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CHAP. IV. - James Tyrrell, Patriarcha non monarcha. The Patriarch unmonarch’d 
Patriarcha non monarcha. The Patriarch unmonarch’d: Being Observations on a late treatise and divers other miscellanies, published under the name of Sir Robert Filmer Baronet. In which the falseness of those opinions that would make monarchy Jure Divino are laid open: and the true Principles of Government and Property (especially in our Kingdom) asserted. By a Lover of Truth and of his Country (London: Richard Janeway, 1681).
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I Shall therefore in the next place look over his miscellany observations. (1) Upon divers modern Authors. As for Mr. Hob’s Leviathan. I shall leave them to decide the controversie as they please, and refer it to the readers judgment who hath the better on’t: For in many things I think neither of them are in the right: only it is a hundred pitties Mr. Hobs did not consult the Author, and take in his Patriarcal Hypothesis, and then all his rights of exercising Soveraign Tyranny would have gone down well enough. But for my part I neither like the foundation nor the building which Mr. Hobs hath set up, and therefore shall here leave the Author to build and pull down as he pleases without my intermedling.
And less shall I take upon me to vindicate Milton, since that were at once to defend downright Murder and Rebellion. So that I shall turn over to his observations upon Grotius, an Author of greater learning, and better reputation, than either of them. Where I shall not trouble my self to defend the manifold distinctions,P. 37. and contradictions of the old Civil Lawyers about the Law of Nature, and the Law of Nations; or whether the natural, and Moral law be all one, it is sufficient if Grotius’s didifinition of the law of Nature be true: Nor does it signifie any thing whether the word Law of nature be found in Scripture; Yet I think Thomas Aquinas may well enough be defended, that there is such a thing too proved from 11. Romans v. 14, 15. For though he doth not say expresly that nature is a Law unto them, but they are a law unto themselves, yet certainly Saint Pauls meaning is to the same: For if the Gentiles by nature did the things contained in the law, and so were a law unto themselves, I know not what else he can mean by their doing by nature the things contained in the law, but their living according to the Laws of nature or right reason, which (all rational men are sensible of as soon as they come of an age able to exert this faculty and so) becomes by nature a Law unto themselves; neither can this be custom, since Saint Paul says they do so by nature &c. the things contained in the Law.
Neither do I see any Reason why Grotius is to be blamed for not taking his Hypothesis concerning the Original of Mankind, of Dominion, and Property out of Genesis, since writing of the rights of Peace and War according to the laws of nature, and the general consent of civilised Nations, and not according to any revealed Will, or Law of God he was not bound (nay it was contrary to his purpose) to make use of Scripture farther than to confirm what could be made out from natural reason alone, for to have done otherwise had been to have written a treatise of cases of Conscience in Divinity, and not of right and wrong by the laws of nature. So that though he sometimes make use of Texts of Scripture, yet it is either to strengthen those, or else to answer some objections that may be drawn from thence against his conclusions. And therefore he was not obliged to take notice, whether God gave a begining to Mankind from one man, or more at once, since it might if he had pleased have been either way. Nor yet did he dream of Adams Monarchy over the whole Creation before he had any Subjects to command, nor of his being sole Lord Proprietor and first occupant of all the earth, and of all the Creatures in it, when neither he, nor his Children ever knew, nor made any use of the 1000. parts; of them, these were Notions too fine spun for a man of his solid judgment ever to light on, so therefore we must be beholding to our Author and some English Divines for this admirable discovery. Yet as I doubt not but if that great man were alive, he could well enough defend himself by that great reason, and learning he was Master of, against what ever this Author or some other lesser Scriblers could reasonably object against a work of that nature; yet I doubt not but most of those things the Author observes as errors, may be well enough defended by one of far meaner parts, and less learning than Grotius himself; so that I am not convinced that he either forgets or contradicts himself (as our Author will needs have him) when he refers alieni abstinentia or abstaining from that which belongs to another,P. 59. to consist with a sociable community of all things, because says the Author, where there is Community, there can be neither meum nor tuum, nor yet alienum; and if there be no alienum, there can be no alieni abstinentia, and so likewise by the Law of nature, men ought to stand to bargains, but if all things were common by nature how could there be any bargains.
In answer to which, it will appear that a Propriety of occupancy or the personal possession of things and applying it to the use of one or more men while they have need of it, may very well consist with community, and is absolutely necessary to the preservation of Mankind: As for Example, a Theater is in Common to all that have a right of coming thither, but no man can say that one place in it is more his than anothers, untill he is seated in it, and then that place is so much his, that whilest the Play lasts no man can without injury put him out of it; so likewise supposing the Earth and fruits thereof to have been at first bestowed in Common on all its inhabitants; yet since Gods first Command to man was, encrease and multiply, if he hath a right to perform the end, he hath certainly a right to the means of his preservation, and the propagation of his species, so that though the fruits of the earth, or beasts, for food were all in common, yet when once any man had by his own labour acquired such a proportion of either as would serve the necessities of himself, and Family, they became so much his own, as that no man could without manifest injustice rob him of these necessities of life; and this sort of Community was most Primitive, and Natural, being still retained among the Americans to this day, the rest of the Country lying still in common neither can any Indian prescribe to this or that Tree, that grows out of his own Garden, or to any of the wild Beasts, that this is his more than anothers, until he hath either gathered those or killed the other, and then all look upon it as robbery to take from each other, what they are once possessed of; so likewise in this state of Community, if an Indian make a bargain with another to give him some of his venizon for such a proportion of maiz or roots, there is never an honest Indian but will judge the taker bound to make good his bargain without any dispute; so likewise if any two or more of them make a bargain to go a hunting, or fishing together, upon condition that the Venizon; or Fish that they shall take be equally divided amongst them all, I think every one of them will think himself wronged if one of them cheat or steal from the rest before the quarry come to be divided. So that you may see how true it is which this Author affirms, that if all things were common by nature there could be no contracts, agreeable so which is the Hypothesis layd down by Grotius; ‘that God imediately after the Creation did bestow upon Mankind in general a right over all things of an inferior nature; from whence it came to pass, that presently every man might take what he would for his own occasions, and that such an universal right was instead of property, for what every man so took, another could not take from him but by injury.
But it seems our Author will have this repugnant to Scripture,P. 46. because Mr. Selden in his Mare clausum (from I know not what Tradition of the Rabbins,) ‘supposes that Adam by donation from God, Gen. 1. 28. was made general Lord of all things, not without such a private dominion to himself as (without his grant) did exclude his Children; and that by donation, assignation, or some kind of cession (before he was dead or left any heir to succeed him) his Children had their distinct territorics by private dominion; Abel had his flocks, and pastures for them; Cane had his fields for Corn, and the land of Nod where he built himself a City.
