman, in the Third Chapter of his First Book labours to prove, that Kings have been lawfully chastised by their Commonwealths: The latter in his Book De jure Regni apud Page  4 Scotos, maintains A Liberty of the Peo∣ple to depose their Prince. Cardinal Bellarmine and Calvin, both look asquint this way.

This desperate Assertion whereby Kings are made subject to the Censures and Deprivations of their Subjects, fol∣lows (as the Authors of it conceive) as a necessary Consequence of that for∣mer Position of the supposed Natural Equality and Freedom of Mankind, and Liberty to choose what form of Government it please.

And though Sir John Heywood, Adam Blackwood, John Barclay, and some others have Learnedly Confuted both Bucha∣nan and Parsons, and bravely vindica∣ted the Right of Kings in most Points, yet all of them, when they come to the Argument drawn from the Natural Li∣berty and Equality of Mankind, do with one consent admit it for a Truth un∣questionable, not so much as once de∣nying or opposing it; whereas if they did but Confute this first erroneous Principle, the whole Fabrick of this vast Engine of Popular Sedition would drop down of it self.

Page  5The Rebellious Consequence which follows this prime Article of the Natural Freedom of Mankind may be my Suffi∣cient Warrant for a modest Examination of the original Truth of it; much hath been said, and by many, for the Affirma∣tive; Equity requires that an Ear be reser∣ved a little for the Negative.

In this DISCOURSE I shall give my self these Cautions:

First, I have nothing to do to meddle with Mysteries of State, such Arcana Imperii, or Cabinet Counsels, the Vul∣gar may not pry into. An implicite Faith is given to the meanest Artificer in his own Craft, how much more is it then due to a Prince in the profound Secrets of Government, the Causes and Ends of the greatest politique Actions and Motions of State dazle the Eyes, and exceed the Capacities of all men, save only those that are hourly versed in the managing Publique Affairs: yet since the Rule for each men to know in what to obey his Prince, cannot be learnt without a relative Knowledge of those Points wherein a Sovereign may Page  6 Command, it is necessary when the Com∣mands and Pleasures of Superiors come abroad and call for an Obedience, that every man himself know how to regulate his Actions or his sufferings; for accor∣ding to the Quality of the Thing com∣manded, an Active or Passive Obedi∣ence is to be yielded; and this is not to limit the Princes Power; but the extent of the Subjects Obedience, by giving to Caesar the things that are Cae∣sar's, &c.

Secondly, I am not to question, or quarrel at the Rights or Liberties of this or any other Nation, my task is chief∣ly to enquire from whom these first came, not to dispute what, or how ma∣ny these are; but whether they were derived from the Laws of Natural Liber∣ty, or from the Grace and bounty of Prin∣ces. My desire and Hope is, that the people of England may and do enjoy as ample Priviledges as any Nation un∣der Heaven; the greatest Liberty in the World (if it be duly considered) is for a people to live under a Monarch. It is the Magna Charta of this Kingdom, all other shews or pretexts of Liberty, are Page  7 but several degrees of Slavery, and a Li∣berty only to destroy Liberty.

If such as Maintain the Natural Liber∣ty of Mankind, take Offence at the Liber∣ty I take to Examine it, they must take heed that they do not deny by Retail, that Liberty which they affirm by Whole∣sale: For, if the Thesis be true, the Hy∣pothesis will follow, that all men may Ex∣amine their own Charters, Deeds, or E∣vidences by which they claim and hold the Inheritance or Free-hold of their Li∣berties.

Thirdly, I must not detract from the Worth of all those Learned Men, who are of a contrary Opinion in the Point of Natural Liberty: The profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable; neither Aristotle in Philosophy, nor Hooker in Divinity. They are but men, yet I reverence their Judgments in most Points, and confess my self beholding to their Errors too in this; something that I found amiss in their Opinions, guided me in the dis∣covery of that Truth which (I per∣swade Page  8 my self) they missed. A Dwarf sometimes may see that which a Giant looks over; for whilest one Truth is curiously searched after, another must necessarily be neglected. Late Writers have taken up too much upon Trust from the subtile School-Men, who to be sure to thrust down the King below the Pope, thought it the safest course to advance the People above the King, that so the Papal Power might take place of the Regal. Thus many an Ig∣norant Subject hath been fooled into this Faith, that a man may become a Martyr for his Countrey, by being a Tray∣tor to his Prince; whereas the New-coyned distinction of Subjects into Roy∣allists and Patriots, is most unnatural, since the relation between King and People is so great, that their well-being is so Reciprocal.

(2) To make evident the Grounds of this Question, about the Natural Liberty of Mankind, I will lay down some passages of Cardinal Bellarmine, that may best unfold the State of this Controversie. Secular or Civil Power (saith he) is instituted by Men; It is in Page  9 the People, unless they bestow it on a Prince. This Power is immediately in the whole Multitude, as in the Subject of it; for this Power is in the Divine Law, but the Divine Law hath given this Power to no particular Man— If the Positive Law be taken away, there is left no Reason, why amongst a Multitude (who are Equal) one rather than another should bear Rule over the rest?— Power is given by the Mul∣titude to one man, or to more by the same Law of Nature; for the Commonwealth cannot exercise this Power, therefore it is bound to bestow it upon some One Man, or some Few— It depends upon the Consent of the Multitude to ordain over themselves a King, or Consul, or other Magistrates; and if there be a lawful Cause, the Multi∣tude may change the Kingdom into an Ari∣stocracy or Democracy. Thus far Bel∣larmine; in which passages are compri∣sed the strength of all that ever I have read, or heard produced for the Natural Liberty of the Subject.

Before I examine or refute these Do∣ctrines, I must a little make some Ob∣servations upon his Words.

Page  10First, He saith, that by the law of God, Power is immediately in the Peo∣ple; hereby he makes God to be the immediate Author of a Democratical Estate; for a Democrasy is nothing else but the Power of the Multitude. If this be true, not only Aristocracies, but all Monarchies are altogether unlawful, as being ordained (as he thinks) by Men, whenas God himself hath chosen a De∣mocracy.

Secondly, He holds, that although a Democracy be the Ordinance of God, yet the people have no power to use the Power which God hath given them, but only power to give away their Power; whereby it followeth, that there can be no Democratical Government, because he saith, the people must give their Power to One Man, or to some Few; which ma∣keth either a Regal or Aristocratical Estate; which the Multitude is tyed to do, even by the same Law of Nature which Origi∣nally gave them the Power: And why then doth he say, the Multitude may change the Kingdom into a Democracy?

Page  11Thirdly, He concludes, that if there be a lawful Cause, the Multitude may change the Kingdom. Here I would fain know who shall judg of this lawful Cause? If the Multitude (for I see no Body else can) then this is a pestilent and dangerous Conclusion.

(3) I come now to examine that Ar∣gument which is used by Bellarmine, and is the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People. It is thus framed: That God hath given or ordained Power, is evident by Scripture; But God hath given it to no particular Person, because by nature all Men are E∣qual; therefore he hath given Power to the People or Multitude.

To Answer this Reason, drawn from the Equality of Mankind by Nature, I will first use the help of Bellarmine him∣self, whose very words are these: If many men had been together created out of the Earth, they all ought to have been Prin∣ces over their Posterity. In these words we have an Evident Confession, that Creation made man Prince of his Poste∣rity. Page  12 And indeed not only Adam, but the succeding Patriarchs had, by Right of Father-hood, Royal Authority over their Children. Nor dares Bellarmine deny this also. That the Patriarchs (saith he) were endowed with Kingly Power, their Deeds do testify; for as Adam was Lord of his Children, so his Children un∣der him, had a Command and Power over their own Children; but still with subor∣dination to the First Parent, who is Lord-Paramout over his Childrens Children to all Generations, as being the Grand-Father of his People.

(4) I see not then how the Children of Adam, or of any man else can be free from subjection to their Parents: And this sub∣jection of Children being the Fountain of all Regal Authority, by the Ordination of God himself; It follows, that Civil Pow∣er, not only in general is by Divine Institu∣tion, but even the Assignment of it Speci∣fically to the eldest Parents, which quite takes away that New and Common distin∣ction which refers only Power Universal and Absolute to God; but Power Respect∣ive in regard of the Special Form of Go∣vernment to the Choice of the people.

Page  13This Lordship which Adam by Com∣mand had over the whole World, and by Right descending from him the Pa∣triarchs did enjoy, was as large and ample as the Absolutest Dominion of any Monarch which hath been since the Creation: For Dominion of Life and Death, we find that Judah the Father pronounced Sentence of Death against Thamar his Daughter-in-law, for play∣ing the Harlot; Bring her forth (saith he) that she may be burnt. Touching War, we see that Abraham commanded an Army of 318 Souldiers of his own Fa∣mily. And Esau met his Brother Jacob with 400 Men at Arms. For matter of Peace, Abraham made a League with Abimilech, and ratify'd the Articles with an Oath. These Acts of Judging in Ca∣pital Crimes, of making War, and con∣cluding Peace, are the chiefest Marks of Sovereignty that are found in any Mo∣narch.

(5) Not only until the Flood, but after it, this Patriarchal Power did con∣tinue, as the very Name Patriarch doth in part prove. The three Sons of Noah had the whole World divided amongst Page  14 them by their Father; for of them was the whole World over-spread, accord∣ing to the Benediction given to him and his Sons, Be fruitful and multiply, and replenish the Earth. Most of the Civilest Nations of the Earth labour to fetch their Original from some One of the Sons or Nephews of Noah, which were scatterd abroad after the Confusion of Babel: In this Dispersion we must cer∣tainly find the Establishment of Regal Power throughout the Kingdoms of the World.

It is a common Opinion, that at the Confusion of Tongues there were 72 distinct Nations erected, all which were not Confused Multitudes, without Heads or Governors, and at Liberty to chose what Governors or Government they pleased; but they were distinct Fami∣lies, which had Fathers for Rulers over them; whereby it appears that even in the Confusion God was careful to pre∣serve the Fatherly Authority, by di∣stributing the diversity of Languages ac∣cording to the diversity of Families; for so plainly it appears by the Text: First, after the Enumeration of the Sons Page  15 of Japhet, the Conclusion is, By these were the Isles of the Gentiles divided in their Lands, every one after his Tongue, after their Families, in their Nations; so it is said: These are the Sons of Ham after their Families, after their Tongues, in their Coun∣treys, and in their Nations. The like we read, These are the Sons of Shem after their Families, after their Tongues, in their Lands, after their Nations. These are the Families of the Sons of Noah after their Ge∣nerations in their Nations; and by these were these Nations divided in the Earth, after the Flood.

In this Division of the World, some are of Opinion that Noah used Lots for the distribution of it; others affirm he sayled about the Mediterranean Sea in Ten years, and as he went about, ap∣pointed to each Son his part, and so made the Division of the then known World into Asia, Africa, and Europe, (according to the number of his Sons) the Limits of which Three Parts are all found in that Midland Sea.

(6) But howsoever the manner of this Division be uncertain, yet it is most Page  16 certain the Division it self was by Fami∣lies from Noah and his Children, over which the Parents were Heads and Princes.

Amongst these was Nimrod, who no doubt (as Sir Walter Raleigh affirms) was by good Right, Lord or King over his Family; yet against Right did he enlarge his Empire, by seizing violently on the Rights of other Lords of Fami∣lies: And in this sense he may be said to be the Author and first Founder of Monarchy. And all those that do attri∣bute unto him the Original Regal Pow∣er, do hold he got it by Tyrany or Usurpation, and not by any due Ele∣ction of the People or Multitude, or by any Faction with them.

As this Patriarchal Power continued in Abraham, Isaac, and Jacob, even until the Egyptian Bondage; so we find it a∣mongst the Sons of Ismael and Esau. It is said, These are the Sons of Ismael, and these are their Names by their Castles and Towns, Twelve Princes of their Tribes and Families. And these are the Names of the Dukes that came of Esau, according to Page  17 their Families and their Places by their Nations.

(7) Some perhaps may think that these Princes and Dukes of Families were but some petty Lords under some greater Kings, because the number of them are so many, that their particular Territories could be but small, and not worthy the Title of Kingdoms; but they must consi∣der, that at first, Kings had no such large Dominions as they have now adays; we find in the time of Abraham, which was a∣bout 300 years after the Flood, that in a little corner of Asia, 9 Kings at once met in Battail, most of which were but Kings of Cities apiece, with the adjacent Terri∣tories, as of Sodom, Gomorrha, Shinar, &c. In the same Chapter is mention of Mel∣chisedeck King of Salem, which was but the City of Jerusalem. And in the Cata∣logue of the Kings of Edom, the Names of each King's City is recorded, as the on∣ly Mark to distinguish their Dominions. In the Land of Canaan, which was but a small circuit, Joshua destroyed thirty one Kings; and about the same time,*Adoni∣beseck had 70 Kings whose hands and toes he had cut off, and made them feed un∣der his Table. A few years after this, 32 Page  18 Kings came to Benhadad King of Syria, and about 70 Kings of Greece went to the Wars of Troy. Caesar found more Kings in France, than there be now Prin∣ces there, and at his sailing over into this Island, he found four Kings in our County of Kent. These heaps of Kings in each Nation are an Argument their Territories were but small, and strongly confirms our Assertion, that Erection of Kingdoms came at first only by Distin∣ction of Families.

By manifest Footsteps we may trace this Paternal Government unto the Is∣raelites coming into Egypt, where the Exercise of Supream Partriarchal Juris∣diction was intermitted, because they were in subjection to a stronger Prince. After the Return of these Israelites out of Bondage, God out of a special Care of them, chose Moses and Joshua suc∣cessively to govern as Princes in the place and stead of the Supream Fathers: and after them likewise for a time, he raised up Judges, to defend his People in time of Peril. But when God gave the Israelites Kings, he reestablished the Antient and Prime Right of Lineal Suc∣cession to Paternal Government. And Page  19 whensoever he made choice of any spe∣cial Person to be King, he intended that the Issue also should have benefit there∣of, as being comprehended sufficiently in the Person of the Father, although the Father only was named in the Graunt.

(8.) It may seem absurd to maintain, that Kings now are the Fathers of their People, since Experience shews the con∣trary. It is true, all Kings be 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 in their Right succeed to the Exercise of Supreme Ju∣risdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers: And there∣fore we find, that God told Cain of his Brother Abel, His Desires shall be subject unto thee, and thou shalt rule over him. Accordingly, when Jacob bought his Brother's Birth-right, Isaac blessed him thus, Be Lord over thy Brethren, and let the Sons of thy Mother bow before thee.*

Page  20As long as the first Fathers of Fami∣lies lived, the name of Patriarchs did aptly belong unto them; but after a few Descents, when the true Father∣hood it self was extinct, and only the Right of the Father descends to the true Heir, then the Title of Prince or King was more significant, to express the Power of him who succeeds only to the Right of that Fatherhood which his Ancestors did Naturally enjoy; by this means it comes to pass, that many a Child, by succeeding a King, hath the Right of a Father over many a Gray-headed Multitude, and hath the Title of Pater Patriae.

(9.) It may be demanded what be∣comes of the Right of Fatherhood, in Case the Crown does escheat for want of an Heir? Whether doth it not then Divolve 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 al∣ways is. If Adam himself were still living, and now ready to die, it is cer∣tain that there is One Man, and but One in the World who is next Heir, Page  21 although the Knowledge who should be that One Man be quite lost.

2. This Ignorance of the People be∣ing admitted, it doth not by any means follow; that for want of Heirs the Su∣preme Power is devolved to the Multi∣tude, and that they have Power to Rule, and Chose what Rulers they please. No, the Kingly Power escheats in such cases to the Princes and inde∣pendent Heads of Families: for every Kingdom is resolved into those parts whereof at first it was made. By the U∣niting of great Families or petty King∣doms, we find the greater Monarchies were at the first erected; and into such again, as into their first Matter many times they return again. And because the dependencie of ancient Families is oft obscure or worn out of Knowledge; therefore the wisdom of All or Most Prin∣ces have thought fit to adopt many times those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes, have enobled them, or made them fit and capable of such Re∣gal Favours. All such prime Heads and Fathers have power to consent in the Page  22 uniting or conferring of their Fatherly Right of Sovereign 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 properly by God, from whom he re∣ceives his Royal Charter of an Ʋniversal Father, though testified by the Ministry of the Heads of the People.

If it please God, for the Correction of the Prince, or punishment of the People, to suffer Princes to be removed, and others to be placed in their rooms, either by the Factions of the Nobility, or Rebellion of the People; in all such cases, the Judgment of God, who hath Power to give and to take away King∣doms, is most just: Yet the Ministry of Men who Execute Gods Judgments without Commission, is sinful and dam∣nable. God doth but use and turn mens Ʋnrighteous Acts to the performance of his Righteous Decrees.

(10) In all Kingdoms or Common∣wealths in the World, whether the Prince be the Supream Father of the People, or but the true Heir of such a Page  23 Father, or whether he come to the Crown by Usurpation, or by Election 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 Authori∣ty that is in any one, or in many, or in all these, is the only Right and na∣tural Authority of a Supream Father. There is, and always shall be continued to the end of the World, a Natural Right of a Supreme Father over every Multitude, although by the secret Will of God, many at first do most unjust∣ly obtain the Exercise of it.

To confirm this Natural Right of Regal Power, we find in the Decalogue, That the Law which enjoyns Obedi∣ence to Kings, is delivered in the terms of Honour thy Father, as if all power were originally in the Father. If Obe∣dience to Parents be immediately due 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, Page  24 gives place, and is subordinate to the power of the Magistrate.

If we compare the Natural Rights of a Father with those of a King, we find them all one, without any difference at all but only in the Latitude or Extent of them: as the Father over one Fami∣ly, so the King as Father over many Fa∣milies extends his care to preserve, feed, cloth, instruct and defend the whole Commonwealth. His War, his Peace, his Courts of Justice, and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father, and to their Children, their Rights and Privileges; so that all the Duties of a King are summed up in an Universal Fatherly Care of his Peo∣ple.

Page  25

CHAP. II. It is unnatural for the People to Govern, or Chose Go∣vernours.

(1.) ARistotle examined about the Freedom of the People and ju∣stified. (2.) Suarez disputing against the Regality of Adam. (3.) Fami∣lies diversly defined by Aristotle, Bodin and others. (4.) Suarez contradicting Bellarmine. (5.) Of Election of Kings. (6.) By the Major part of the People. (7.) By Proxy, and by silent Acceptation. (8.) No Example in Scripture of the Peoples chosing their King. Mr. Hook∣er's Judgment therein. (9.) God go∣verned always by Monarchy. (10.) Bel∣larmine and Aristotle's Judgment of Monarchy. (11.) Imperfections of the Roman Democratie. (12.) Rome Page  26 began her Empire under Kings, and perfected under Emperours. In danger, the People of Rome always fled to Mo∣narchy. (13.) Whether Democraties were invented to bridle Tyrants, or ra∣ther that they came in by Stealth, (14.) Democraties vilified by their own Historians. (15.) Popular Government more bloody than Tyranny. (16.) Of a mixed Government of the King and People. (17.) The People may not judge or correct their King (18.) No Ty∣rants in England since the Conquest.

(1.) BY conferring these Proofs and Reasons drawn from the Authority of the Scrip∣ture, it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude, to chose what Rulers they please.

Had the Patriarchs their Power gi∣ven them by their own Children? Bel∣larmine does not say it, but the Con∣trary: If then the Fatherhood enjoy∣ed this Authority for so many Ages by the Law of Nature, when was it lost, Page  27 or when forfeited, or how is it devol∣ved to the Liberty of the Multitude?

Because the Scripture is not favou∣rable to the Liberty of the People; therefore many fly to Natural Reason, and to the Authority of Aristotle. I must crave Liberty to examine or explain the Opinion of this great Philosopher; but briefly, I find this Sentence in the Third of his Politiques. Cap. 16. 〈 in non-Latin alphabet 〉. It seems to some not to be natural for one man to be Lord of all the Ci∣tizens, since a City consists of Equals. D. Lambine in his Latine Interpretati∣on of this Text, hath omitted the Trans∣lation of this word [〈 in non-Latin alphabet 〉] by this means he maketh that to be the Opinion of Aristotle, which Aristotle alleadgeth to be the Opinion but of some. This Neg∣ligence, or Wilful Escape of Lambine, in not translating a word so Material, hath been an occasion to deceive ma∣ny, who looking no farther than this Latine Translation, have concluded, and made the World now of late be∣lieve, that Aristotle here maintains a Page  28Natural Equality of Men; and not on∣ly our English Translator of Aristotle's Politiques is in this place misled by following Lambine; but even the Lear∣ned Monsieur Duvall in his Synopsis bears them company: and yet this Version of Lambine's is esteemed the best, and Printed at Paris with Causabon's corre∣cted Greek Copy, though in the ren∣dring of this place, the Elder Transla∣tions have been more faithful; and he that shall compare the Greek Text with the Latine, shall find that Causabon had just cause in his Preface to Aristotle's Works, to complain that the best Tran∣slations of Aristotle did need Correcti∣on: To prove that in these words which seem to favour the Equality of Mankind, Aristotle doth not speak according to his own Judgment, but recites only the Opinion of others; we find him clearly deliver his own Opinion, that the Power of Government did original∣ly arise from the Right of Fatherhood, which cannot possibly consist with that Natural Equality which Men dream of: for in the First of his Politiques he agrees exactly with the Scripture, and lays this Foundation of Government, Page  29 The first Society (saith he) made of Many Houses is a Village, which seems most naturally to be a Colony of Fami∣lies or foster-Brethren of Children and Childrens Children. And therefore at the beginning, Cities were under the Government of Kings, for the eldest in every house is King: And so for Kindred-sake it is in Colonies. And in the fourth of his Politiques, cap. 2. He gives the Ti∣tle of the first and Divinest sort of Go∣vernment to the Institution of Kings, by Defining Tyranny to be a Digression from the First and Divinest.

Whosoever weighs advisedly these passages, will find little hope of Natural Reason in Aristotle to prove the Natural Liberty of the Multitude. Also before him the Divine Plato concludes a Com∣monweal to be nothing else but a large Family. I know for this Position Ari∣stotle quarrels with his Master, but most unjustly; for therein he contradicts his own Principles for they both agree to fetch the Orignial of Civil Govern∣ment from the prime Government. No doubt but Moses's History of the Crea∣tion guided these two Philosophers in Page  30 finding out of this Lineal Subjection, deduced from the Laws of the First Parents, according to that Rule of St. Chrysostom, God made all Mankind of One Man, that he might teach the World to be Governed by a King, and not by a Multitude.

The Ignorance of the Creation, oc∣casioned several Errors amongst the Heathen Philosophers. Polybius, though otherwise a most profound Philosopher, and Judicious Historian, yet here he stumbles; for in searching out the Origi∣nal of Civil Societies, he conceited, That Multitudes of Men after a Deluge, a Famine, or a Pestilence, met together like Herds of Cattel without any Depen∣dency, until the strongest Bodies and bold∣est Minds got the Mastery of their Fel∣lows; even as it is (saith he) among Bulls, Bears and Cocks.

And Aristotle himself, forgetting his first Doctrine, tells us, the first Heroical Kings were chosen by the People for their deserving well of the Multitude; either by teaching them some New Arts, or by Warring for them, or by Gather∣ing Page  31 them together, or by Dividing Land amongst them; also Aristotle had another Fancy, that those Men who prove wise of Mind, were by Nature intended to be Lords, and Govern; and those which were Strong of Body were or∣dained to obey, and to be Servants. But this is a dangerous and uncertain Rule, and not without some Folly; for if a Man prove both Wise and Strong, what will Aristotle have done with him? as he was Wise, he could be no Servant, and as he had Strength, he could not be a Master; besides, to speak like a Philosopher, Nature intends all things to be perfect both in Wit and Strength. The Folly or Imbecillity pro∣ceeds from some Errour in Generation or Education; for Nature aims at Per∣fection in all her Works.

(2.) Suarez the Jusuite riseth up a∣gainst the Royal Authority of Adam, in defence of the Freedom and Liberty of the people; and thus argues. By Right of Creation (saith he) Adam had only Oeconomical power, but not Poli∣tical; he had a power over his Wife, and a Fatherly power over his Sons, Page  32 whilst they were not made Free: he might also in process of Time have Ser∣vants and a Compleat Family; and in that Family he might have compleat Oeconomical Power. But after that Fa∣milies began to be multiplied, and Men to be separated, and become the Heads of several Families; they had the same power over their Families. But Poli∣tical Power did not begin, until Fami∣lies began to be gathered together into one perfect Community; wherefore as the Community did not begin by the Creation of Adam, nor by his will alone, but of all them which did agree in this Community: So we cannot say that Adam Naturally had Political Primacy in that Community; for that cannot be gathered by any Natural Principles, because by the Force of the Law of Nature alone, it is not due unto any Progenitor, to be also King of his Po∣sterity. And if this be not gathered out of the Principles of Nature, we cannot say, God by a special Gift or Providence gave him this Power; For there is no Revelation of this, nor Te∣stimony of Scripture. Hitherto Suarez.

Page  33Whereas he makes Adam to have a Fatherly power over his Sons, and yet shuts up this power within one Family, he seems either to imagine, that all A∣dam's Children lived within one House, and under one Roof with their Father; or else, as soon as any of his Children lived out of his House, they ceased to be Subject, and did thereby become Free. For my part, I cannot believe that Adam (although he were sole Mo∣narch of the World) had any such spa∣cious Palace, as might contain any such Considerable part of his Children. It is likelier, that some mean Cottage or Tent did serve him to keep his Court in. It were hard he should lose part of his Authority, because his Children lay not within the Walls of his House. But if Suarez will allow all Adam's Children to be of his Family, howsoever they were separate in Dwellings; if their Habitations were either Contiguous, or at such Distance, as might easily receive his Fatherly Commands. And that all that were under his Commands, were of his Family, although they had many Children or Servants married, having themselves also Children. Then I see Page  34 no reason, but that we may call Adam's Family a Commonwealth, except we will wrangle about Words: For Adam living 930 years, and seeing 7 or 8 De∣scents from himself, he might live to command of his Children and their Po∣sterity a Multitude far bigger, than ma∣ny Commonwealths and Kingdoms.

(3.) I know the Politicians and Civil Lawyers do not agree well about the Definition of a Family, and Bodin doth seem in one place to confine it to a House; yet in his Definition, he doth enlarge his meaning to all Persons un∣der the Obedience of One and the same Head of the Family; and he approves better of the propriety of the Hebrew Word for a Family, which is derived from a Word that signifies a Head, a Prince, or Lord, than the Greek Word for a Family, which is derived from 〈 in non-Latin alphabet 〉, which signifies a House. Nor doth Aristotle confine a Family to One House; but esteems it to be made of those that daily converse together: whereas before him, Charondas called a Family Homosypioi, those that feed to∣gether out of one common Pannier. And Page  35Epimenides the Cretian, terms a Family Homocapnoi, those that sit by a Common Fire, or Smoak. But let Suarez under∣stand what he please by Adam's Fami∣ly; if he will but confess, as he needs must, that Adam and the Patriarchs had Absolute power of Life and Death, of Peace and War, and the like, within their Houses or Families; he must give us leave at least, to call them Kings of their Hou∣ses or Families; and if they be so by the Law of Nature, what Liberty will be left to their Children to dispose of?

Aristotle gives the Lie to Plato, and those that say Political and Oeconomical Societies are all one, and do not differ Specie, but only Multitudine & Pauci∣tate; as if there were no difference be∣twixt a Great House and a Little City. All the Argument I find he brings a∣gainst them is this.

The Community of Man and Wife,* differs from the Community of Master and Servant, because they have seve∣ral Ends. The Intention of Nature by Conjunction of Male and Female, is Generation; but the Scope of Master and Servant, is Preservation: so that a Page  36 Wife and a Servant are by Nature di∣stinguished, because Nature does not work like the Cutlers of Delphos, for she makes but one thing for one Use. If we allow this Argument to be sound, no∣thing doth follow but only this, That Conjugal and Despotical Communities do differ. But it is no consequence, That therefore, Oeconomical and Political So∣cieties do the like: for though it prove a Family to consist of two distinct Com∣munities, yet it follows not, that a Fa∣mily and a Commonwealth are distinct; because, as well in the Commonweal, as in the Families, both these Commu∣nities are found.

And as this Argument comes not home to our Point, so it is not able to prove that Title which it shews for; for if it should be granted (which yet is false) that Generation and Preservati∣on differ about the Individuum, yet they agree in the General, and serve both for the Conservation of Mankind; Even as several Servants differ in the particular Ends or Offices; as one to Brew, and another to Bake; yet they agree in the general Preservation of the Page  37 Family. Besides, Aristotle confesses, that amongst the Barbarians (as he calls all them that are not Grecians) a Wife and a Servant are the same, because by Nature, no Barbarian is fit to Govern; It is fit the Grecians should rule over the Barbarians; for by Nature a Ser∣vant and a Barbarian is all one: their Family consists only of an Ox for a Man-Servant, and a Wife for a Maid; so they are fit only to rule their Wives and their Beasts. Lastly, Aristotle (if it had pleased him) might have remembred, That Nature doth not always make one Thing but for one Use: he knows, the Tongue serves both to Speak, and to Taste.

(4.) But to leave Aristotle, and re∣turn to Suarez; he saith that Adam had Fatherly Power over his Sons, whilst they were not made Free. Here I could wish that the Jesuite had taught us, how and when Sons become Free: I know no means by the Law of Na∣ture. It is the Favour I think of the Parents only, who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care, Page  38 are then content to remit some part of their Fatherly authority; therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of sufe∣riour Parents, but many Nations have no such Custome, but on the contrary have strict Laws for the Obedience of Children: the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son, so it be done in pre∣sence of a Magistrate: And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause; But it was so decreed, lest the Father should in his Anger, suddenly, or secret∣ly kill his Son.

Also by the Laws of the Persians, and of the People of the Upper Asia, and of the Gaules, and by the Laws of the West-Indies, the Parents have power of Life and Death over their Children.

The Romans, even in their most Po∣pular Estate, had this Law in force, and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables, to the enabling of Parents to sell their Children two or three times Page  39 over. By the help of the Fatherly Pow∣er, Rome long flourished, and oftentimes was freed from great Dangers. The Fathers have drawn out of the very As∣semblies their own Sons; when being Tribunes▪ they have published Laws ten∣ding to Sedition.

Memorable is the Example of Cassius, who threw his Son headlong out of the Consistory, publishing the Law Agraria, for the Division of Lands, in the behoof of the People; and afterwards, by his own private Judgment put him to Death, by throwing him down from the Tarpei∣an Rock; the Magistrates and People standing thereat amazed, and not daring to resist his Fatherly Authority, although they would with all their Hearts, have had that Law for the Division of Land: by which it appears, it was lawful for the Father to dispose of the Life of his Child, contrary to the Will of the Ma∣gistrates or People. The Romans also had a Law, that what the Children got, was not their own, but their Fathers; although Solon made a Law, which ac∣quitted the Son from Nourishing of his Father, if his Father had taught him Page  40 no Trade, whereby to get his Living.