For the confutation of which opinion, I have already proved that Adams absolute dominion over the lives and persons of his Children is not to be deduced from that place of Genesis, before cited by Mr. Selden. Let us now consider whether Adam had by these words an absolute dominion over the world and all things therein, distinct from that of his wife and Children, the words are Male and Female created he them, and God blessed them, and God said unto them, be fruitful and multiiply and replenish the Earth, and subdue it, and have do minion over the Fish of the Sea, and over the Fowel of the Air; and over every living thing that moveth upon the face of the Waters.) From whence it may be observed, 1. That though these words are placed before the making of Eve by a Prolepsis (very usual in Scripture) yet it is apparent that they must have been spoken after it, by these words male and female created he them, since Moses could not speak of a Female untill the woman was made. 2. That this Dominion over the creatures is given unto them both joyntly, the grant of the Dominion as well as the blessing being given alike to them. And God blessed them, and said unto them &c. 3. That it does not appear that this Dominion was personal to Adam and Eve alone, exclusivly to their Children, and descendents, so that none of them could eat, or dispose of any fruits of the Earth for the supplying of the necessities of nature without their leave, for the words are general, Male and Female created he them; and so seem, though spoke to the persons of Adam and Eve as the Protoplasts of Mankind to relate to all the Males, and Females that ever should be born. 4. That this Dominion was not absolute to dispose of the Creatures as they pleased, since the previledge of using them for food was not given until after the flood. So if these words in Genesis do not prove an absolute Dominion in Adam, over all things, I do not see any other place that can, for though it is true that God after the fall made the woman subject to her husband; yet I do not see why she should therefore loose her right of preserving her self by the fruits of the earth, or her using any of the Creatures, suppose the milk of a Cow without her husbands consent. For if Adam had been at any time in an ill humour (all the things in the world being his) should he have but forbid her to eat any of them without his leave, our great Grandmother might have starved without all remedy.
So likewise had he been at any time angry with any of his Sons, and had forbid them to touch so much as an Apple, they must either have perished, or if they had filled their bellys, been at once guilty of Theft, and disobedience; so that it had been in his power without any violence to have taken away their lives when he pleased. But I cannot think it rational, neither is it consonant to Scripture, that God gave Adam such a despotick power over all things; for since all the Children of Adam had as much right to their lives as Adam had himself, it must likewise follow, that they had as good a right to the fruits of the earth, which were then the only means to maintain it, and consequently might have filled their bellies when they pleased with any of the natural products of the earth, without their Fathers leave; for the Psalmist saith, God gave the Earth to the Children of men, that is, not to any one man, nor yet absolutely in common, but to be either divided, or used in common, as they should find it stand best with their convenience and way of living, so that I shall not much dispute with the Author whether Cain, and Abel had their separate Pastures for their Flocks by the Assignment of their Father; though I believe it will be a pretty hard task to prove that Cain, when he ran away for his brothers murder, enjoyed the land of Nod, where he built a City by his fathers settlement. But though Mr. Selden, and the Author agree very well about the distinct Dominion of Adam, yet they do not so concerning that of Noah, and his Sons, whom Mr. Selden, (and I think with very good reason) from Gen. IX. 2. Will have to be joynt Commonors with their Father in the dominion of the world and all its creatures; but the Author says, that the Text doth not warrant it. ‘For though the Sons are mentioned in the blessing, yet it may be best understood with a subordination, or benediction in succession, the blessing might be fulfilled, if the Sons either under or after their Father enjoyed a private dominion: It is apparent that the words rather warrant the contrary. For the Text does not mention any blessing in subordination but is alike in present to Noah and his Sons, for God spake to Noah and to his Sons, and so is their power over the creatures: as appears v. 3. Every moving thing that liveth, shall be meat for you; even as the green herb, that is (the fruits granted to Adam before) have I given you (in the plural number) all things. As for this Authors other argument from the private dominion of Adam, it might be good against Mr. Selden, who had admitted it before, but is none against those that do not believe any such grant. As for Noah’s being sole heir of the world, he takes that for granted (which is no law of nature) that in the state of nature one man is more an heir to his Father (or any other relation) than another; but having confuted that opinion already, I need say no more of it here.
Mr. Seldens account of the original of Propriety, ‘After Noah is, that in distributing Territories, the consent of Mankind passing their promise or compact (which did also bind their Posterity) did intervene so, that men departed from their common right of Communion of those things, which were so distributed to particular Lords and Masters. But the Author replys, that this distribution by the consent of Mankind we must take upon trust, for there is not the least proof of it out of Antiquity: If by Antiquity he means prophane Authors, all of them; both Historians and Poets that have writ of this subject are for a primitive Community of all things, necessary for the life of Man: As any man that considers what the Poets say concerning the golden Age, whose cheif happiness they place in mens enjoyment of the fruits of the earth in Common, nor does Lactantius Li. V. Inst. Cap. 5. one of the learnedst of the Fathers interpret those passages otherwise. If by antiquity he means proof out of Scripture; that neither makes for or against this opinion, the Scriptures not being written to shew us the originals either of Government, or Propriety, any more than to teach men Chymistry or Astronomy, though there be some so sottish to think they thus find some grounds for their Fancies in those studies; yet it appears that the land of Canaan was all, or most of it in Common in Abrahams time, or else he could never have lived, and kept his flocks upon it as a separate Master of a Family, without becoming subject to any other Prince. But however I look upon this Tradition delivered by the Greek and Latin Authors every whit as good as that Jewish one which Mr. Selden quotes out of Eusebius, and Cednenus: though he does not lay any stress upon it. But our Author admits it as an undeniable Record. That Noah himself as Lord of all was Author of the distribution of the world, and of all private dominion, and that by an appointment of an oracle from God he did confirm this Distribution by ‘his last Will and Testament, which at his death he left in the hands of Shem, his eldest Son, 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 ensue. Its not likely that the Antient Jews should know any thing of this Will of Noahs, for if they had, so diligent an Author, and so well versed in the Jewish Antiquities as Josephus, would not have omitted so famous a piece of history. 2. The Rahbins themselves, and consequently our Fathers of the Church are not agreed whether Shem or Japhet were the eldest. For though it is true that St. Austin and those Fathers that follow the vulgar translation, made Shem the eldest; yet St. Chrysostom, and all the Fathers of the Greek Church, who therein follow the LXX. Versior, as of greater Antiquity and Authority, are for Japhets being the eldest brother: So that this Testament being left in Shems hands is a meer Rabinical invention, it being much to be doubted whether Letters, much more Wills in writing were in fashion, in Noah’s days, and if Noah left no Will, which no Jury can now decide) then the world was left to Noah: Sons, Grand-children in Common to be divided according to their several occasions, since they all three had equal right to it: But it seems a weak Hypothelis if it serve the Authors present purpose shall be received, though it contradict his other Principles: For in his Patriarcha and other of his treatises he makes Adam sole Monarch of the World, and that this right descended wholy and entirely to Adam’s right heir; But here we find Noah turns the Propriety and Dominion of the world into an absolute gavel kind, and distributing the Earth among his three Sons, makes them all Heirs and Monarchs alike, so that Shem the elder is here disinhereted not only of his entire Dominion in the world, but also of his natural right of Lording it over the rest of his bretheren, so that whereas the whole world should have been his, if his Father had not made this unlucky Will, he is fain to be content with a third part. I shall pass by other impossibilities in this fancy of Noah’s Will, as how Noah should by revelation make a distribution of the Earth among his Sons, when he never had discovered a hundreth part of it. Josephus, and the Fathers not supposing him ever to have descended from the Mountains of Ararat into the Plains all his life time. But to pass over such Romantick fancies, let us come to the Authors more solid Arguments: Why Dominion, and Property could not be introduced by the voluntary consent of Men, and therefore must needs (P. 70.) have begun from Noahs appointment. Toward the end of these observations he puts this Quere. ‘If it were a thing so voluntary, and at the pleasure of men, when they were free, to put themselves under subjection, why maynot they as voluntarily leave this subjection when they please, and be free again? If they had liberty to change their natural freedom, into a voluntary subjection, there is a 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. To which it may be answered, that the same reason that made men institute civil Government, and Property at first, the same likewise obliges them to maintain it, being once instituted in the state in which they find it: For since the Common good of Mankind, is the highest end a man can propose to himself, and the common good of the City, or Commonwealth where he lives, the greatest subordinate end next to that, and that both Government, and Property were at first introduced by common consent for the good of those humane societies that first agreed to it, every succeeding member of that Commonwealth, or civil society, though born never so many ages after, is as much obliged to the observation thereof, as they that first instituted it; and though some men either by their own fault, and the carelesness, or prodigality of their Ancestors, may perhaps be now under such Circum stances by reason of their poverty, as that civil Government may appear inconvenient for them, and the Property now establisht contrary to their interests, as having perhaps little share either in lands, or goods, he is not therefore at liberty to resist the Government, and to change the course of this Property already establisht; and this is by the laws of nature, without any Divine revelation: since no man can disturb the general Peace of humane society for his own private advantage, or security, without transgressing the natural laws of God, by bringing all things into as far as in him lies out of the setled course they now are in, into a state of Anarchy and consusion, which having once entred into War, this violent usurper of another mans rights can be no more sure to keep what he hath unjustly gotten, than he was, from whom he took its and consequently can never be in security until he have again entred into the same compacts for establishing both Government and Propriety, which his Ancestors did at first: So that there can rationally no peace nor setled security be expected as long as he detains that which he at first took from another by force.
As for the other difficulty he makes,P. 70.How all the men in the world should agree in one mind, and at one instant of time to change the natural Community of all things into a private Domminion, for without such an unanimous consent, it was not possible for Community to be altered; for if but one man in the world had dissented, the alteration had been unjust, because that man by the law of nature had a right to the common use of all things in the world; so that to have given a Propriety of anyone thing to anyother had been to have robbed him of his right to the common use of all things: which objection likewise is thus farther urged by another Author, That the nature of things in common is such, that there is not the least Atome in them, but every member of the Community hath a share in it, so that no man could appropriate, or enclose anything to himself without a wrong to the whole, or if all the rest had agreed to it, that one man who refused this enclosure, might have broken open all theirs.
Which had been no difficulty at all, if the Author had but considered what kind of right God had bestowed upon Mankind at first, which was not an absolute positive, or unalterable communion of every man pro indiviso, every blade of grass in the world: (for such as a Fiction of our Laws suppose, among Tenants in common) for then the Products of the earth could have contributed nothing to the ends for which they were designed by God viz. the preservation and Propagation of the species of Mankind, since no man could have eat anything which another might not have pulled out of his mouth, pretending he could not eat without his leave, because he had a share in it, and so upon this principle, no man now being able to derive a title from Adam, could at this day possess anything (suppose in America) by a right of possession or occupancy which another might not without any wrong or injustice take from him; nor was it a positive or unalterable community of things; for then if it had been so ordained it had been part of the law of nature, and no Property could ever have been introduced, though all Mankind had consented to it. Therefore it follows that God bestowed no more upon any particular man than what would serve for the preservation of himself, and propagation of his species, and only in that manner as might prove subservient to that design, which being supposed it is evident that before compacts there might be a negative, though not a positive communion of things; that is all things being exposed to all men (as meat is at an ordinary) they did not belong to this person more than to another; for seeing things are not of any use or benefice unless applyed to mens particular necessities, and that this grant of those things necessary for life would prove altogether in vain, were it lawful for others to take from us, those things which we have already seised on, therefore man being a rational creature, and being able to foresee future inconveniences, or to draw a consequence from that which he hath found by experience, the first natural law must be the erecting of this Principle of Reason, Not to do to another that which I would not have done to my self in the same Circumstances; Therefore, if it be rational for me to desire my own preservation, and to enjoy the means to it, it is likewise rational to permit another man to do the like, since he hath as much right to his being as I have to my own; so that if a man have already seised any of those common things for his own use, though he does not actually then use them, those things cannot be taken from him without injury; and if any man will call this first principle of natural Justice, a true agreement of Mankind, I shall not gain say it, since such an agreement is but a rational assent of every particular mans understanding that the abstaining from the doing such a thing is every private mans interest, and likewise for the good of humane society. Thus among the Indians, few or none steal from each other (though they have no stone walls nor Locks to secure their things in) because they know Theft would bring in perpetual War, and confusion among them; and therefore it is all their interests to joyn against Theft, not only as a breaker of the laws of nature, but an infringer of this tacite agreement: But that this Principle belongs to man considered purely as a rational creature that is able to draw true conclusions from true Premises, appears from the condition of Children, Fools, and Mad-folks, which though they have in many things an imperfect reason, and a sense of their present appetites, or desires, yet not being able to make any judgment of the reasons or consequences of actions, are not to be reckoned in the rank of rational creatures, so that it is evident that God intended occupancy or possession should concern a right among men to things that were before in common a yet so, that this occupancy does not give a man a right to more than is really necessary, and which he can apply to the necessities of himself and Family: Therefore this natural Propriety in things much less, that which is introduced by Law, or common consent, cannot exclude that natural right every man hath to his own preservation, and the means thereof; so that no man can be obliged in Conscience, or commits a sin, if in a case of extream necessity, (even ready to perish) he makes use of some of the superfluous necessaries of life which another man may have laid by for the future uses of himself, and Family, and that were without his consent, if it can by no other means be obtained, and that the things the necessitous person takes are not immediately necessary for the preservation of the lives of the Possessors, and his Family; (for in this case this necessity is to be preferred before all others) therefore this right of self preservation is still supposed in all humane compacts, or laws about the division, and distribution of things; so that when our own and all other laws are so favourable that they do not esteem