Suarez proceeds, and tells us, That in Process of Time, Adam had compleat Oeconomical Power. I know not what this compleat Oeconomical Power is, nor how, or what it doth really and es∣sentially differ from Political: If Adam did, or might exercise the same Jurisdi∣ction, which a King doth now in a Com∣monwealth, then the Kinds of Power are not distinct; and though they may receive an Accidental Difference by the Amplitude, or Extent of the Bounds of the One beyond the Other; yet since the like Difference is also found in Po∣litical Estates, It follows that Oeconomi∣cal and Political Power, differ no other∣wise, than a Little Commonweal differs from a Great One. Next, saith Suarez, Community did not begin at the Creation of Adam. It is true, because he had no body to Communicate with; yet Com∣munity did presently follow his Creati∣on, and that by his Will alone: for it was in his power only (who was Lord of All) to appoint what his Sons should have in Proper, and what in Common; so that Propriety and Community of Goods did follow Originally from him; Page  41 and it is the Duty of a Father, to pro∣vide as well for the Common Good of his Children, as the Particular.

Lastly, Suarez Concludes, That by the Law of Nature alone, it is not due unto any Progenitor, to be also King of his Posterity. This Assertion is con∣futed point-blank by Bellarmine, who expresly affirmeth, That the first Pa∣rents ought to have been Princes of their Posterity. And until Suarez bring some Reason for what he saith, I shall trust more to Bellarmine's Proofs, than to his Denials.

(5.) But let us Condescend a while to the Opinion of Bellarmine and Suarez, and all those, who place Supreme pow∣er in the Whole People; and ask them if their meaning be, That there is but one and the same power in all the people of the World; so that no power can be granted, except all the Men upon the Earth meet and agree, to choose a Go∣vernour.

An Answer is here given by Suarez, That it is scarce possible, nor yet expe∣dient, Page  42 that All Men in the World should be gathered together into One Commu∣nity: It is likelier, that either never, or for a very short time, that this power was in this manner, in the whole Mul∣titude of Men collected; but a little af∣ter the Creation, men began to be divi∣ded into several Commonwealths; and this distinct power was in each of them.

This Answer of Scarce possible, nor yet Expedient: —It is likelier begets a new doubt, how this distinct power comes to each particular Community, when God gave it to the whole Multi∣tude only, and not to any particular Assembly of Men. Can they shew, or prove, that ever the whole Multitude met, and divided this power which God gave them in Gross, by breaking into parcels, and by appointing a di∣stinct power to each several Common∣wealth? Without such a Compact I can∣not see (according to their own Prin∣ciples) how there can be any Election of a Magistrate by any Commonwealth, but by a meer Usurpation upon the pri∣viledge of the whole World. If any think Page  43 that particular Multitudes at their own Discretion, had power to divide them∣selves into several Commonwealths; those that think so, have neither Rea∣son nor Proof for so thinking: and thereby a Gap is opened for every pet∣ty Factious Multitude, to raise a New Commonwealth, and to make more Commonweals than there be Families in the World. But let this also be yield∣ed them, That in each particular Com∣monwealth, there is a Distinct Power in the Multitude. Was a General Meeting of a Whole Kingdom ever known for the Election of a Prince? Is there any Example of it ever found in the Whole World? To conceit such a thing, is to imagine little less than an Impossibility. And so by Consequence, no one Form of Government, or King, was ever esta∣blished according to this supposed Law of Nature.

(6.) It may be answered by some, That if either the Greatest part of a Kingdom, or if a smaller part only by Themselves, and all the Rest by Proxy; or if the part not concurring in Electi∣on, do after, by a Tacit Assent ra∣tifie Page  44 the Act of Others, That in all these Cases, it may be said to be the Work of the whole Multitude.

As to the Acts of the Major part of a Multitude, it is true, that by Politick Humane Constitutions, it is oft ordain∣ed, that the Voices of the most shall o∣ver-rule the Rest; and such Ordinances bind, because, where. Men are Assem∣bled by an humane Power; that pow∣er that doth Assemble them, can also Limit and Direct the manner of the Ex∣ecution of that Power, and by such Derivative Power, made known by Law or Custom, either the greater part, or two Thirds, or Three parts of Five, or the like, have power to oversway the Liberty of their Opposites. But in As∣semblies that take their Authority from the Law of Nature, it cannot be so: for what Freedom or Liberty is due to any Man by the Law of Nature, no Inferi∣our Power can alter, limit or diminish; no One Man, nor a Multitude, can give away the Natural Right of ano∣ther. The Law of Nature is unchange∣able, and howsoever One Man may hin∣der Another in the Use or Exercise of Page  45 his Natural Right, yet thereby No Man loseth the Right of it self; for the Right and the Use of the Right may be di∣stinguished, as Right and Possession are oft distinct. Therefore, unless it can be proved by the Law of Nature, that the Major, or some other part, have Power to over rule the Rest of the Multitude; It must follow, that the Acts of Multi∣tudes not Entire, are not Binding to All, but only to such as Consent unto them.

(7.) As to the point of Proxy; it cannot be shewed or proved, That all those that have been Absent from Popu∣lar Elections, did ever give their Voi∣ces to some of their Fellows. I ask but one Example out of the History of the whole World, Let the Commonweal be but named, wherever the Multitude, or so much as the Greatest part of it consented, either by Voice or by Pro∣curation, to the Election of a Prince. The Ambition sometimes of One Man, sometimes of Many, or the Faction of a City or Citizens, or the Mutiny of an Army, hath set up or put down Princes; but they have never tarried for this pre∣tended Order by proceeding of the whole Multitude.

Page  46Lastly, if the silent Acceptation of a Governour by part of the People, be an Argument of their Concurring in the Election of him; by the same Rea∣son, the Tacit Assent of the whole Com∣monwealth may be maintained: From whence it follows, that every Prince that comes to a Crown, either by Succession, Conquest, or Ʋsurpation, may be said to be Elected by the Peo∣ple; which Inference is too ridiculous; for in such Cases, the People are so far from the Liberty of Specification, that they want even that of Contradicti∣on.

(8.) But it is in vain to argue a∣gainst the Liberty of the People in the Election of Kings, as long as men are perswaded, that Examples of it are to be found in Scripture. It is fit there∣fore, to discover the Grounds of this Er∣rour: It is plain by an Evident Text, that it is one thing to choose a King, and another thing to set up a King over the People; this latter power the Chil∣dren of Israel had, but not the former. This distinction is found most evident in Deut. 17.15. where the Law of God Page  47 saith, Him shalt thou set King over thee, whom the Lord shall choose; so God must Eligere, and the People only do Consti∣tuere. Mr. Hooker in his Eight Book of Ecclesiastical Policy, clearly expounds this Distinction; the words are worthy the citing: Heaps of Scripture (saith he) are alledged, concerning the Solemn Coro∣nation or Inauguration of Saul, David, So∣lomon and others, by Nobles, Ancients, and the people of the Commonwealth of Is∣rael; as if these Solemnities were a kind of Deed, whereby the Right of Domi∣nion is given; which strange, untrue, and unnatural conceits, are set abroad by Seed-men of Rebellion, only to animate unquiet Spirits, and to feed them with possibilities of Aspiring unto the Thrones, if they can win the Hearts of the People; whatsoever Hereditary Ti∣tle any other before them may have. I say these unjust and insolent Positions, I would not mention, were it not there∣by to make the Countenance of Truth more Orient. For unless we will openly proclaim Defiance unto all Law, Equity and Reason, we must (for there is no other Remedy) acknowledg, that in Kingdoms Hereditary, Birth-right Page  48 giveth Right unto Sovereign Domini∣on, and the Death of the Predecessor, putteth the Successor by Blood in Sei∣sin. Those publick Solemnities before∣mentioned, do either serve for an open Testification of the Inheritor's Right, or belong to the Form of inducing of him into possession of that thing he hath Right unto. This is Mr. Hooker's Judg∣ment of the Israelites Power to set a King over themselves. No doubt but if the people of Israel had had power to choose their King, they would never have made choice of Joas, a Child but of seven years old, nor of Manasses a Boy of Twelve; since (as Solomon saith) Wo to the Land whose King is a Child: Nor is it probable they would have e∣lected Josias, but a very Child, and a Son to so wicked and Idolatrous a Fa∣ther, as that his own Servants mur∣thered him; and yet all the people set up this young Josias, and slew the Conspirators of the Death of Ammon his Father; which Justice of the People, God rewarded, by making this Josias the most Religious King, that ever that Nation enjoyed.

Page  49(9.) Because it is affirmed, that the People have Power to choose, as well what Form of Government, as what Governours they please; of which mind is Bellarmine, in those Places we cited at first. Therefore it is necessary to Examine the Strength of what is said in Defence of popu∣lar Common-weals, against this Na∣tural Form of Kingdoms, which I maintain'd. Here I must first put the Cardinal in mind of what he affirms in cold Blood, in other Places; where he saith, God when he made all Man∣kind of one Man, did seem openly to signifie, that he rather approved the Go∣vernment of one Man, than of many. Again, God shewed his Opinion, when he endued not only Men, but all Creatures with a Natural Propensi∣ty to Monarchy; neither can it be doubted, but a Natural Propensity is to be referred to God, who is Au∣thor of Nature. And again; in a Third Place, What Form of Govern∣ment God confirmed by his Authori∣ty, may be gathered by that Common∣weal, which he instituted amongst the Page  50Hebrews, which was not Aristocratical, (as Calvin saith) but plainly Monar∣chichal.

(10.) Now if God, (as Bellarmine saith) hath taught us by Natural In∣stinct, signified to us by the Creation, and confirmed by his own Example, the Excellency of Monarchy, why should Bellarmine or We doubt, but that it is Natural? Do we not find, that in every Family, the Govern∣ment of One Alone is most Natural? God did always Govern his own Peo∣ple by Monarchy only. The Patri∣archs, Dukes, Judges, and Kings were all Monarchs. There is not in all the Scripture, Mention or Approbation of any other Form of Government. At the time when Scripture saith, There was no King in Israel, but that every Man did that which was Right in his Own Eyes; Even then, the Israelites were under the Kingly Government of the Fathers of particular Families: For in the Consultation, after the Ben∣jamitical War, for providing Wives for the Benjamites, we find, the Elders of the Congregation bare only Sway. Page  51Judges 21.16. To them also were Complaints to be made, as appears by Verse 22. And though mention be made of all the Children of Israel, all the Congregation, and all the People; yet by the Term of All, the Scripture means only all the Fathers, and not all the whole Multitude, as the Text. plainly expounds it self in 2 Chron. 1.2. where Solomon speaks unto all Israel, to the Captains, the Judges, and to every Governour, the Chief of the Fathers; so the Elders of Israel are expounded to be the Chief of the Fa∣thers of the Children of Israel, 1 Kings 8.12. 2 Chron. 5.2.

At that time also, when the People of Israel begg'd a King of Samuel, they were Governed by Kingly Power. God out of a special Love and Care to the House of Israel, did choose to be their King himself, and did govern them at that time by his Viceroy Samuel, and his Sons; and therefore God tells Samuel, They have not rejected Thee, but Me, that I should not Reign over them. It seems they did not like a King by Deputati∣on, Page  52 but desired one by Succession, like all the Nations. All Nations belike had Kings then, and those by Inhe∣ritance, not by Election: for we do not find the Israelites prayed, that they themselves might choose their Own King; they dream of no such Liberty, and yet they were the Elders of Israel gathered together. If other Nations had Elected their own Kings, no doubt but they would have been as desirous to have imitated Other Nations as well in the Electing, as in the Having of a King.

Aristotle, in his Book of Politicks, when he comes to compare the several Kinds of Government, he is very reser∣ved in discoursing what Form he thinks Best: he disputes subtilely to and fro of many Points, and Judici∣ously of many Errours, but concludes nothing himself. In all those Books, I find little Commendation of Mo∣narchy. It was his Hap to live in those Times when the Graecians abound∣ed with several Common-wealths, who had then Learning enough to make Page  53 them seditious. Yet in his Ethicks, he hath so much good Manners, as to con∣fess in right down words, That Mo∣narchy is the best Form of Government, and a Popular Estate the worst. And though he be not so free in his Poli∣ticks, yet the Necessity of Truth hath here and there extorted from him, that which amounts no less to the Digni∣ty of Monarchy; he confesseth it to be First, the Natural, and the Divinest Form of Government; and that the Gods themselves did live under a Monarchy. What can a Heathen say more?

Indeed, the World for a long time knew no other sort of Government, but only Monarchy. The Best Or∣der, the Greatest Strength, the Most Stability, and easiest Government, are to be found all in Monarchy, and in no other Form of Government. The New Platforms of Commonweals were first hatched in a Corner of the World, amongst a few Cities of Greece, which have been imitated by very few other places. Those very Cities Page  54 were first, for many Years, governed by Kings, untill Wantonness, Ambition, or Faction of the People, made them attempt new kinds of Regiment; all which Mutations proved most Bloody and Miserable to the Authors of them; happy in nothing, but that they con∣tinued but a small time.

(11.) A little to manifest the Im∣perfection of Popular Government, let us but examine the most Flourishing Democracy that the World hath ever known; I mean that of Rome. First, for the Durability; at the most, it last∣ed but 480 Years (for so long it was from the Expulsion of Tarquin, to Ju∣lius Caesar.) Whereas both the Assy∣rian Monarchy lasted, without Inter∣ruption, at the least twelve hundred Years, and the Empire of the East con∣tinued 1495 Years.

2. For the Order of it, during these 480 Years, there was not any One set∣led Form of Government in Rome: for after they had once lost the Na∣tural Power of Kings, they could not Page  55 find upon what Form of Government to rest: their Fickleness is an Evi∣dence that they found things amiss in every Change. At the First they chose two Annual Consuls instead of Kings. Secondly, those did not please them long, but they must have Tri∣bunes of the People to defend their Liberty. Thirdly, they leave Tribunes and Consuls, and choose them Ten Men to make them Laws. Fourthly, they call for Consuls and Tribunes a∣gain, sometimes they choose Dicta∣tors, which were Temporary Kings, and sometimes Military Tribunes, who had Consular Power. All these shiftings caused such notable Alteration in the Government, as it passeth Historians to find out any Perfect Form of Regi∣ment in so much Confusion: One while the Senate made Laws, another while the People. The Dissentions which were daily between the Nobles and the Commons, bred those memo∣rable Seditions about Ʋsury, about Marriages, and about Magistracy. Al∣so the Graecian, the Apulian, and the Drusian Seditions, filled the Market-Places, Page  56 the Temples, and the Capitol it self, with Blood of the Citizens; the Social War was plainly Civil; the Wars of the Slaves, and the other of the Fencers; the Civil Wars of Ma∣rius and Sylla, of Cataline, of Caesar and Pompey the Triumvirate, of Augu∣stus, Lepidus and Antonius: All these shed an Ocean of Blood within Italy and the Streets of Rome.

Thirdly, for their Government, let it be allowed, that for some part of this time it was Popular, yet it was Popular as to the City of Rome only, and not as to the Dominions, or whole Empire of Rome; for no Democratie can extend further than to One City. It is impos∣sible to Govern a Kingdom, much less many Kingdoms by the whole People, or by the Greatest Part of them.