those guilty of theft that take only victuals in case of extream necessity, though without the owner’s consent, and though the person that takes them be so poor that he cannot make satisfaction for what he hath so taken, it being sufficient that he is supposed willing to do it if ever he comes to be able: So likewise since the Earth was first Peopled by distinct Families, or companies of men, all of whom had a right to the necessities of life, (which are indeed no other than the products of the Earth) these coming to inhabit such and such tracts of ground, it was in their power, either to live in common upon such things as the earth produced of it self, or else to divide to every man his share which another should have no right in: Thus the Indians in America (as I said before) have all the Country in common among them (except the sites of their houses and Gardens) but our Planters rather chuse to allot every man his share, it being that which suits best with that way of life they have been used to in their own Country; and as they think will most conduce to their common Peace, and advantage; not but that they might if they had pleased have occupied such a tract of land, which those Indians made no use of, in common with them, there being no more Obligation upon them to come to a more distinct division than there does upon the Indians themselves; so on the other side after these Planters have divided this unoccupied land into as many shares as will serve the necessities of each mans Family, It is an injury not only in any of those that agreed to this division, but in any Indian who is at peace with them (that is, hath never declared any war) to break up this enclosure, or take away any thing that is there planted without the consent of the owner. For since the owner hath possessed himself of this land, and bestowed his Labour and Industry upon it, and that the other hath no right to any more of the products of the earth, than that may serve for the subsistance of himself and his Family, and that there is more ground lost where he may procure himself the like necessaries if he please, he hath no right to take away this land from the owner without his consent, since he hath the same right to this Field, as the other hath to his Cottage or Garden. And if such an occupancy will not create a Propriety, certainly all the Nations in the world are in an ill condition; For since none of them can now convey their Titles to the Country they possess from any one of Noahs Sons if occupancy or possession be no good Title, then the rest of Mankind may upon the Authors own Principles come in for a share wherever they please, for certainly all the land that then remained undiscovered (which could not be less than two parts of three) and consequently undivided amongst Noah’s Sons, must afterwards fall either to the first occupiers, or all the rest of Mankind must still have a right in it. So there is no need either of supposing the original of Property to have proceeded from Noah and his Sons, or else from the common consent of all mankind at once, since no man hath a natural right to any more things than he could make use of, nor any right at all to those he had no need of, nor had actualy seised, for his own use: This being I hope thus far cleared, I will not take upon me to maintain what Grotius asserts, that after Property was once introduced, it was against the law of nature to use community, since neither community, nor Property are by the absolute law of nature, [God having bestowed the fruits of the Earth on the Sons of Men for their uses] but as for manner of using them, whether in Propriety or in common, he left it to the discretions of those several parcels of Mankind who agreed to live together in civil society or commonwealth, as it might either way conduce to their particular way of living, or common safety and interest: For as where a Country is thinly peopled, and produces all the necessaries for life only by the labour of the Inhabitants in hunting, fishing, and the like imployments of that life which we call barbarous, because it does not exercise it self in day Labour, and that the People do neither need nor desire those superfluous things that others doe, there is no need of enclosing or appropriating any more Land than they really make use of, more being but a burthen to them, so likewise where the People are more than the Country can well maintain from its own Products, there will presently arise a necessity of division of lands in the first place; and of Trade abroad in the next; or else the People must either discharge themselves into their neighbours territories, or live by robbing, or playing the Pyrates upon their neighbours, as appears by Tartars, Arabs and Algerines; and consequently when a Country is once divided, and a great many are without any share of land, there must be laws made to maintain this Propriety, and punishments ordained for them that disturb it; and this is the true reason why there is an absolute necessity for a division of lands in Holland, but not so in Surinam The nature and original of Propriety being thus layd open, the other small Objections against this Primitive Community which some men draw out of Scripture will easily be answered; as first how Adam’s Children could have any right to any of the things of the world, since that the world and all things in it were given by God to Adam and Eve, before their Children were born; and so being born after this grant, they could have no farther interest in any thing than their Parents pleased to allow them, to whom all things were granted before: As for this particular grant or Dominion of Adam, I have all ready shewn its weakness, and that the Grant was not Personal to Adam, and Eve alone, but to all Mankind, though made to them as the Protoplasts or representatives thereof; and as for the right of occupancy, I have already layd down, that no man in the state of nature, hath a right to more land or territory than he can well manure for the necessities of himself and Family; that is, can reduce into actual possession, otherwise a man that first sets his foot on an uninhabited Island, would have an absolute right to the whole, though it were a Thousand miles long, or to all the Territory he could discover with his Eyes, so that no man could make use of one foot of land, in that Island but by his permission.
But another Objection is, That even in the state of Innocency there neither ought, nor could have been such a Community, because since all order is agreeable to right reason, and the best order of possessing the things, which were granted by God to Mankind, was only proper to thatstate, in which the abstaining from that which was anothers might best be practiced: Since that Law must be writ upon mens minds even before the fall, at least before the law given, thou shalt not steal, by which there is establisht a certain and distinct Propriety to every man in the things he possesses. In answer to which it may be replyed, that no man can tell what kind of life men would have led, had they continued in the state of Innocency; or whether Propriety or Community would have suited best with their way of life, though I rather encline to the latter, since there had been to need of enclosure, the Earth producing all things needfull for the life of man without his labours, and going naked, could need no more things than what were meerly necessary; but after the fall [Ediot: missing character] untill which they needed no laws as being uncapable of sinning) these Commandments thou shalt not steal, nor covet thy neighbours goods, did take place even during this Communion of things: For the same law of Nature or Reason, that now forbids men to covet or take from each other any of those things which he enjoys by the laws of the Commonwealth where he lives, does before the institution of the laws about an absolute Property, likewise forbid the taking away from any man those things, which were necessary for the subsistance of himself, of Family, and was either actually possessed of, as being in his hands, or lying in his presence, or to such things as he had perhaps laid by for future occasions; nor is there any more obligation upon Mankind from these Commandments, thou shalt not steal, thou shalt not covet, to institute an absolute distinct Property in all things, than there is that we should still have slaves among us, because the Jews seldom using any other servants, God commands them that they should not covet such a slave, any more than his Ox, or his Ass. For the Law was only intended to take place, as far as the Subject was capable. Having now answered all the considerable Arguments that can be made against the possibility of a primitive Communion. I hope this great difficulty which hath puzled some Divines, which is prior in nature, Propriety or civil Government is now cleared, since it is apparent, Propriety, understood either as the application of natural things to the uses of particular Men, or else as the general agreement of many men in the division of a Teritory, or Kingdom, must be before Government, one main end of which is to maintain the Dominion or Property before agreed on.
Having run over all that is most considerable in these observations, both concerning the natural Dominion of Adam, and consequently shewn the original of Dominion and Property, I shall concern my self very little, in the difference between the Author, and Grotius, concerning the Power of the people to resist and punish Kings, in which I shall say no more, than that a Prince who is subject to be so punished, is not really a King, in the sense that the word King ought to be understood, since a King is properly one that hath no Superior, and consequently is not capable of Punishment; all punishments as I said before, being properly the effects of a Superior, over an Inferior; so that the Kings of Sparta were no more than Generals of the Army, and if the Dake of Venice should have the title of King given him to morrow, he would still be but the Head of the Senate, since the one was liable to be put to death by the Ephori, as the other is still by the Counsel of Ten. But if there are any such desperate inconveniences (as the Author mentions) that attend this Doctrine of natural freedom, and Community of all things, it is more than I can find, or I believe any man else, that will consider the nature of mankind; and when that is done, if things are contrary to his notions of them; it is not his declaiming will alter mens Judgements, much less the nature of the things themselves.
As for Grotius’s three ways whereby Supreme Power may be had,Obs. P. 63. as 1. By full right of Propriety. 2. By an usufructuary, and 3. By a temporary right, I think in most things Grotius may very well be defended, though not in all. For whereas he acknowledges two ways, whereby a King may obtain a full right of Propriety, in a Kingdom: That is either by a just war, or by donation from the People. I do not see the Author finds fault with him upon any just grounds, because he hath not shewn how a War can be just without a precedent Title in the Conqueror, as if no war could be just, nor no Conquest made without such a precedent Title: For all men know that a war may commence upon other scores, than old Titles, and in such wars the Prince, or State that hath the right of their side, may prosecute this war, either until they gain this first demand, or else absolutely subdue their Adversary. So that he mistakes in saying, that Grotius will have a Title only to make the War just, so that all he says upon this false supposition signifies just nothing, but as for what he says about a Conqueror’s having no new Title, but being remitted to his old one, is true: Nor do I see any inconvenience from it. For if he were in absolue Monarch before he were put out, he cannot Attain more than he had before; so if he, or his Ancestors, had no absolute but a limited Power; he could be restored to no more than the Constitution of the Government will allow him. Nor did Edward IV. or Henry VII. though they first obtain’d the Crown by War, pretend to more Power than their Predecessors. I shall not trouble my self about the reasons the Author gives for it: But I think he is out in making it seem impossible from what Grotius hath said, for a Prince to gain a full right of Propriety by a just War, for Grotius says the contrary; and allows that in some cases a Prince may gain an absolute dominion by Conquest. But the Author makes this Dilemma to bring Grotius to anabsurdity:P. 64.That if a King come in by Conquest, he must either conquer those people that have a Governour, or those that have none: If they have no Governour, they are a free People, and so the war will be unjust to Conquer those that are free. But if the people Conquered have a Governour, that Governour hath a Title or not: If he have a Title it is an unjust War that takes the Kingdom from him: If he have no title but only the possession of a Kingdom; yet it is unjust for any other man, that wants a Title so to Conquer him that is in possession; for it is a just rule, that where cases are alike, he that is in possession is in the better condition: and for this he quotes Grotius himself, which he need not have done, for he himself allows it for truth, only he will have all Usurpers whatever to have a right, whether by Conquest or otherwise, which Grotius will not. As for the rest of this argument, it is drawn from Principles never laid down nor maintained by Grotius:See Directions for Obedience. P. 68. 69. For first in a People, that have no absolute Governour (as the Brasilians, and Caraibees have none as I have already sayd) live peaceable and offend no body, I think it unlawful to make war upon such a People (as the Spaniards did) without any cause but to make them slaves. But if such a People will joyn together as they often do, under a Carak or Captains created by themselves, and make an offensive Wars upon their neighbours, without just cause: I think they may justly be Conquered, and become either slaves or subjects to the Conquerer, as well as one single man in the same case, since both Grotius and all writers allow the taking of slaves in a just war,See Grotitius de I. B. Li. III. Cap. 7. but none ever made it alike reasonable, to make slaves of those that have done them no injury. As for the other part of the Dilemma, where the People Conquered have an absolute King,Ib. Cap. 8. or Government, either by Title or Possession. Grotius likewise allows an absolute Conquest of such a People, provided the war were just: For though the Governour, or Governours made the war, yet since the People have transferred all their Power to them, and have agreed to authorize all their actions, the subduing of the Forces, raised by this Governor is a Conquest of the whole People,Ib. Cap. 8. as Grotius allows the Conquerer either to reduce them tothe condition of Slaves or Subjects, which he pleases; and certainly where the Conquerer had a right to subdue, the Conquered have likewise an obligation to obey. As for Possession it is true, that it is unjust for another Man to Conquer him, that hath but a Possession of a Kingdom, if that be the only ground of the quarrel: But neither Grotius, nor any reasonable man else, will allow the Conquerour of such a Possessor that wants a Title, to have gained an absolute right over the People, since the Usurper himself commanded them only by force, and that they never confirmed his Title by any after consent. ’Tis true Grotius defines publick Subjection, to be that whereby a People yields it self up to the Government of any one, or more men, or also to another People: But he limits this Subjection to that which proceeds from consent, as he divides Subjection from consent into publick, and private, but does not exclude but allows Subjection without consent,Lib. 11. Cap. 5. §. 26. as often as he that deserved to loose his liberty, is reduced by force into the Power of him who hath a right to exact that Punishment; and who have this right, viz. the Conquerors in a just War, he after shews us, Lib. III. Cap. 7. 8. So that it is evident that the Author never read Grotius carefully or else misrepresents his sence on purpose, though I am so charitable as rather to believe the former, than the latter.Obj. P. 66. He likewise finds fault with Grotius for supposing, That some People for avoiding a greater evil, do so yield themselves into anothers power as to except nothing; for it would, says he, be considered how without war, any People can be brought into such danger of life, as that because they can find no other way of defending themselves, or because they are so pressed with Poverty, as they cannot otherwise have means to sustain themselves, they are forced to renounce all right of governing themselves, and deliver it to a King. But since the Author could not understand how this can be without an actual War, I will shew those of his opinion several instances wherein it may and hath happend, that the People may renounce all rights of Property, or of Government without any war, made upon them. The first instance shall be that of the Egyptians, who when they had parted with their Cattel,Gen. 47. and Flocks to Joseph for Bread, were after forced to yield up their lands and bodies to Pharaoh, and to become instead of Subjects, absolute Servants