(12.) But you will say, yet the Ro∣man Empire grew all up under this kind of Popular Government, and the City became Mistress of the World. It is not so; for Rome began her Em∣pire under Kings, and did perfect it Page  57 under Emperours; it did only encrease under that Popularity: Her greatest Exaltation was under Trajan, as her longest Peace had been under Augu∣stus. Even at those times, when the Roman Victories abroad did amaze the World, then the Tragical Slaugh∣ter of Citizens at home, deserved Com∣miseration from their vanquished E∣nemies. What though in that Age of her Popularity, she bred many admi∣red Captains and Commanders (each of which was able to lead an Army, though many of them were but ill re∣quited by the People?) yet all of them were not able to support her in times of Danger; but she was forced in her greatest Troubles to create a Dictator (who was a King for a time) there∣by giving this Honourable Testimo∣ny of Monarchy, that the last Refuge in Perils of States, is to fly to Regal Authority. And though Romes Popu∣lar Estate for a while was miraculou∣sly upheld in Glory by a greater Pru∣dence than her own; yet in a short time, after manifold Alterations, she was ruined by her Own Hands. Suis & Page  58 ipsa Roma viribus ruit: For the Arms she had prepared to conquer other Na∣tions, were turned upon her Self, and Civil Contentions at last setled the Go∣vernment again into a Monarchy.

(13.) The Vulgar Opinion is, that the first Cause why the Democratical Government was brought in, was to curb the Tyranny of Monarchies. But the Falshood of this doth best ap∣pear by the first Flourishing Popular Estate of Athens, which was founded, not because of the Vices of their last King, but that his Vertuous Deserts were such as the People thought no Man Worthy enough to succeed him; a pretty wanton Quarrel to Mo∣narchy! For when their King Co∣drus understood by the Oracle, that his Country could not be saved, unless the King were slain in the Battel: He in Disguise entered his Enemies Camp, and provoked a Com∣mon Souldier to make him a Sacri∣fice for his own Kingdom, and with his Death ended the Royal Govern∣ment; for after him was never any Page  59 more Kings of Athens. As Athens thus for Love of her Codrus, changed the Government, so Rome on the contra∣ry, out of Hatred to her Tarquin, did the like. And though these two fa∣mous Commonweals did for contrary Causes abolish Monarchy, yet they both agreed in this, that neither of them thought it fit to change their State into a Democracy: but the one chose Archontes, and the other Consuls to be their Governours; both which did most resemble Kings, and continued, untill the People, by lessening the Au∣thority of these their Magistrates, did by degrees and stealth bring in their Popular Government. And I verily be∣lieve, never any Democratical State shewed it self at first fairly to the World by any Elective Entrance, but they all secretly crept in by the Back-door of Sedition and Faction.

(14.) If we will listen to the Judg∣ment of those who should best know the Nature of Popular Government, we shall find no reason for good men to desire or choose it. Xenophon, that Page  60 brave Scholar and Souldier disallow∣ed the Athenian Common-weal, for that they followed that Form of Go∣vernment wherein the Wicked are al∣ways in greatest Credit, and Vertuous men kept under. They expelled A∣ristides the Just; Themistocles died in Banishment; Meltiades in Prison; Phocion, the most virtuous and just man of his Age, though he had been chosen forty five times to be their Ge∣neral, yet he was put to Death with all his Friends, Kindred and Servants, by the Fury of the People, without Sentence, Accusation, or any Cause at All. Nor were the People of Rome much more favourable to their Wor∣thies; they banished Rutilius, Metellus, Coriolanus, the Two Scipio's and Tully: the worst men sped best; for as Xe∣nophon saith of Athens, so Rome was a Sanctuary for all Turbulent, Discon∣tented and Seditious Spirits. The Impunity of Wicked men was such, that upon pain of Death, it was for∣bidden all Magistrates to Condemn to Death, or Banish any Citizen, or to deprive him of his Liberty, or so Page  61 much as to whip him for what Offence soever he had committed, either against the Gods or Men.

The Athenians sold Justice as they did other Merchandise; which made Plato call a Popular Estate a Fair, where every thing is to be sold. The Officers when they entered upon their Charge, would brag, they went to a Golden Harvest. The Corruption of Rome was such, that Marius and Pompey durst carry Bushels of Silver into the Assemblies, to purchase the Voices of the People. Many Citizens under their Grave Gowns, came Arm∣ed into their Publick Meetings, as if they went to War. Often contrary Factions fell to Blows, sometimes with Stones, and sometimes with Swords; the Blood hath been suckt up in the Market Places with Spunges; the Ri∣ver Tiber hath been filled with the Dead Bodies of the Citizens, and the common Privies stuffed full with them.

If any man think these Disorders in Popular States were but Casual, or such as might happen under any kind of Government, he must know, Page  62 that such Mischiefs are unavoidable, and of necessity do follow all Democratical Regiments; and the Reason is gi∣ven, because the Nature of all Peo∣ple is, to desire Liberty without Re∣straint, which cannot be but where the Wicked bear Rule; and if the People should be so indiscreet, as to advance Vertuous Men, they lose their Power: for that, Good Men would favour none but the Good, which are always the fewer in Num∣ber; and the Wicked and Vicious (which is still the Greatest Part of the People) should be excluded from all Preferment, and in the end, by little and little, Wise Men should seize upon the State, and take it from the People.

I know not how to give a better Character of the People, than can be gathered from such Authors as lived amongst or near the Popular States; Thucydides, Xenophon, Livy, Tacitus, Cicero, and Salust, have set them out in their Colours. I will borrow some of their Sentences.

Page  63

There is nothing more uncertain than the People; their Opinions are as variable and sudden as Tem∣pests; there is neither Truth nor Judgment in them; they are not led by Wisdom to judg of any thing, but by Violence and Rashness; nor put they any Difference between things True and False. After the manner of Cattel, they follow the Herd that goes before; they have a Custom always to favour the Worst and Weakest; they are most prone to Suspitions, and use to Condemn men for Guilty upon any false Sug∣gestion; they are apt to believe all News, especially if it be sorrowful; and like Fame, they make it more in the Believing; when there is no Author, they fear those Evils which themselves have feigned; they are most desirous of New Stirrs and Changes, and are Enemies to Qui∣et and Rest; Whatsoever is Giddy or Head-strong, they account Man∣like and Couragious; but whatsoe∣ver is Modest or Provident, seems sluggish; each Man hath a Care of Page  64 his Particular, and thinks basely of the Common Good; they look up∣on Approaching Mischiefs as they do upon Thunder, only every Man wisheth it may not touch his own Person; it is the Nature of them, they must Serve basely, or Domi∣neer proudly; for they know no Mean.
Thus do they paint to the Life this Beast with many Heads. Let me give you the Cypher of their Form of Government; As it is begot by Sedition, so it is nourished by Arms: It can never stand without Wars, either with an Enemy abroad, or with Friends at Home. The only Means to preserve it, is, to have some powerful Enemies near, who may serve instead of a King to Govern it, that so, though they have not a King amongst them, yet they may have as good as a King Over them: For the Common Danger of an Enemy keeps them in better Unity, than the Laws they make themselves.

Page  65(15.) Many have exercised their Wits in parallelling the Inconveniencies of Regal and Popular Government; but if we will trust Experience before Specu∣lations Philosophical, it cannot be de∣nied, but this one Mischief of Sedition which necessarily waits upon all Popu∣larity, weighs down all the Inconvenien∣ces that can be found in Monarchy, tho they were never so many. It is said, Skin for Skin, yea, all that a Man hath will he give for his Life; and a Man will give his Riches for the ransome of his Life. The way then to examine what proportion the mischiefs of Sediti∣on and Tyranny have one to another, is to enquire in what kind of Government most Subjects have lost their Lives: Let Rome, which is magnified for her Popu∣larity, and villified for the Tyrannical Monsters the Emperours, furnish us with Examples. Consider whether the Cruelty of all the Tyrannical Emperours that ever ruled in this City, did ever spill a quarter of the Blood that was pour∣ed out in the last hundred Years of her glorious Commonwealth. The Murthers by Tyberius, Domitian, and Commodus, put all together, cannot match that Ci∣vil Page  66 Tragedy which was acted in that one Sedition between Marius and Sylla, nay, even by Sylla's part alone (not to mention the Acts of Marius) were four∣score and ten Senators put to Death, fifteen Consuls, two thousand and six hundred Gentlemen, and a hundred thousand others.

This was the Heighth of the Roman Liberty; Any Man might be killed that would. A Favour not fit to be granted under a Royal Government. The Mi∣series of those Licentious Times are briefly touched by Plutarch in these Words. Sylla (saith he) fell to shedding of Blood, and filled all Rome with infi∣nite and unspeakable Murthers—This was not only done in Rome, but in all the Cities of Italy throughout, there was no Temple of any God whatsoever, no Altar in any Bodies House, no Liberty of Hospital, no Fathers House, which was not embrued with Blood, and hor∣rible Murthers, the Husbands were slain in the Wives Arms, and the Children in the Mothers Laps; and yet they that were slain for private Malice, were no∣thing in respect of those that were Page  67 Murthered only for their Goods— He openly sold their Goods by the Cry∣er, sitting so proudly in his Chair of State, that it grieved the People more to see their Goods packt up by them to whom he gave, or disposed them, than to see them taken away. Sometimes he would give a whole Country, or the whole Revenues of certain Cities, unto Women for their Beauties, or to plea∣sant Jesters, Minstrels, or wicked Slaves made free. And to some he would give other Mens Wives by force, and make them be Married against their Wills. Now let Tacitus and Suetonius be searched, and see if all their cruel Emperours can match this Popular Vil∣lany, in such an Universal Slaughter of Citizens, or Civil Butchery. God only was able to match him, and over-match∣ed him, by fitting him with a most re∣markable Death, just answerable to his Life; for as he had been the Death of many thousands of his Country-men, so as many thousands of his own Kindred in the Flesh were the Death of him, for he died of an Impostume, which corrupt∣ed his Flesh in such sort, that it turned all to Lice; he had many about him to Page  68 shift him continually Night and Day; yet the Lice they wiped from him were nothing to them that multiplied upon him, there was neither Apparel, Linnen, Baths, Washings, nor Meat it self, but was presently filled with Swarms of this vile Vermine. I cite not this to ex∣tenuate the Bloody Acts of any Tyran∣nical Princes, nor will I plead in Defence of their Cruelties; only in the Compa∣rative, I maintain the Mischiefs to a State to be less Universal under a Ty∣rant King; for the Cruelty of such Ty∣rants extends ordinarily no further than to some particular Men that offend him, and not to the whole Kingdom: It is truly said by his late Majesty King James, A King can never be so notori∣ously Vicious, but he will generally fa∣vour Justice, and maintain some Order; except in the Particulars wherein his in∣ordinate Lust carries him away. Even cruel Domitian, Dionysius the Tyrant, and many others, are commended by Histo∣rians for great Observers of Justice: A natural Reason is to be rendered for it; It is the Multitude of People, and the abundance of their Riches, which are the only Strength and Glory of every Page  69 Prince: The Bodies of his Subjects do him Service in War, and their Goods supply his present Wants, therefore, if not out of Affection to his People, yet out of Natural Love to Himself, every Tyrant desires to preserve the Lives, and protect the Goods of his Subjects, which cannot be done but by Justice, and if it be not done, the Prince's Loss is the greatest; on the contrary, in a Popular State, evey man knows the Publick good doth not depend wholly on his Care, but the Common-wealth may well enough be governed by others though he tend only his Private Benefit, he never takes the Publick to be his Own Business; thus, as in a Family, where one Office is to be done by many Servants, one looks upon another, and every own leaves the Business for his Fellow, until it is quite neglected by all; nor are they much to be blamed for their Negligence, since it is an even Wager, their Ignorance is as great: For Magistrates among the Peo∣ple, being for the most part Annual, do always lay down their Office before they understand it; so that a Prince of a Duller Understanding, by Use and Page  70 Experience must needs excell them; again, there is no Tyrant so barbarously Wicked, but his own reason and sense will tell him, that though he be a God, yet he must dye like a Man; and that there is not the Meanest of his Subjects but may find a means to revenge him∣self of the Injustice that is offered him: hence it is that great Tyrants live con∣tinually in base fears, as did Dionysius the Elder; Tiberius, Caligula, and Nero are noted by Suetonius to have been frighted with Panick fears. But it is not so where wrong is done to any Particular Person by a Multitude, he knows not who hurt him, or who to complain of, or to whom to address himself for re∣paration. Any man may boldly exer∣cise his Malice and Cruelty in all Po∣pular Assemblies. There is no Tyranny to be compared to the Tyranny of a Multitude.

(16.) What though the Government of the People be a thing not to be en∣dured, much less defended, yet many men please themselves with an Opinion, that though the People may not Govern; yet they may partake and Page  71 joyn with a King in the Government, and so make a State mixed of Popular and Regal Power, which they take to be the best tempered and equallest Form of Government. But the Vanity of this Fancy is too evident, it is a meer Impossibility or Contradiction, for if a King but once admit the People to be his Companions, he leaves to be a King, and the State becomes a Democracy; at least, he is but a Titular and no Real King, that hath not the Sovereignty to Himself; for the having of this alone, and nothing but this makes a King to be a King. As for that Shew of Popula∣rity which is found in such Kingdoms as have General Assemblies for Consul∣tation about making Publick Laws: It must be remembred that such Meetings do not share or divide the Sovereignty with the Prince: but do only deliberate and advise their Supreme Head, who still reserves the Absolute Power in himself; for if in such Assemblies, the King, the Nobility, and People have equal Shares in the Sovereignty, then the King hath but one Voice, the No∣bility likewise one, and the People one, and then any two of these Voices should Page  72 have Power to over-rule the third; thus the Nobility and Commons to∣gether should have Power to make a Law to bind the King, which was ne∣ver yet seen in any Kingdom, but if it could, the State must needs be Popular and not Regal.

(17.) If it be Unnatural for the Mul∣titude to chuse their Governours, or to Govern, or to partake in the Govern∣ment, what can be thought of that dam∣nable Conclusion which is made by too many, that the Multitude may Cor∣rect, or Depose their Prince, if need be? Surely the Unnaturalness, and Inju∣stice of this Position cannot sufficiently be expressed: For admit that a King make a Contract or Paction with his People, either Originally in his Ancestors, or personally at his Coronation (for both these Pactions some dream of, but cannot offer any proof for either) yet by no Law of any Nation can a Contract be thought broken, except that first a Law∣ful Tryal be had by the Ordinary Judge of the Breakers thereof, or else every Man may be both Party and Judge in his own case, which is absur'd once to be Page  73 thought, for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Go∣vernment (that God hath laid upon them) to judge and punish him, by whom they should be judged and punished themselves. Aristotle can tell us, what Judges the Multitude are in their own case, 〈 in non-Latin alphabet 〉, The Judgment of the Multitude in Disposing of the Sovereignty may be seen in the Roman History, where we may find many good Emperours Mur∣thered by the People, and many bad Elected by them: Nero, Heliogabalus, Otho, Vitellius, and such other Monsters of Nature, were the Minions of the Multitude, and set up by them, Perti∣nax, Alexander, Severus, Gordianus, Gallus, Emilianus, Quintilius, Aurelia∣nus, Tacitus, Probus, and Numerianus; all of them good Emperours in the Judgment of all Historians, yet Mur∣thered by the Multitude.

(18.) Whereas many out of an imagi∣nary Fear pretend the Power of the Peo∣ple to be necessary for the repressing of Page  74 the Insolencies of Tyrants; wherein they propound a Remedy far worse than the Disease, neither is the Disease indeed so frequent as they would have us think. Let us be judged by the History even of our own Nation: We have enjoyed a Succession of Kings from the Conquest now for above 600 years (a time far longer than ever yet any Popular State could continue) we reckon to the Num∣ber of twenty six of these Princes since the Norman Race, and yet not one of these is taxed by our Historians for Tyranni∣cal Government. It is true, two of these Kings have been Deposed by the People, and barbarously Murthered, but neither of them for Tyranny: For as a learned Historian of our Age saith, Edward the Second and Richard the Se∣cond were not insupportable either in their Nature or Rule, and yet the People, more upon Wantonness than for any want, did take an unbridled Course a∣gainst them. Edward the Second, by ma∣ny of our Historians is reported to be of a Good and Vertuous Nature, and not Unlearned: they impute his defects ra∣ther to Fortune than either to Council or Carriage of his Affairs, the Depositi∣on Page  75 of him was a violent Fury, led by a Wife both Cruel and unchast, and can with no better Countenance of Right be justified, than may his lamentable both Indignities and Death it self. Likewise the Deposition of King Richard II, was a tempestuous Rage, neither Led or Restrained by any Rules of Reason or of State — Examine his Actions without a distempered Judgment, and you will not Condemn him to be ex∣ceeding either Insufficient or Evil; weigh the Imputations that were objected against him, and you shall find nothing either of any Truth or of great moment; Hollingshed writeth, That he was most Unthankfully used by his Subjects; for although, through the frailty of his Youth, he demeaned himself more dis∣solutely than was agreeable to the Roy∣alty of his Estate, yet in no Kings Days were the Commons in greater Wealth, the Nobility more honoured, and the Clergy less wronged; who notwith∣standing, in the Evil-guided Strength of their will, took head against him, to their own headlong destruction after∣wards; partly during the Reign of Hen∣ry, his next Successor, whose greatest Page  76 Atchievements were against his own People, in Executing those who Con∣spired with him against King Richard: But more especially in succeeding times, when, upon occasion of this Disorder, more English Blood was spent, than was in all the Foreign Wars together which have been since the Conquest.

Twice hath this Kingdom been mise∣rably wasted with Civil War, but nei∣ther of them occasioned by the Tyran∣ny of any Prince. The Cause of the Barons Wars is by good Historians at∣tributed to the stubbornness of the No∣bility, as the Bloody variance of the Houses of York and Lancaster, and the late Rebellion, sprung from the Wan∣tonness of the People. These three Un∣natural Wars have dishonoured our Na∣tion amongst Strangers, so that in the Censures of Kingdoms, the King of Spain is said to be the King of Men, be∣cause of his Subjects willing Obedi∣ence; the King of France King of Asses, because of their infinite Taxes and Im∣positions; but the King of England is said to be the King of Devils, because of his Subjects often Insurrections against, and Depositions of their Princes.

Page  77

CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings.

(1.) REgal Authority not subject to the Positive Laws, Kings before Laws; the King of Judah and Israel not tyed to Laws. (2.) Of Samuel's de∣scription of a King, 1 Sam. 8. (3.) The Power ascribed unto Kings in the New Testament. (4.) Whether Laws were invented to bridle Tyrants. (5.) The Benefit of Laws. (6.) Kings keep the Laws, though not bound by the Laws. (7.) Of the Oaths of Kings. (8.) Of the Benefit of the King's Prerogative over Laws. (9.) the King the Author, the Interpreter, and Corrector, of the Common Laws. (10.) The King, Judge in all Causes both before the Conquest and since. (11.) The King and his Coun∣cil have anciently determined Causes in the Star-Chamber. (12.) Of Parlia∣ments. Page  78 (13.) When the People were first called to Parliament. (14.) The Liberty of Parliaments, not from Na∣ture, but from Grace of the Princes. (15.) The King alone makes Laws in Parliament. (16.) Governs both Hou∣ses as Head by himself. (17.) By his Council. (18.) By his Judges.

(1.) HItherto I have endeavour∣ed to shew the Natural Institution of Regal Au∣thority, and to free it from Subjecti∣on to an Arbitrary Election of the People: It is necessary also to enquire whether Humane Laws have a Superio∣rity over Princes; because those that maintain the Acquisition of Royal Ju∣risdiction from the People, do subject the Exercise of it to Positive Laws. But in this also they err; for as Kingly Pow∣er is by the Law of God, so it hath no inferiour Law to limit it.

The Father of a Family governs by no other Law than by his own Will; not by the Laws and Wills of his Sons or Servants. There is no Nation that allows Children any Action or Remedy Page  79 for being unjustly Governed; and yet for all this, every Father is bound by the Law of Nature to do his best for the pre∣servation of his Family; but much more is a King always tyed by the same Law of Nature to keep this general Ground, That the safety of the Kingdom be his Chief Law: He must remember, That the Profit of every Man in particular, and of all together in general, is not al∣ways one and the same; and that the Pub∣lick is to be preferred before the Private; And that the force of Laws must not be so great as natural Equity it self, which cannot fully be comprised in any Laws whatsoever, but is to be left to the Re∣ligious Atchievement of those who know how to manage the Affairs of State, and wisely to Ballance the parti∣cular Profit with the Counterpoize of the Publick, according to the infinite va∣riety of Times, Places, Persons; a Proof unanswerable, for the superiority of Prin∣ces above Laws, is this, That there were Kings long before there were any Laws: For a long time the Word of a King was the only Law; and if Practice (as saith Sir Walter Raleigh) declare the Greatness of Authority, even the best Page  80 Kings of Judah and Israel were not tied to any Law; but they did whatsoever they pleased in the greatest Matters.

(2.) The Unlimited Jurisdiction of Kings is so amply described by Samuel, that it hath given Occasion to some to imagine, that it was, but either a Plot or Trick of Samuel to keep the Govern∣ment himself and Family, by frighting the Israelites with the Mischiefs in Mo∣narchy, or else a prophetical Description only of the future ill Government of Saul: But the Vanity of these Conje∣ctures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy; wherein it is evidently shewed, that the Scope of Samuel was to teach the People a dutiful Obedience to their King, even in those things which themselves did esteem Mischievous and Inconvenient: for by telling them what a King would do, he indeed instructs them what a Subject must suffer; yet not so that it is Right for Kings to do Injury, but it is Right for them to go Unpunished by the People if they do it: So that in this Point it is all one, whe∣ther Samuel describe a King, or a Tyrant, Page  81 for Patient Obedience is due to both; no Remedy in the Text against Tyrants, but in crying and praying unto God in that Day. But howsoever in a Rigorous Construction Samuel's description be ap∣plyed to a Tyrant; yet the Words by a Benigne Interpretation may agree with the manners of a Just King; and the Scope and Coherence of the Text doth best imply the more Moderate, or Qualified Sense of the Words; for as Sir W. Raleigh confesses, all those Incon∣veniences and Miseries which are reckon∣ed by Samuel as belonging to Kingly Go∣vernment, were not Intollerable, but such as have been born, and are still born, by free Consent of Subjects to∣wards their Princes; Nay at this day, and in this Land, many Tenants by their Tenures and Services are tyed to the same Subjection, even to Subordinate and Inferiour Lords: To serve the King in his Wars, and to till his Ground, is not on∣ly agreeable to the Nature of Subjects, but much desired by them; according to their several Births, and Conditions: The like may be said for the Offices of Women-Servants, Confectioners, Cooks, and Bakers, for we cannot think that the Page  82 King would use their Labours without giving them Wages, since the Text it self mentions a Liberal Reward of his Servants.

As for the taking of the Tenth of their Seed, of their Vines, and of their Sheep, it might be a Necessary Provision for their Kings Household, and so belong to the Right of Tribute: For whereas is mentioned the taking of the Tenth; it cannot agree well to a Tyrant, who observes no Proportion in fleecing his People.

Lastly, The taking of their Fields, Vineyards, and Olive-trees, if it be by Force or Fraud, or without just Re∣compence, to the Dammage of Private Persons only, it is not to be defended; but if it be upon the publick Charge and General Consent, it might be justi∣fied, as necessary at the first Erection of a Kingdom; For those who will have a King, are bound to allow him Royal maintenance, by providing Re∣venues for the CROWN, Since it is both for the Honour, Profit, and Safety too of the People, to have their King Page  83 Glorious, Powerful, and abounding in Riches, besides, we all know the Lands and Goods of many Subjects may be oft∣times Legally taken by the King, either by Forfeitures, Escheat, Attainder, Out∣lawry, Confiscation, or the like. Thus we see Samuel's Character of a King may literally well bear a mild Sense, for greater probability there is that Samuel so meant, and the Israelites so understood it; to which this may be added, that Samuel tells the Israelites, this will be the manner of the King that shall Reign over you: And Ye shall cry because of your King which Ye shall have chosen you; that is to say: Thus shall be the common Custom or Fashi∣on, or Proceeding of Saul your King; Or, as the Vulgar Latine renders it, this shall be the Right or Law of your King: not Meaning, as some expound it, the Casual Event, or Act of some individu∣um vagum, or indefinite King, that might happen one day to Tyrannize over them. So that Saul, and the constant Practice of Saul, doth best agree with the Lite∣ral Sense of the Text. Now that Saul was no Tyrant, we may note that the People asked a King, as All Nations had.Page  84 God answers, and bids Samuel to hear the Voice of the People, in all things which they spake, and appoint them a King. They did not ask a Tyrant, and to give them a Tyrant, when they asked a King, had not been to hear their Voice in all things, But rather when they asked an Egge, to have given them a Scorpion: Unless we will say, that all Nations had Tyrants. Besides, we do not find in all Scripture that Saul was Punished, or so much as Blamed, for committing any of those Acts which Samuel describes: and if Sa∣muel's drift had been only to terrifie the People, he would not have forgotten to foretell Saul's bloody Cruelty, in Murthering 85 innocent Priests, and smiting with the Edge of the Sword the City of Nob, both Man, Woman, and Child. Again, the Israelites never shrank at these Conditions proposed by Samuel, but accepted of them, as such as all other Nations were bound unto. For their Conclusion is, Nay, but we will have a King over Ʋs, that We also may be like all the Nations, and that Our King may Judge us, and go out before us to fight our Battels. Meaning he should earn his Privileges, by doing the work for Page  85 them, by Judging them, and Fighting for them. Lastly, Whereas the men∣tion of the Peoples crying unto the Lord, argues they should be under some Tyrannical Oppression; we may re∣member, that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant. No Man can say King Solomon was a Tyrant, yet all the Congregation of Israel com∣plain'd that Solomon made their Yoke grievous, and therefore their Prayer to Rehoboam is, Make thou the grievous Ser∣vice of thy Father Solomon, and his hea∣vy Yoke which he put upon us, lighter, and we will serve thee. To conclude, it is true, Saul lost his Kingdom, but not for being too Cruel or Tyrannical to his Subjects, but by being too Merciful to his Enemies; his sparing Agag when he should have slain him, was the Cause why the Kingdom was torn from him.

(3.) If any desire the direction of the New Testament, he may find our Savi∣our limiting and distinguishing Royal Power, By giving to Caesar those things that were Caesar's, and to God those things Page  86 that were God's. Obediendum est in qui∣bus mandatum Dei non impeditur. We must obey where the Commandment of God is not hindred; there is no other Law but God's Law to hinder our Obedience. It was the Answer of a Chri∣stian to the Emperour, We only worship God, in other things we gladly serve you. And it seems Tertullian thought what∣soever was not God's was the Emperours, when he saith, Bene opposuit Caesari pecu∣niam, te ipsum Deo, alioqui quid erit Dei, si omnia Caesaris. Our Saviour hath well apportioned our Money for Caesar, and our selves for God, for otherwise, what shall God's share be, if all be Cae∣sar's. The Fathers mention no Reserva∣tion of any Power to the Laws of the Land, or to the People. S. Ambrose, in his Apology for David, expresly saith, He was a King, and therefore bound to no Laws, because Kings are free from the Bonds of any Fault. S. Augustine also resolves, Imperator non est subjectus Legi∣bus, qui habet in potestate alias Leges ferre. The Emperour is not subject to Laws, who hath Power to make other Laws. For indeed, it is the Rule of Solomon, that We must keep the King's Commandment,Page  87 and not to say, What dost Thou? because Where the Word of a King is there is Power, and all that he pleaseth he will do.

If any mislike this Divinity in Eng∣land, let him but hearken to Bracton, Chief Justice in Henry the Third's days, which was since the Institution of Par∣liaments, his Words are, speaking of the King, Omnes sub Eo, & Ipse sub nullo, nisi tantum sub Deo, &c. All are under him, and he under none, but God on∣ly: If he offend, since no Writ can go against him, their Remedy is by petiti∣oning him to amend his Fault; which if he shall not do, it will be Punish∣ment sufficient for him to expect God as a Revenger: let none presume to search into his Deeds, much less to oppose them.

When the Jews asked our Blessed Sa∣viour, whether they should pay Tri∣bute, he did not first demand what the Law of the Land was, or whether there was any Statute against it, nor enquired whether the Tribute were given by Consent of the People, nor advised them to stay their Payment till Page  88 they should grant it; he did no more but look upon the Superscription, and concluded, This Image you say is Caesar's, therefore give it to Caesar. Nor must it here be said, that Christ taught this Les∣son only to the conquered Jews, for in this he gave Direction for all Nations, who are bound as much in Obedience to their Lawful Kings, as to any Con∣querour or Ʋsurper whatsoever.

Whereas being subject to the Higher Powers, some have strained these Words to signifie the Laws of the Land, or else to mean the Highest Power, as well Ari∣stocratical and Democratical, as Regal: It seems St. Paul looked for such Inter∣pretation, and therefore thought fit to be his own Expositor, and to let it be known, that by Power he understood a Monarch that carried a Sword: Wilt thou not be afraid of the Power? that is, the Ruler that carrieth the Sword, for he is the Minister of God to thee — for he beareth not the Sword in vain. It is not the Law that is the Minister of God, or that carries the Sword, but the Ru∣ler or Magistrate; so they that say the Law governs the Kingdom, may as well Page  89 say that the Carpenters Rule builds an House, and not the Carpenter; for the Law is but the Rule or Instrument of the Ruler. And St. Paul concludes, for this Cause pay you Tribute also, for they are God's Ministers attending conti∣nually upon this very thing. Render there∣fore Tribute to whom Tribute is due, Custom to whom Custom. He doth not say, give as a gift to God's Minister. But 〈 in non-Latin alphabet 〉, Render or Restore Tribute, as a due. Also St. Peter doth most clearly expound this Place of St. Paul, where he saith, Submit your selves to every Ordinance of Man, for the Lord's sake, whether it be to the King as Supreme, or unto Gover∣nours, as unto them that are sent by him. Here the very self same Word (Su∣preme, or 〈 in non-Latin alphabet 〉) which St. Paul coupleth with Power, St. Peter conjoyn∣eth with the King, 〈 in non-Latin alphabet 〉, thereby to manifest that King and Pow∣er are both one. Also St. Peter expounds his own Words of Humane Ordinance, to be the King, who is the Lex Loquens, a speaking Law; he cannot mean that Kings themselves are an humane Ordi∣nance, since St. Paul calls the Supreme Power, The Ordinance of God; and Page  90 the Wisdom of God saith, By me Kings Reign: But his meaning must be, that the Laws of Kings are humane Ordi∣nances. Next, the Governours that are sent by him; that is by the King, not by God, as some corruptly would wrest the Text, to justifie Popular Governours as authorized by God; whereas in Grammatical Construction [Him] the Relative must be referred to the next Antecedent, which is King; besides, the Antithesis between Supreme and Sent, proves plainly that the Governours were sent by Kings; for if the Gover∣nours were sent by God, and the King be an Humane Ordinance, then it fol∣lows, that the Governours were Su∣preme, and not the King; Or if it be said, that both King and Governours are sent by God, then they are both equal, and so neither of them Supreme. Therefore St. Peter's Meaning is in short, Obey the Laws of the King, or of his Ministers. By which it is evident, that neither St. Peter, nor St. Paul, intended other Form of Government than only Monarchical, much less any Subjection of Princes to humane Laws.