or Slaves, as appears by verse 19. Buy us, and our land for Bread, and we and our land will be servants unto Pharaoh; who disposed of their persons as he thought fit, for verse 21. It is sayd, as for the People, he removed them to Cities, from one end of the borders of Egypt, even to the other end thereof; that is, he made Colonies of them, and changed the places of their abode; or perhaps made them servants to work in publick works, or manufactures, so that they that dwelt in the North of Egypt he removed into the South, that they might be out of their own Country, and have less interest or temptation to challenge their own lands again, when the Famin should be over. From whence it is clear that a People that were free Subjects, may without a War give up themselves, and all that they have to the Dominion of another; But since this instance may seem of too long standing, I will produce one that may happen nearer home; suppose the States of Holland being threatned by the French King, to make War upon them, if they do not give up themselves to be his absolute Subjects, or suppose being Master at Sea, (as God knows after the rate his power now encreases, but that he may be so) he threaten to cut their Banks and let in the Sea to drown them, and their Country, if they will not yeild it up to him; may they not if they find they cannot resist him, submit themselves to him, and make the best terms they can for themselves, and are they not then obliged by the Authors own Principles to continue his Subjects? and yet here is no actual War, or inundation, but threats only, to force them to this submission. So that the Authors Supposition is false, that no case can happen but an actual War only, which can reduce a People to such terms of extremity, as to compell them to an absolute abnunciation of all Soveraignity, and so likewise is this consequence also which he assumes from thence; then war which causeth that necessity is the prime means of extorting such Soveraignity, and not the free gift of the People, who cannot otherwise chuse but give away that Power, which they cannot keep; for they might either leave their Country orbury themselves in it. But it seems the Author had forgot his Logick, or else he would have remembred, to distinguish between Causa sine qua non, and Causa efficiens, a cause which does not properly give being to a thing, and yet without which it could not have been produced: Thus a Slave at Argiers though it is the occasion of his servitude his being taken Prisoner, yet the true Cause of his becoming a lawful Servant to his taker, does not proceed from his conquering him, but from his coming to Terms with him, that he shall be dismist of his Fetters, or Imprisonment, upon Condition he will serve faithfully and not run away, and all Moralists consider those actions they call mixt; as when a Merchant flings his goods over into the Sea to avoid being cast away among the number of the Voluntary ones, though they commenced from some kind of force, since in this case the Merchant might if he pleased keep his goods if he would venture his life. So in many cases may a Conquered People, if they have never neither by themselves, or their representatives owned the Conquerer. But as much as the Author quarrells at the word usufructuary Right in Grotius, as too base to express the Right of Kings, and as derogatory to the dignity of Supreme Majesty; yet the the French are not so scruplous; but in the absolutest Monarchy of Europe, plainly declare that their King hath but an usufructuary right to his Kingdom, and the Territories belonging thereunto, or that he can any way charge them with his debts, or alienate, or dispose of them; without the consent of the States of France, and was so solemnly, declared by that great Assemby des notables called by K. Francis the First,See Mezeray in the reign of this King. 1527. to give their Judgment of the Articles of Peace lately made with the Emperour Charles V. at Madrid, their sense was, that Burgundy which by those Articles was to be delivered up, was an inseparable Member of the Crown, of which he was but the usufructuary, and so could not dispose of the one any more than of the other; nor was this any new opinion, but as old as St. Lewis, who being desired by the Emperour Frederic III. to restore the King of England his just Rights, To which the said King replyed, (whose words I will faithfully translate (as they are in Matthew Paris p. 765. Anno Dom. 1249.) By the holy Cross with which I am signed I would willingly do it, if my Counsel (i. e. the Estates) would permit it, because I love the King of England as my Cosen; but it were hard at this very instant of my Pilgrimage (viz. for the holy land) to disturb the whole body of my Kingdom, by contradicting the Counsels of my Mother, and all my Nobles, although the Intercessors are very dear to me; neither is this to make a Kingdom all one with a Ferm (as the Author words it) since in the civil Law it signifies not only one that barely receives the rents, or profits, but likewise enjoys all other Prerogatives and advantages that may accrew to him as the true owner, though he have not power to sell or give it away; Nor I suppose will any French or English Subject (unless such bigotted ones as the Author) acknowledge any Forraign Prince, or other Person can obtain an absolute Dominion over them by Conquest. I am sure they were not of that opinion between two hundred, and three hundred years agoe, when the King of England brought a plausible Title into France, and had it backt by almost an entire Conquest of the whole Kingdom, and a formal setlement and acknowledgment from Charles VI. then King and the greatest part of the Nobility and Clergy of France at Paris: and yet after all this, the French had so little Conscience as to preclame Charles the Dauphin King of France, and to drive the English out of the Country, and renounce their allegiance which they had sworn to our Kings, Henry V. and VI. and yet the Author will have it to be but a naked presumption in Grotius to suppose The Primary will of the People to have been ever necessary,P. 69.to bestow Supreme power in succession. But if the Author will not be content that Kings shall have any less than absolute Propriety in the Crown, let us see the consequences of this Doctrine; For the Crown must be of England in the nature of an absolute Fee Simple, and is consequently chargeable by any act, or alienable by the Testament of the King in being: So that then King John had Power to make this Kingdom feudatary, and tributory to the Pope: and so the Pope hath still a good Title to it. And since Religion with these Gentlemen diminishes nothing from the right, and absoluteness of Monarchy; the same King might have made over his Kingdom to the Emperor of Moroco (as the Historians of those times relate he would) and so the Sarracen Prince might have entred upon the non-performance of the Conditions, and have turned out his Vassal, and been King here himself; which opinion how contrary it was to the notions which Kings themselves had of the right to dispose of their Kingdoms, let any man consult Matthew Paris, and he will see there what Phillip Agustus amongst other things tells Wallo the Popes Legate, that no King could give away his Kingdom without the consent of his Barons, who are obliged to defend it,Anno 1216. P. 280.and all the Nobility there present began to cry out at once, that they would assert this Priviledge till death: That no King, or Prince could by his sole Will, give away his Kingdom, or makeit tributary, by which the Nobles of the Kingdom might become Slaves. Nor did the English Nobility think otherwise, since this was one of the causes of their taking Arms against King John: and afterwards in his Sons reign,Matt. Paris. 1245. p. 659. 666. we find the Procurators of the Nobility and People of England declare in the Council of Lyons, quod universitas Regni nunquam (i. e. Patres nobilium vel ipsi) never consented or would ever consent to the tribute unjustly extorted by the Court of Rome: At which protestation his Holyness was so confounded, that our Author tells us he never lift up his Eyes, or had a word to reply.