Page  91That familiar Distinction of the School-men, whereby they subject Kings to the Directive, but not to the Coactive Power of Laws, is a Confes∣sion, that Kings are not bound by the positive Laws of any Nation, since the compulsory Power of Laws is that which properly makes Laws to be Laws by binding Men by Rewards or Pu∣nishment to Obedience; whereas the Direction of the Law is but like the Advice and Direction which the Kings Council gives the King, which no Man says is a Law to the King.

(4.) There want not those who Be∣lieve, that the first Invention of Laws was to bridle and moderate the over∣great Power of Kings; but the truth is, the Original of Laws was for the keep∣ing of the Multitude in order: Popular Estates could not subsist at all without Laws, whereas Kingdoms were Govern'd many Ages without them. The People of Athens, assoon as they gave over Kings, were forced to give Power to Draco first, then to Solon, to make them Page  92 Laws, not to bridle Kings, but them∣selves; and tho many of their Laws were very severe and bloody, yet for the Re∣verence they bare to their Law-makers, they willingly submitted to them. Nor did the People give any Limited Power to Solon, but an Absolute Jurisdiction, at his Pleasure to Abrogate and Confirm what he thought fit, the People never challenging any such Power to them∣selves: so the People of Rome gave to the Ten Men, who were to chuse and correct their Laws for the Twelve Ta∣bles, an Absolute Power, without any Appeal to the People.

(5.) The reason why Laws have been also made by Kings, was this; when Kings were either busied with Wars, or distracted with publick Cares, so that e∣very private Man could not have Access to their Persons, to learn their Wills and Pleasure; then of necessity were Laws invented, that so every particular Sub∣ject might find his Prince's Pleasure de∣cyphered to him in the Tables of his Laws, that so there might be no need to resort unto the King; but either for the Interpretation or Mitigation of Ob∣scure Page  93 or Rigorous Laws, or else in new Cases, for a Supplement where the Law was Defective. By this means both King and People were in many things eased: First, The King by giving Laws doth free himself of great and intolera∣ble Troubles, as Moses did himself by chusing Elders. Secondly, The Peo∣ple have the Law as a Familiar Admoni∣sher and Interpreter of the King's Plea∣sure, which being published throughout the Kingdom, doth represent the Pre∣sence and Majesty of the King: Also the Judges and Magistrates, (whose help in giving Judgment in many Causes Kings have need to use) are restrained by the Common Rules of the Law from using their own Liberty to the Injury of others, since they are to judge according to the Laws, and not follow their own Opinions.

(6.) Now albeit Kings, who make the Laws, be (as King James teacheth us) above the Laws; yet will they Rule their Subjects by the Law; and a King, governing in a setled Kingdom, leaves to be a King, and degenerates into a Tyrant, so soon as he seems to Rule according to Page  94 his Laws; yet where he sees the Laws Rigorous or Doubtful, he may miti∣gate and interpret. General Laws made in Parliament, may, upon known Re∣spects to the King, by his Authority be Mitigated or Suspended, upon Causes only known to him. And although a King do frame all his Actions to be ac∣cording to the Laws, yet he is not bound thereto, but at his good Will, and for good Example: Or so far forth as the General Law of the Safety of the Com∣mon-weal doth naturally bind him; for in such sort only Positive Laws may be said to bind the King, not by being Positive, but as they are naturally the Best or Only Means for the Preservati∣on of the Common-Wealth. By this means are all Kings, even Tyrants and Conquerours, bound to preserve the Lands, Goods, Liberties, and Lives of all their Subjects, not by any Munici∣pial Law of the Land, so much as the Natural Law of a Father, which binds them to ratifie the Acts of their Fore∣Fathers and Predecessors, in things ne∣cessary for the Publick Good of their Subjects.

Page  95(7.) Others there be that affirm, that although Laws of themselves do not bind Kings, yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms. How far this is true, let us but examine the Oath of the Kings of England at their Coronation; the words whereof are these, Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice, and to use Discretion with Mercy and Ve∣rity? Art thou pleased that our upright Laws and Customs be observed, and dost thou promise that those shall be protected and maintained by thee? These two are the Articles of the King's Oath, which concern the Laity or Subjects in Gene∣ral; to which the King answers affir∣matively. Being first demanded by the Arch-Bishop of Canterbury, Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times, granted from God, by just and devout Kings, unto the English Nation, by Oath unto the said Peo∣ple. Especially the Laws, Liberties, and Cu∣stoms granted unto the Clergy and Laity by the famous King Edward. We may observe, in these Words of the Articles Page  96 of the Oath, that the King is required to observe not all the Laws, but only the Upright, and that with Discretion and Mercy. The Word Upright can∣not mean all Laws, because in the Oath of Richard the Second, I find Evil and Unjust Laws mentioned, which the King swears to abolish; and in the Old Abridgment of Statutes, set forth in Hen∣ry the Eighth's days, the King is to swear wholly to put out Evil Laws; which he cannot do, if he be bound to all Laws. Now what Laws are Upright and what Evil, who shall Judge but the King, since he swears to administer Upright Justice with Discretion and Mercy (or as Bracton hath it) aequitatem praecipiat, & misericordiam. So that in effect, the King doth swear to keep no Laws, but such as in His Judgment are Upright, and those not literally always, but accord∣ing to Equity of his Conscience, joyn'd with Mercy, which is properly the Of∣fice of a Chancellour rather than of a Judge; and if a King did strictly swear to observe all the Laws, he could not without Perjury give his Consent to the Repealing or Abrogating of any Sta∣tute by Act of Parliament, which Page  97 would be very mischievable to the State.

But let it be supposed for Truth, that Kings do swear to observe all the Laws of their Kingdom, yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs. Now if a private person make a Con∣tract, either with Oath or without Oath, he is no further bound than 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 Error, or Force, or Fear induced him thereunto: Or if it be hurtful or grievous in the performance. Since the Laws in many Cases give the King a Prerogative above common Per∣sons, I see no Reason why he should be denied the Priviledg which the mean∣est of his Subjects doth enjoy.

Here is a fit place to examine a Que∣stion which some have moved, Whe∣ther it be a Sin for a Subject to disobey the King, if he Command any thing con∣trary to his Laws? For satisfaction in this Page  98 point, we must resolve that not only in Humane Laws, but even in Divine, a thing may be commanded contrary to Law, and yet Obedience to such a Com∣mand is necessary. The sanctifying of 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 Unlawfull in the Master; because the Servant hath no Authority or Liberty to examine and judge whe∣ther his Master sin or no in so com∣manding: For there may be a just Cause for a Master to keep his Servant from Church, as appears Luke 14.5. yet it is not fit to tie the Master to acquaint his Servant with his secret Counsels, or pre∣sent Necessity: And in such Cases, the Servant's not going to Church, becomes the Sin of the Master, and not of the Servant. The like may be said of the King's commanding a Man to serve him in the Wars, he may not examine whe∣ther the War be Just or Unjust, but must Obey, since he hath no Commission to Judge of the Titles of Kingdoms, or Causes of War; nor hath any Subject Page  99 Power to Condemn his King for breach of his own Laws.

(8.) Many will be ready to say, It is a Slavish and Dangerous Condition to be subject to the Will of any One Man, who is not subject to the Laws. But such Men consider not, 1. That the Pre∣rogative of a King is to be above all Laws, for the good only of them that are under the Laws, and to defend the Peoples Li∣berties, as His Majesty graciously affirm∣ed in His Speech after His last Answer to the Petition of Right: Howsoever some are afraid of the Name of Prerogative, yet they may assure themselves the Case of Subjects would be desperately mise∣rable without it. The Court of Chancery it self is but a Branch of the King's Pre∣rogative, to Relieve men against the in∣exorable rigour of the Law, which with∣out it is no better than a Tyrant, since Summum Jus, is Summa Injuria. General Pardons, at the Coronation and in Parlia∣ments, are but the Bounty of the Prero∣gative. 2. There can be no Laws with∣out a Supreme Power to command or make them. In all Aristocraties the No∣bles are above the Laws, and in all Demo∣cratiesPage  100 the People. By the like Reason, in a Monarchy the King must of neces∣sity be above the Laws; there can be no Soveraign Majesty in him that is un∣der them; that which giveth the very Being to a King, is the Power to give Laws; without this Power he is but an Equivocal King. It skills not which way Kings come by their Power, whether by Election, Donation, Succession, or by any other means; for it is still the manner of the Government by Supreme Power that makes them properly Kings, and not the means of obtaining their Crowns. Neither doth the Diversity of Laws, nor contrary Customs, whereby each Kingdom differs from another, make the Forms of Common-Weal different, unless the Power of making Laws be in several Subjects.

For the Confirmation of this point, Aristotle saith, That a perfect Kingdom is that wherein the King rules all things according to his Own Will, for he that is called a King according to the Law, makes no kind of Kingdom at all. This it seems also the Romans well understood to be most necessary in a Monarchy; for Page  101 though they were a People most greedy of Liberty, yet the Senate did free Augu∣stus from all Necessity of Laws, that he might be free of his own Authority, and of absolute Power over himself and over the Laws, to do what he pleased, and leave undone what he list, and this Decree was made while Augustus was yet absent. Accordingly we find, that Ʋlpian the great Lawyer delivers it for a Rule of the Civil Law; Princeps, Le∣gibus solutus est, The Prince is not bound by the Laws.

(9.) If the Nature of Laws be advi∣sedly weighed, the Necessity of the Prin∣ces being above them may more mani∣fest it self; we all know that a Law in General is the command of a Superior Power. Laws are divided (as Bellarmine divides the Word of God) into written and unwritten, not for that it is not writ∣ten at all, but because it was not writ∣ten by the first Devisers or Makers of it. The Common Law (as the Lord Chan∣cellor Egerton teacheth us) is the Com∣mon Custom of the Realm. Now concern∣ing Customs, this must be considered, that for every Custom there was a time when it was no Custom; and the first Page  102 President we now have, had no Presi∣dent when it began; when every Cu∣stom began, there was something else than Custom that made it lawful, or else the beginning of all Customs were unlawful. Customs at first became Law∣ful only by some Superiour, which did either Command or Consent unto their beginning. And the first Power which we find (as it is confessed by all men) is the Kingly Power, which was both in this and in all other Nations of the World, long before any Laws, or any other kind of Government was thought of; from whence we must necessarily infer, that the Common Law it self, or Com∣mon Customs of this Land, were Origi∣nally the Laws and Commands of Kings at first unwritten.

Nor must we think the Common Customs (which are the Principles of the Common Law, and are but few) to be such, or so many, as are able to give special Rules to determine every parti∣cular Cause. Diversity of Cases are in∣finite, and impossible to be regulated by any Law; and therefore we find, even in the Divine Laws which are delivered Page  103 by Moses, there be only certain Princi∣pal Laws, which did not determine, but only direct the High-priest or Magi∣strate, whose Judgment in special Cases did determine, what the General Law intended. It is so with the Common Law, for when there is no perfect Rule, Judges do resort to those Principles, or Common-Law Axiomes, whereupon former Judgments, in Cases somewhat like, have been delivered by former Judges, who all receive Authority from the King, in his Right and Name to give Sentence according to the Rules and Presidents of Antient Times: And where Presidents have failed, the Judg∣es have resorted to the General Law of Reason, and accordingly given Judg∣ment, without any Common Law to di∣rect them. Nay, many times, where there have been Presidents to direct, they, upon better Reason only, have changed the Law, both in Causes Crimi∣nal and Civil, and have not insisted so much on the Examples of former Judg∣es, as examined and corrected their Rea∣sons; thence it is that some Laws are now obsolete and out of use, and the Practice quite contrary to what it was in Page  104 Former Times, as the Lord Chancel∣lour Egerton proves, by several Instan∣ces.

Nor is this spoken to derogate from the Common Law, for the Case standeth so with the Laws of all Nations, although some of them have their Laws and Prin∣ciples written and established: for wit∣ness to this, we have Aristotle his Testi∣mony in his Ethiques, and in several places in his Politiques; I will cite some of them: Every Law, saith he, is in the General, but of some things there can be no General Law — when therefore the Law speaks in General, and something falls out after besides the General Rule: Then it is fit that what the Law maker hath omitted, or where he hath erred by speaking general∣ly, it should be corrected or supplied, as if the Law-maker himself were present to Ordain it. The Governour, whether he be one Man, or more, ought to be Lord over all those things whereof it was impossible the Law should exactly speak, because it is not easie to comprehend all things un∣der General Rules—whatsoever the Law cannot determine, it leaves to the Gover∣nours to give Judgment therein, and per∣mits Page  105 them to rectify whatsoever upon Try∣al thy find to be better than the Written Laws.

Besids, all Laws are of themselves dumb, and some or other must be trust∣ed with the Application of them to Par∣ticulars, by examining all Circumstances, to pronounce when they are broken, or by whom. This work of right Ap∣plication of Laws is not a thing easie or obvious for ordinary capacities; but re∣quires profound Abilities of Nature, for the beating out of the Truth, witness the Diversity, and sometimes the contrarie∣ty of Opinions of the learned Judges, in some difficult Points.

(10) Since this is the common Con∣dition of Laws, it is also most reasona∣ble that the Law-maker should be trust∣ed with the Application or Interpreta∣tion of the Laws; and for this cause an∣ciently the Kings of this Land have sitten personally in Courts of Judica∣ture, and are still representatively pre∣sent in all Courts; the Judges are but substituted, and called the King's Justices, and their Power ceaseth when the King is in place. To this purpose Bracton, that learned Chief Justice, in the Page  106 Reign of Henry the Third, saith in ex∣press terms; In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected; since it is his part to interpret, who made the Law; for, as he saith in another place, Rex, & non Alius debet Judicare, si So∣lus ad id sufficere possit, &c. The King, and no body else, ought to give Judgment, if he were able, since by virtue of his Oath he is bound to it; therefore the King ought to exercise Power as the Vicar or Minister of God: But if our Lord the King be not able to determine every Cause, to ease part of his Pains, by distributing the Burthen to more Persons, he ought to chuse Wise-Men fearing God, &c. and make Justices of them. Much to the same purpose are the words of Edward the First, in the be∣ginning of his Book of Laws, written by his appointment by John Briton, Bishop of Hereford: We will, saith he, that Our own Jurisdiction be above all the Jurisdi∣ctions of our Realm, so as in all manner of Felonies, Trespasses, Contracts, and in all other Actions personal or real, We have Power to yield such Judgements as do appertain without other Process, whereso∣ever we know the Right Truth as Judges.Page  107 Neither may this be taken to be meant of an imaginary Presence of the King's Per∣son in His Courts, because he doth im∣mediately after in the same place seve∣rally set forth by themselves the Juris∣dictions of his Ordinary Courts; but must necessarily be understood of a Ju∣risdiction remaining in the King's Roy∣al Person. And that this then was no New-made Law, or first brought in by the Norman Conquests, appears by a Saxon Law made by King Edgar, in these words, as I find them in Mr. Lambert. Nemo in lite Regem appellato, nisi quidem domi Justitiam consequi, aut impetrare non poterit, sin summo jure domi urgeatur, ad Regem, ut is Onus aliqua ex parte Alle∣vet, provocato. Let no man in Suit ap∣peal to the King, unless he may not get Right at home; but if the Right be too heavy for him, then let him go to the King to have it eased.