And every Monarch hath as absolute a Propriety in his Kingdom, as Noah had in the World, as our Author supposes, I know no reason why the King may not bequeath his Crown to which of his Sons he pleases, no matter whether lawfully begot or not, since Princes are above all Terms, or positive Laws, or he may divide it among them, as Noah did the World to his three Sons: So that upon these grounds the Testament of Henry VIII: whereby he disinherited the Line of Scotland; and that of Edward VI. whereby he excluded his Sisters from the Crown should have been valid, but the Loyal Subjects of England beleived that neither of those Kings could disinherit the right Heir of the Crown by their Testaments alone, but acknowledged them in the persons of Queen Mary, and King James notwithstanding those pretended Wills. I have been the larger upon this Subject that men that do not much consider, nor are versed in these matters, may see the absurd, wicked consequences of this notion, of an absolute Propriety and Dominion, to be inseperable from Monarchy: So that I doubt not but even those very men who love a smatch of arbitrary Government, because it best suits with their tempers, or interests, cannot away with it unmixt, when it comes to exert all its Prerogatives: Thus some men think Musk, and Ambergreece mixt whith other Ingredients makes an agreeable Perfume, which if held to their noses in the Cod, or whole Lump, they are so far from thinking a good smell, that they loath it.
I shall not affirm with Grotius That the Empire which is exercised by Kings, doth not cease to be the Empire of the People: For I suppose the People have passed over all their present interest in it, to the Prince and his heirs, and as long as that line lasts they have nothing to do with it, and consequently cannot set up another Family over them; and so on the other side the King hath no such absolute Property, as that he can alter the succession otherwise than the fundamental laws of the Monarchy did first appoint; which were made by consent of all the Estates, and without which they cannot be altered; nor is there any fear of a contradiction, as the Author supposes, [That the Succession must either hinder the right of Alienation which is in the People, or the alienation must destroy the right of succession, which must attend upon elected Kings. For we own no right of alienation in the People, as long as there is a lawful Heir remaining and succeeding in his right, to whom the Crown was first legally setled; nor yet does therefore the succession diminish the right which the People had at first, but that it may arise and take place again if the King should die without known heirs.
Having done with his observations upon Grotius,Chap. VI. I am now come to his Anarchy of a limited or mixt Monarchy; in which (though I shall not undertake to maintain all which our Author if whom he writes against hath laid down in this treatise, since many things in that it treats were written according to Irene’s notions during the late Warrs) yet I hope I may be able to shew that this Doctrine of a limited Monarchy is not but of Yesterday, as our Author will have it: But that all the learned men in the laws and constitutions of these Northern Kingdoms, have held it to be no such damnable Doctrine, but that the contrary would introduce all Tyranny, and Arbitrary Government among them, which is at this day practiced in the Eastern parts of the world.
But it seems the Author allows, that there may be a mixt Government;260. but not a mixt Monarchy, because the word Monarchy is compounded of two Greek words μόν one alone, and Ἁϱχειν to Govern, or Rule: and therefore Monarchy being the Government of one man alone cannot admit of any limitation or mixture.
But what if one should say that all this is nothing but wrangling about words: since why may not he be called a Monarch who hath the Supreme, though not the only Power in a Commonwealth, if the custom of that Country allow it him, though his Power be limited or mixt, as well as for the Romanes, to call their Monarch but Imperator, or General: or for the Florentines, or Russians to call their Monarch great Duke: Since it is not the names, but the exercises of the power that creates the difference: Nor is it any more a Bull, or contradiction than to call that which I now write out of, an Inkhorn, though perhaps it is made either of Glass, or Mettal; So the first Monarch being absolute, the Title of Monarch, may now be by eustom well enough applyed to those that are not absolutely so; but to pass by such Grammar niceties, I shall endeavour to vindicate the writer of this Treatise of Monarchy, whom the Author calls Mr. Hunton, from giveing an Idea of a Government, which is nothing but meer Anarchy and Fiction: and that there hath been, and yet is such a kind of Government as a limited Kingship; which if the Author is so dogged, as he will not allow it the name of a Monarchy, we cannot help it, let his Friends give it a more proper name if they please: As for what he will prove out of that Authors words that every Monarch (even his limited Monarch) must have the Supreme Power of the state in himself, so that his Power must no way be limitted by any power above his: For then he were no Monarch, but a subordinate Magistrate, is true; yet I do not see that the Author contradicts himself as the observatour will have him, when he tells us in the same Page, That in a moderate, or limited Monarchy, 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: So that he will have his Supreme Power not limited, and yet restrained: Is not a restraint, a limitation? and if restrained, how is it Supreme? and if restrained by some law, is not the Power of that law, and of them that made it above his Supreme Power? and if by the direction of such law only he must Govern, where is the Legislative Power, which is the chief of supreme Powers? when the law must rule and govern the Monarch, and not the Monarch the law; he hath then at best but a gubernative or executive Power: and so proceeds to quote this Authors own words at large, if his Authority transcends his bounds, and if it command beyond the Law, and the Subject is not bound Legally to subjection in such cases, and if the utmost extent of the Law of the land be the measure of the limited Monarch’s Power, and Subjects duty where shall we find the Supreme, that Culmen, or apex potestatis that prime ἄϱχει which the Author saies must be in every Monarch, the word ἄϱχει which signifies, Principality and Power, doth also signifie beginning, which doth teach us that by the word Prince, or Principality, or Principium or beginning of Government is meant; this if it be given to the law, it robs the Monarch, and makes the law the Primum Mobile; and so that which is but the instrument or servant to the Monarch becomes the Master. In vindication therefore of Mr. Hunton, on whom he makes these remarks, I shall in the first place grant that he hath perhaps spoke not so properly, in saying that the supreme Power must be restrained by some law, whereas indeed he should rather have sayd limited by some law, since the word restrained is of a harsh signification, and denotes something of a certain force, the exercise of which this Author is altogether against in his whole treatise of Monarchy; so that putting it thus, that the supreme Power (in a limited Monarchy) must be limited by some Law, does not therefore place any coercive power above his, who can call him to an account for his actions: But a Power that may remonstrate to him where he hath acted contrary to that Law, and may by that law punish, not the Monarch, but his Ministers that have dared to transgress those such known laws. For as for the Monarch himself, it is still supposed that he in his own person can do no injury: So that he may still be Supreme, and yet be limited, not by any power Superior to his own, but by his laws (or declared Will) which he himself hath made in the Assembly, of his Estates, and which he can not alter, but by the same form by which they were constituted; and this sort of limitation may very well consist with a perfect Monarchy. Thus the King of the Medapersians was an absolute, Monarch, and alone made laws, and yet we find in Dan. XII. that Darius was forced against his will to cast Daniel into the Lyons Den, for transgressing his own Decree, because the Laws of the Medo-Persians did not alter, that it could not be dispensed with by the King, when they were once made: Thus it is no derogation to God himself