As the Judicial Power of Kings was exercised before the Conquest, so in those setled times after the Conquest, where∣in Parliaments were much in use, there was a High-Court following the King, which was the place of Soveraign Ju∣stice, Page  108 both for matter of Law and Con∣science, as may appear by a Parliament in Edward the First's time, taking Or∣der, That the Chancellour and the Justi∣ces of the Bench should follow the King, to the end that he might have always at hand Able Men for his Direction in Suits that came before Him. And this was af∣ter the time that the Court of Common-Pleas was made stationary, which is an Evidence that the King reserved a Sove∣raign Power, by which he did supply the Want, or correct the Rigour of the Common Law; because the Positive Law, being grounded upon that which happens for the most part, cannot fore∣see every particular which Time and Ex∣perience brings forth.

(12.) Therefore though the Common Law be generally Good and Just, yet in some special Case it may need Correcti∣on, by reason of some considerable Cir∣cumstance falling out, which at the time of the Law-making was not thought of. Also sundry things do fall out, both in War and Peace, that require extraor∣dinary help, and cannot wait for the U∣sual Care of Common Law, the which is Page  109 not performed, but altogether after one sort, and that not without delay of help and expence of time; so that although all Causes are, and ought to be referred to the Ordinary Process of common Law, yet rare matters from time to time do grow up meet, for just Reasons, to be re∣ferred to the aid of the absolute Autho∣rity of the Prince; and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes, and not for restraint of the Absolute Authority, serving only in a few rare and singular Cases: for though the Subjects were put to great dammage by False Accusations and Malicious Suggestions made to the King and His Council, especially during the time of King Edward the Third, whilst he was absent in the Wars in France, in∣somuch as in His Reign divers Statutes were made, That provided none should be put to answer before the King and His Council without due Process; yet it is apparent the necessity of such Pro∣ceedings was so great, that both before Edward the Third's days, and in his time, and after his Death, several Statutes were made, to help and order the Proceedings Page  110 of the King and his Council. As the Parliament in 28. Edw, 1. Cap. 5. did pro∣vide, That the Chancellour and Justices of the King's Bench should follow the King; that so he might have near unto him some that be learned in the Laws, which be able to order all such matters as shall come unto the Court, at all times when need shall re∣quire. By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained, in case the Suggestion to the King proved untrue. Then 38. Edw. 3. Cap. 9. takes away Ta∣liation, and appoints Imprisonment till the King and Party grieved be satisfied. In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expen∣ces are awarded in such Cases. In all these Statutes it is necessarily implyed, that Complaints upon just Causes might be moved before the King and His Coun∣cil.

At a Parliament at Glocester, 2. Ric. 2. when the Commons made Petition, That none might be forced by Writ out of Chan∣cery, or by Privy Seal, to appear before the King and His Council, to answer touch∣ing Free-hold. The King's answer was, He thought it not reasonable that He should Page  111 be constrained to send for his Leiges upon Causes reasonable: And albeit He did not purpose that such as were sent for should an∣swer [Finalment] peremptorily touching their Free-hold, but should be remanded for tryal thereof, as Law required: Pro∣vided always, (saith he) that at the Suit of the Party, where the King and His Council shall be credibly informed, that be∣cause of Maintenance, Oppression, or other Outrages, the Common Law cannot have duly her Course, in such case the Counsel for the Party.

Also in the 13th Year of his Reign when the Commons did pray, that upon pain of Forfeiture, the Chancellour or Council of the King, should not after the end of the Parliament make any Ordi∣nance against the Common Law; the King answered, Let it be used as it hath been used before this time, so as the Rega∣lity of the King be saved, for the King will save His Regalities as His Progeni∣tors have done.

Again, in the 4th year of Henry the Fourth, when the Commons complained against Subpaena's, & other Writs, ground∣ed Page  112 upon false Suggestions; the King an∣swered, That he would give in Charge to His Officers, that they should abstain more than before time they had, to send for His Subjects in that manner. But yet (saith He) it is not Our Intention, that Our Of∣ficers shall so abstain, that they may not send for Our Subjects in Matters and Cau∣ses necessary, as it hath been used in the time our good Progenitors.

Likewise when for the same Cause Complaint was made by the Commons, Anno 3. Hen. 5. the King's Answer was, Le Roy s'advisera, The King will be ad∣vised; which amounts to a Denial for the present, by a Phrase peculiar for the King's denying to pass any Bill that hath passed the Lords and Commons.

These Complaints of the Commons, and the Answers of the King, discover, That such moderation should be used, that the course of the common Law be ordinarily maintained, lest Subjects be convented before the King and his Council without just cause, that the Proceedings of the Council-Table be not upon every slight Suggestion, nor Page  113 to determine finally concerning Free∣hold of Inheritance. And yet that upon cause reasonable, upon credible Informa∣tion, in matters of weight, the King's Regality or Prerogative, in sending for His Subjects, be maintain'd, as of Right it ought, and in former times hath been constantly used.

King Edward the First, finding that Bogo de Clare was discharged of an Accu∣sation brought against him in Parliament, for that some formal Imperfections were found in the Complaint, commanded him nevertheless to appear before Him and His Council, ad faciendum, & recipiendum quod per Regem & ejus Concilium fuerit faciendum; and so proceeded to an Exa∣mination of the whole Cause. 8. Edw. 1.

Edward the Third, In the Star-Cham∣ber▪ (which was the Ancient Council-Chamber at Westminster) upon the Com∣plaint of Elizabeth Audley, commanded James Audley to appear before Him and His Council, and determin'd a Controver∣sy between them, touching Lands con∣tain'd in the Covenants of her Joynture. Rot. Claus. de an. 41. Ed. 3.

Page  114Henry the Fifth, in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence, in the Isle of Thenet in Kent, took order for Sequestring the Profits till the Right were tryed, as well for avoiding the breach of the Peace, as for prevention of waste and spoil. Rot. Patin. Anno 6. Hen. 5.

Henry the Sixth commanded the Ju∣stices of the Bench to stay the Arraign∣ment of one Verney of London, till they had other commandment from Him and His Council, because Verney, being indebt∣ed to the King and others, practised to be Indicted of Felony, wherein he might have his Clergy, and make his Purgation, of intent to defraud his Creditors. 34. Hen. 6 Rot. 37. in Banco Regis.

Edward the Fourth and His Council in the Star-Chamber, heard the Cause of the Master and Poor Brethren of S. Leonards in York, complaining, that Sir Huge Hast∣ings, and others, withdrew from them a great part of their Living, which con∣sisted chiefly upon the having of a Page  115 Thrave of Corn of every Plough-Land within the Counties of York, Westmer∣land, Cumberland, and Lancashire. Rot. Paten. de Anno 8 Ed. 4. Part 3. Memb. 14.

Henry the Seventh and His Council, in the Star-Chamber, decreed, That Margery and Florence Becket should sue no fur∣ther in their Cause against Alice Radley, Widow, for Lands in Wolwich and Plum∣stead in Kent; for as much as the Matter had been heard first before the Council of King Edw. 4. after that before the President of the Requests of that King, Hen. 7. and then lastly, before the Coun∣cil of the said King. 1 Hen. 7.

What is hitherto affirmed of the De∣pendency and Subjection of the Com∣mon Law to the Soveraign Prince, the same may be said as well of all Statute Laws; for the King is the sole immedi∣ate Author, Corrector, and Moderator of them also; so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power, which Kings have over their People, by right of Father-hood, but rather are an Argument to strengthen the truth of Page  116 it; for Evidence whereof, we may in some points consider the nature of Par∣liaments, because in them only all Sta∣tutes are made.

(12.) Though the Name of Parlia∣ment (as Mr. Cambden saith) be of no great Antiquity, but brought in out of France, yet our Ancestors, the English Saxons, had a Meeting, which they cal∣led, The Assembly of the Wise; termed in Latine, Conventum Magnatum, or, Prae∣sentia Regis, Procerum{que} Prelaterum{que} col∣lectorum. The Meeting of the Nobili∣ty, or the Presence of the King, Prelates, and Peers Assembled; or in General, Magnum Concilium, or Commune Conci∣lium; and many of our Kings in elder times made use of such great Assemblies for to consult of important Affairs of State; all which Meetings, in a General Sense, may be termed Parliaments.

Great are the Advantages which both the King and People may receive by a well-ordered Parliament; there is no∣thing more expresseth the Majesty and Supream Power of a King, than such an Assembly, wherein all his People ac∣knowledg Page  117 him for Soveraign Lord, and make all their Addresses to him by hum∣ble Petition and Supplication; and by their Consent and Approbation do strengthen all the Laws, which the King, at their Request and by their Advice and Ministry, shall ordain. Thus they facilitate the Government of the King, by making the Laws unquestionable, ei∣ther to the Subordinate Magistrates, or refractory Multitude. The benefit which accrews to the Subject by Parliaments, is, That by their Prayers and Petitions Kings are drawn many times to redress their just Grievances, and are overcome by their Importunity to grant many things which otherwise they would not yield unto; for the Voice of a Multi∣tude is easilier heard. Many Vexations of the People are without the know∣ledg of the King; who in Parliament seeth and heareth his People himself; whereas at other times he commonly useth the Eyes and Ears of other Men.

Against the Antiquity of Parliaments we need not dispute, since the more an∣cient they be, the more they make for the Honour of Monarchy; yet there be Page  118 certain Circumstances touching the Forms of Parliaments, which are fit to be considered.

First, We are to remember, that un∣til about the time of the Conquest, there could be no Parliaments assembled of the General States of the whole Kingdom of England, because till those days we can∣not learn it was entirely united into one Kingdom; but it was either divided in∣to several Kingdoms, or governed by se∣veral Laws. When Julius Caesar landed, he found 4 Kings in Kent; and the British Names of Dammonii, Durotriges, Belgae, Attrebatii, Trinobantes, Iceni, Silures, and the rest, are plentiful Testimonies of the several Kingdoms of Britains, when the Romans left us. The Saxons divided us into 7 Kingdoms: when these Saxons were united all into a Monarchy, they had always the Danes their Compani∣ons, or their Masters in the Empire, till Edward the Confessors Days, since whose time the Kingdom of England hath con∣tinued United, as now it doth: But for a thousand Years before we cannot find it was entirely settled, during the time of any one King's Reign. As under the Page  119Mercian Law: The West Saxons were confined to the Saxon Laws; Essex, Norfolk, Suffolk, and some other Places, were vexed with Danish Laws; The Northumbrians also had their Laws a∣part. And until Edward the Confessor's Reign, who was next but one before the Conqueror, the Laws of the Kingdom were so several and uncertain, that he was forced to cull a few of the most in∣different and best of them, which were from him called St. Edward's Laws: Yet some say that Edgar made those Laws, and that the Confessor did but restore and mend them. Alfred also gathered out of Mulmutius Laws, such as he translated into the Saxon Tongue. Thus during the time of the Saxons, the Laws were so variable, that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom.

(13) A second Point considerable is, Whether in such Parliaments, as was in the Saxon's times, the Nobility and Clergy only were of those Assem∣blies, or whether the Commons were also called? Some are of Opinion, that though none of the Saxon Laws do Page  120 mention the Commons, yet it may be gathered by the word Wisemen, the Commons are intended to be of those Assemblies, and they bring (as they conceive) probable arguments to prove it, from the Antiquity of some Bur∣roughs that do yet send Burgesses, and from the Proscription of those in Anci∣ent Demesne, not to send Burgesses to Parliament. If it be true, that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns, yet it may be doubted, whether other Kingdoms had the same usage; but sure it is, that during the Heptarchy, the People could not Elect any Knights of the Shire, because England was not then divided into Shires.

On the contrary, there be of our Histo∣rians who do affirm, that Henry the First caused the Commons first to be Assem∣bled by Knights and Burgesses of their own Appointment, for before his Time only certain of the Nobility and Pre∣lates of the Realm were called to Con∣sultation about the most Important Af∣fairs of State. If this Assertion be true, it seems a meer matter of Grace of this Page  121 King, and proves not any Natural Right of the People, Originally to be admitted to chuse their Knights and Burgesses of Parliament; though it had been more for the Honour of Parliaments, if a King, whose Title to the Crown had been better, had been Author of the Form of it; because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and El∣der Brother, by taking the Oaths of the Nobility in Parliament: and getting the Crown to be setled upon his Chil∣dren. And as the King made use of the People, so they, by Colour of Parliament, served their own turns; for after the E∣stablishment of Parliaments by strong hand, and by the Sword, they drew from him the Great Charter, which he grant∣ed the rather to flatter the Nobility and People, as Sir Walter Raleigh in his Dia∣logue of Parliaments doth affirm, in these words: The great Charter was not Origi∣nally granted Legally and Freely; for Hen∣ry the First did but Ʋsurp the Kingdom, and therefore, the better to assure himself against Robert his Elder Brother, he flat∣tered the Nobility and People with their Charters; yea, King John, that Confirmed Page  122 them, had the like respect, for Arthur Duke of Britain was the undoubted Heir of the Crown, upon whom King John Ʋsurped, and so to conclude, these Charters had their Original from Kings de facto, but not de jure— the Great Charter had first an ob∣scure Birth by Ʋsurpation, and was se∣condly fostered and shewed to the World by Rebellion.

(15.) A third consideration must be, that in the former Parliaments, institu∣ted and continued since King Henry the First's time, is not to be found the Usage of any natural Liberty of the People; for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King, and not the Liberties of Nature to the People; for if the Liberty were natural, it would give Power to the Multitude to assemble themselves When and Where they please, to bestow Soveraignty, and by Pactions to limit and direct the Exercise of it. Whereas, the Liberties of Favour and Grace, which are claimed in Parliaments, are restrained both for Time, Place Persons, and other Circumstances, to the Sole Pleasure of the King. The People can∣not Page  123 assemble themselves, but the King, by his Writs, calls them to what place he pleases; and then again scatters them with his Breath at an instant, without a∣ny other Cause shewed than his Will. Neither is the whole summoned, but only so many as the King's Writs ap∣point. The prudent King Edward the First, summoned always those Barons of ancient Families, that were most wise to his Parliament, but omitted their Sons after their Death, if they were not an∣swerable to their Parents in Understand∣ing. Nor have the whole People Voi∣ces in the Election of Knights of the Shire or Burgesses, but only Freehold∣ers in the Counties, and Freemen in the Cities and Burroughs; yet in the City of Westminster all the House-holders, though they be neither Freemen nor Free-holders, have Voices in their Ele∣ction of Burgesses. Also during the time of Parliament, those Privileges of the House of Commons, of freedom of Speech, power to punish their own Members, to examine the Proceedings and Demeanour of Courts of Justice and Officers, to have access to the King's Person, and the like, are not due by a∣any Page  124 Natural Right, but are derived from the Bounty or Indulgence of the King, as appears by a solemn Recognition of the House: for at the opening of the Parliament, when the Speaker is pre∣sented to the King, he, in the behalf and name of the whole House of Commons, humbly craves of His Majesty, That He would be pleased to grant them their Accustomed Liberties of freedom of Speech, of access to his Person, and the rest. These Privileges are granted with a Condition implyed, That they keep themselves within the Bounds and Li∣mits of Loyalty and Obedience; for else why do the House of Commons in∣flict Punishment themselves upon their own Members for transgressing in some of these points; and the King, as Head, hath many times punished the Members for the like Offences. The Power which the King giveth, in all his Courts, to his Judges or others to punish, doth not ex∣clude Him from doing the like, by way of Prevention, Concurrence, or Evocation, even in the same point which he hath given in charge by a delegated Power; for they who give Authority by Com∣mission, do always retain more than Page  125 they grant: Neither of the two Houses claim an Infallibility of not Erring, no more than a General Council can. It is not impossible but that the greatest may be in Fault, or at least interested or engaged in the Delinquency of one par∣ticular Member. In such Cases it is most proper for the Head to correct, and not to expect the Consent of the Members, or for the Parties peccant to be their own Judges. Nor is it needful to confine the King, in such Cases, within the Circle of any one Court of Justice, who is Su∣pream Judg in all Courts. And in rare and new Cases, rare and new Remedies must be sought out; for it is a Rule of the Common Law, In novo Casu, novum Remedium est apponendum: and the Sta∣tute of Westminst. 2. cap. 24. giveth Power, even to the Clarks of the Chan∣cery, to make New Forms of Writs in New Cases, lest any Man that came to the King's Court of Chancery for help, should be sent away without Remedy: A President cannot be found in every Case; and of things that happen seldom, and are not common, there cannot be a Common Custom. Though Crimes Exorbi∣tant do pose the King and Council in find∣ing Page  126 a President for a Condigne Punish∣ment, yet they must not therefore pass unpunished.

I have not heard that the People, by whose Voices the Knights and Burgesses are chosen, did ever call to an account those whom they had Elected; they nei∣ther give them Instructions or Directi∣ons what to say, or what to do in Parlia∣ment, therefore they cannot punish them when they come home for doing amiss: If the People had any such Power over their Burgesses, then we might call it, The Natural Liberty of the People, with a mischief. But they are so far from punishing, that they may be punish∣ed themselves for intermedling with Parliamentary Business; they must on∣ly chuse, and trust those whom they chuse to do what they list; and that is as much liberty as many of us deserve, for our irregular Elections of Burgesses.

(15) A fourth point to be consider'd, is, That in Parliament all Statutes or Laws are made properly by the King a∣lone, at the Rogation of the People, as His Majesty King James, of happy Me∣mory, Page  127 affirms in his true Law of free Mo∣narchy; and as Hooker teacheth us, That Laws do not take their constraining force from the Quality of such as devise them, but from the Power that doth give them the Strength of Laws: Le Roy le Veult, the King will have it so, is the Interpretive Phrase pronounced at the King's passing of every Act of Parliament: And it was the ancient Custom for a long time, till the days of Henry the Fifth, that the Kings, when any Bill was brought unto them that had passed both Houses, to take and pick out what they liked not, and so much as they chose, was enacted for a Law: but the Custom of the later Kings hath been so gracious, as to allow always of the entire Bill as it hath passed both Houses.

(16.) The Parliament is the King's Court, for so all the oldest Statutes call it, the King in His Parliament: But neither of the two Houses are that Su∣pream Court, nor yet both of them to∣gether; they are only Members, and a part of the Body, whereof the King is the Head and Ruler. The King's Go∣verning of this Body of the ParliamentPage  128 we may find most significantly proved both by the Statutes themselves, as also by such Presidents as expresly shew us, how the King, sometimes by himself, sometimes by his Council, and other-times by his Judges, hath over-ruled and directed the Judgments of the Houses of Parliament: for the King, we find that Magna Charta, and the Charter of Forrests, and many other Statutes about those times, had only the Form of the Kings Letters-Patents, or Grants under the Great Seal, testifying those Great Liberties to be the sole Act and Bounty of the King: The words of Magna Charta begin thus; Henry, by the Grace of God, &c. To all our Arch-Bishops, &c. and Our Faithful Subjects Greeting: Know ye, that We, of Our meer free-Will, have granted to all Free-men these Liberties. In the same style goeth the Charter of Forrests, and other Sta∣tutes. Statutum Hiberniae, made at West∣minster, 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard, Son of Maurice, Justice of Ireland. The Sta∣tute de anno Bissextili begins thus, The King to His Justices of the Bench, Greet∣ing, &c. Explanationes Statuti Glocestriae,Page  129 made by the King and his Justices only, were received always as Statutes, and are still Printed amongst them.

The Statute made for Correction of the 12th Chapter of the Statute of Glocester, was Signed under the Great Seal, and sent to the Justices of the Bench, after the manner of a Writ Pa∣tent, with a certain Writ closed, dated by the King's Hand at Westminster, re∣quiring that they should do, and execute all and every thing contained in it, although the same do not accord with the Statute of Glocester in all things.

The Statute of Rutland, is the King's Letters to his Treasurer and Barons of his Exchequer, and to his Chamberlain.

The Statute of Circumspecte Agis runs, The King to his Judges sendeth Greeting.

There are many other Statutes of the same Form, and some of them which run only in the Majestick Terms of, The King Commands, or, The King Wills, or, Our Lord the King hath Established,Page  130 or, Our Lord the King hath ordained: or, His Especial Grace hath granted: With∣out mention of Consent of the Com∣mons or People; insomuch that some Statutes rather resemble Proclamations, than Acts of Parliament: And indeed some of them were no other than meer Proclamations; as the Provisions of Mer∣ton, made by the King at an Assembly of the Prelates and Nobility, for the Coro∣nation of the King and his Queen Eleanor, which begins, Provisum est in Curia Do∣mini Regis apud Merton. Also a Provision was made 19. Hen. 3. de Assisa ultimae Prae∣sentationis, which was continued and al∣lowed for Law, until Tit. West. 2. an. 13. Ed. 1. cap. 5. which provides the contrary in express words: This Provision begins, Pro∣visum fuit coram Dom. Rege, Archiepiscopis, Episcopis, & Baronibus, quod, &c. It seems Origanally the difference was not great between a Proclamation and a Statute; this latter the King made by Common Council of the Kingdom. In the former he had but the advice only of his great Council of the Peers, or of his Privy Council only. For that the King had a great Council, besides his Parliament, ap∣pears by a Record of 5. Hen. 4. about Page  131 an Exchange between the King and the Earl of Northumberland: Whereby the King promiseth to deliver to the Earl Lands to the value, by the Advice of Parliament, or otherwise by the Advice of his Grand Council, and other Estates of the Realm, which the KING will assemble, in case the Parliament do not meet.

We may find what Judgment in la∣ter times Parliaments have had of Pro∣clamations, by the Statute of 31. of Hen. cap. 8. in these words: Forasmuch as the King, by the Advice of his Council, hath set forth Proclamations, which ob∣stinate Persons have contemned; not con∣sidering what a King by his Royal Power may do: Considering that sudden Causes and Occasions fortune many times, which do require speedy Remedies, and that by abiding for a Parliament, in the mean time might happen great Prejudice to en∣sue to the Realm: And weighing also, that his Majesty, which by the Kingly and Re∣gal Power given him by God, may do ma∣ny things in such Cases, should not be dri∣ven to extend the Liberties, and Supre∣mity of his Regal Power and Dignity, by Page  132 willfulness of froward Subjcts: It is there∣fore thought fit, that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People, and defence of his Royal Dignity, as necessity shall require.

This Opinion of a House of Parlia∣ment was confirmed afterwards by a second Parliament, and the Statute made Proclamations of as great Validi∣ty, as if they had been made in Parlia∣ment. This Law continued until the Government of the State came to be un∣der a Protector, during the Minority of Edward the Sixth, and in his first Year it was Repealed.

I find also, that a Parliament in the 11th Year of Henry the Seventh, did so great Reverence to the Actions, or Or∣dinances of the King, that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King, although by a Statute made not long before all Benevolences were Damned and Annulled for ever.

Mr. Fuller, in his Arguments against Page  133 the proceedings of the High-Comissi∣on Court, affirms, that the Statute of 2 H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects, was made without the Assent of the Commons, because they are not mentioned in the Act. If this Argu∣ment be good, we shall find very ma∣ny Statutes of the same kind, for the Assent of the Commons was seldom mentioned in the Elder Parliaments. The most usual Title of Parliaments in Edward the 3d, Rich. 2. the three Hen∣ries 4, 5, 6. in Edw. 4. and Rich. 3. days, was: The King and his Parliament, with the Assent of the Prelates, Earls and Barons, and at the Petition, or at the special Instance of the Commons, doth Ordain.

The same Mr. Fuller saith, that the Statute made against Lollards, was with∣out the Assent of the Commons, as ap∣pears by their Petition in these Words, The Commons beseech, that whereas a Sta∣tute was made in the last Parliament, &c. which was never Assented nor Granted by the Commons, but that which was done therein, was done without their Assent.

Page  134(17.) How far the King's Council hath directed and swayed in Parliament, hath in part appeared by what hath been already produced. For further Evi∣dence, we may add the Statute of West∣minster: The first which saith, These be the Acts of King Edw. 1. made at his first Parliament General, by his Council, and by the Assent of Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm, &c. The Statute of Bygamy saith, In presence of certain Reverend Fa∣thers, Bishops of England, and others of the King's Council, forasmuch as all the King's Council, as well Justices as others, did agree that they should be put in writing, and observed. The Statute of Acton Bunnel saith, The King, for Himself, and by His Council, hath Ordaind and Established.

In Articuli super Chartas; when the Great Charter was confirmed, at the Re∣quest of his Prelates, Earls and Barons, we find these Passages. 1. Nevertheless the King and his Council do not intend by reason of this Statute to diminish the King's Right, &c. 2. And notwithstanding all these things before-mentioned, or any part Page  135 of them; both the King and his Council, and all they that were present at the making of this Ordinance, will and intend that the Right and Prerogative of his Crown shall be saved to him in all things. Here we may see in the same Parliament the Char∣ter of the Liberties of the Subjects con∣firmed, and a saving of the King's Pre∣rogative: Those times neither stumbled at the Name, nor conceived any such Antipathy between the Terms, as should make them incompatible.

The Statute of Escheators hath this Title, At the Parliament of our Soveraign Lord the King, by his Council it was a∣greed, and also by the King himself com∣manded. And the Ordinance of Inquest goeth thus, It is agreed and ordained by the King himself, and all his Council.

The Statute made at York 9. Edw. 3. saith, Whereas the Knights, Citizens, and Burgesses desired our Soveraign Lord the King in his Parliament, by their Petition, that for his Profit, and the Commodity of his Prelates, Earls, Barons, and Com∣mons, it may please him to provide reme∣dy; our Soveraign Lord the King desiring Page  136 the profit of his People by the assent of his Prelates, Earls, Barons, and other No∣bles of his Council being there, hath or∣dained.

In the Parliament primo Edwardi the Third, where Magna Charta was con∣firmed, I find this Preamble, At the Re∣quest of the Commonalty by their Petition made before the King and His Council in Parliament, by the assent of the Prelates, Earls, Barons, and other Great Men as∣sembled, it was Granted.

The Commons presenting a Petition unto the King, which the King's Coun∣cil did mislike, were content thereupon to mend and explain their Petition; the Form of which Petition is in these words, To their most redoubted Soveraign Lord the King, praying the said Commons, That whereas they have pray'd Him to be dis∣charged all manner of Articles of the Eyre, &c. Which Petition seemeth to His Council to be prejudicial unto Him, and in Disinherison of His Crown, if it were so generally granted. His said Commons not willing nor desiring to demand things of Him, which should fall in Disinherison of Page  137 Him or His Crown perpetually, as of Es∣cheators, &c. but of Trespasses, Misprisions, Negligences, and Ignorances, &c.

In the time of Henry the Third, an Order or Provision was made by the King's Council, and it was pleaded at the Common Law in Bar to a Writ of Dower. The Plantiffs Attorney could not deny it, and thereupon the Judgment was ideo sine die. It seems in those days an Or∣der of the Council-Board was either par∣cel of the Common-Law, or above it.

The Reverend Judges have had regard in their Proceedings, that before they would resolve or give Judgment in new Cases, they consulted with the King's Privy-Council. In the Case of Adam Brab∣son, who was assaulted by R. W. in the presence of the Justices of Assize at West∣minster, the Judges would have the Advice of the King's Council: For in a like Case, because R. C. did strike a Juror at West∣minster which passed in an Inquest against one of his Friends, It was adjudged by all the Council that his right hand should be cut off, and his Lands and Goods forfeited to the King.

Page  138Green and Thorp were sent by Judges of the Bench to the King's Council, to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amend∣ed in a Writ; and it was answered, that a Word may well be amended, although the Statute speak but of a Letter or Syl∣lable.

In the Case of Sir Tho. Oghtred, Knight, who brought a Formedon against a poor Man and his Wife; they came and yield∣ed to the Demandant, which seemed sus∣pitious to the Court, whereupon Judg∣ment was stayed; and Thorp said, That in the like Case of Giles Blacket, it was spo∣ken of in Parliament, and we were com∣manded, that when any like Case should come, we should not go to Judgment with∣out good advice: therefore the Judges Conclusion was, Sues au Counseil, & com∣ment ils voillet que nous devomus faire, nous volume faire, & auterment nient en cest case. Sue to the Council, and as they will have us to do, we will; and otherwise not in this case.

Page  139(18.) In the last place, we may consi∣der how much hath been attributed to the Opinions of the Kings Judges by Parliaments, and so find, that the King's Council hath guided and ruled the Judges, and the Judges guided the Parliament.

In the Parliament of 28 Hen. 6. The Commons made Suit, That William de la Poole, D. of Suffolk, should be com∣mitted to Prison, for many Treasons and other Crimes. The Lords of the Higher House were doubtful what Answer to give, the Opinion of the Judges was demanded. Their Opinion was, that he ought not to be committed, for that the Commons did not charge him with any par∣ticular Offence, but with General Reports and Slanders. This Opinion was al∣lowed.

In another Parliament, 31. Hen. 6. (which was prorogued) in the Vacation the Speaker of the House of Commons was condemned in a thousand pound dama∣ges, in an Action of Trespass, and was committed to Prison in Execution for the same. When the Parliament was re∣assembled, the Commons made suit to the King and Lords to have their Speaker delivered: the Lords demanded the Page  140 Opinion of the Judges, whether he might be delivered out of Prison by Privilege of Parliament? upon the Judges An∣swer it was concluded, That the Speaker should still remain in Prison, according to the Law, notwithstanding the Privilege of Parliament, and that he was the Speaker. Which Resolution was declared to the Commons by Moyle, the King's Serjeant at Law; and the Commons were com∣manded in the King's Name, by the Bi∣shop of Lincoln, (in the absence of the Arch-bishop of Canterbury, then Chan∣cellour) to chuse another Speaker.

In septimo of Hen. 8. a question was moved in Parliament, Whether Spiritual Persons might be convented before Temporal Judges for Criminal Cases. There Sir John Fineux, and the other Judges, deli∣vered their Opinion, That they might and ought to be: and their Opinion was allowed and maintained by the King and Lords, and Dr. Standish, who before had holden it; the same Opinion was delivered from the Bishops.

If a Writ of Errour be sued in Parlia∣ment upon a Judgment given in the Kings Page  141 Bench, the Lords of the higher House alone, (without the Commons) are to examine the Errours; the Lords are to proceed according to Law, and for their Judgment therein they are to be infor∣med by the Advice and Counsel of the Judges, who are to inform them what the Law is, and so to direct them in their Judgment; for the Lords are not to follow their own Opinions or Dis∣cretions otherwise. So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield, against the Prior and Covent of Newton-Panel, as appeareth by Record. See Flower Dew's Case, P. 1. H. 7. fol. 19.

FINIS.