to be bound by his own Oath, which from the immutability and perfection of his nature he cannot afterwards alter. See Heb. VI. from v. 16. to 17, 18. That by two immutable things, in which it was impossible for God to lie &c. the two immutable things are first his own nature, and then the Oath, he sware by himself, so that we see this restriction of Gods power by his Oath (which is a law to him) is no derogation from his absolute Monarchy or Omnipotency; but is consistent with it; therefore it does not follow that in all laws where the law governs the Monarch, he hath therefore but a Gubernative power: Or that if the Soveraign Authority is limited by Law, it ceases to be Supreme, as I shall by and by shew more at large; in the mean time I shall not defend Mr. H.’s opinion, when he faith that in a mixed Monarchy, the Soveraign Power must be originally in all the three Estates, or that the three Estates are all sharers of the Supream Power, only the primity of share in the Supream power is in one: For the Observator observes very well that this contradicts what he before confessed, That the Power of Magistracy cannot well be divided, for it is one simple thing, or indivisible beam of Divine perfection; yet he will for all this allow his mixed Monarch but one share of the Supream power, and gives other shares to the Estates; and so destroys the very being of Monarchy, by puting the Supream power, or a part of it in the whole body or a part thereof; Therefore I am so far of their opinion that held, the Supream Power cannot well be divided into several shares, since there is so great a conjunction between all the parts of Soveraign power, that one part cannot be separated from the other, but it will spoil the regular form of the Government, and set up an irregular Commonwealth, which will scarce be able to hold well together. And that this will be so in all Governments, see what Mr. Pufendorf, hath said in that excellent work de Jure nature et Gentium discoursed upon this Subject;Lib. IV. Cap. 7. §. 9. 10. 11. 12. 13. neither am I not here of Grotiu’s mind, Lib. 1. Cap. 3. §. 9. 17. Who supposes the Supream power to be divided: if a People yet free should command its future King per modum manentis præcepti, after the manner of a lasting, or standing Precept or Command; where it does not appear, how there can be a lasting Command at that time when no Person hath any longer a power of Commanding: For every Command supposes a coactive force, to be exercised, when ever that Precept is violated; therefore the People constituting a King, must either retain this power against the King, or may not retain it; if the former, there will remain only the empty name of a King; but the real Soveraignty will still remain in the People; but if the latter be true, and they do not retain it; this Precept or Command signifies nothing. So likewise in that same place, If in the conferring of the royal power any thing be added, by which it may be understood that the King may be compelled, or punished: For here it is true the Soveraignty is not divided, but the people hath it indeed altogether; For if the People have a right of punishing the King upon any pretence whatever, there is nothing conferred upon him, but the office of the first Magistrate in the Commonwealth under the name of King, but the Royal Power will still remain in the People; because (as I have already laid down) all punishment, quatenus as such, must proceed from a Superior: But all compulsion is performed two ways, either morally, or Physically, that is by way of Soveraign Authority, or by force of Arms, or War; for there is no Authority can be morally supposed against an Equal, considered as such; therefore when Grotius inferrs, that the People may be at least equal to the King, because in some cases it may compel him, he is likewise necessitated to grant that neither of them hath any Authority over the other, because it contradicts the nature of a Commonwealth: Though compulsion by force of Armes as between Equals, or those who have no Authority over each other, must be granted in the state of nature, in which we will make use of Grotius’s own Example; that a Creditor hath naturally a right of compelling the Debtor to pay his debts, although the Creditor hath no right to exact this of him by way of any authority thereby vested in himself: otherways it were necessary that every one who owed another any thing, must presently come under his power: therefore the Debtor must be compelled by the Creditor to pay his debt, either by the assistance of some Judge (which cannot be supposed between the King and People) or if they live in a natural liberty, by force. But if we should allow this way of compulsion to the People, it will follow that both the King and the People do still live in a natural liberty, or meer state of nature; that is that the Commonwealth, is dissolved: Yet we will grant Grotius this, that in all civil constitutions there is nothing absolutely free from some inconveniencies, therefore because of the inconveniencies that arise from this divided Soveraignty, it does not presently follow that there can be no such Government or that it must presently fall to an absolute Anarchy; for right is not to be measured from what pleases either this, or that Author, but from his or their will, from whom this right at first began. So likewise on the other side, it must be granted that if such division of the Supreme Authority hath been instituted by any People that people have not constituted a Regular government but a politick body subject to perpetual distempers.
Therefore supposing the most that can be required, that the King in a limited Monarchy is he who alone gives the Essence and Authority to the Laws, though he can make no other than what are offered him in the Assembly of his Estates; yet if all Magistrates that put these Laws in execution are subordinate to him, and depend upon him, this takes away that inconvenience this Author objects against limited Monarchs: For he is truely Supreme, since he makes the laws, and is the Fountain of all power in his Dominions; neither does this derogate from the Supremacy of his Power that he is obliged either by original contract, or by after promise, or condescent not to make any laws, or to levy any mony, or taxes from his Subjects, but what they shall offer him in the Assembly of his Estates. For since all laws that are made in a Monarchy, are but the declaration of the Monarchs will: and that he being but one man cannot declare his will Physically to the sences of all his Subjects, but requires some politick form, or manner of signifying this will to all that are to obey it, which is various according to the several Customs, and constitutions of divers Kingdoms; therefore as in Monarchies where there are no use of Letters, Laws can be no otherwise made, or promulgated, but by signifying the Monarchs will to the subordinate Magistrates by word of mouth, by such Officers as must be supposed to bring some sufficient token, that they come immediately from them, and are sufficiently instructed in the matter he will have observed as a law, which form can depend upon nothing but Custom, or the common consent of the People to admit that for Law which shall be so promulgated, since they have no infallible certainty, but that the Messenger may be sent by some body else that hath a mind to make alterations in the State without the Princes knowledge; or else that the Messenger may mistake the Princes meaning, and report the law wrong. So likewise in Kingdoms where laws are put into writing, there must be some form, or rule agreed upon, both of making, and promulgating Laws: So likewise in those we call limited Monarchies, the Custom or form is not to admit any thing for a Law, or the authentick will of the Prince, but what his Subjects have offered to him drawn up into form, and which he hath passed into a Law, by some token of consent before instituted in the presence of the general Assembly of the Estates of his Kingdom: which course is absolutely the best both for the Prince and People; For since the end of all laws (as of Government it self) are the good of the people; so it is not likely that the Subjects having the drawing up of the Laws, will offer any to the Prince that they are not absolutely perswaded are for the benefit of the Commonwealth, nor can that be any prejudice to the Prince’s power, since no law can be made unless he give it the stamp of his Royal Authority. Therefore though Forms are not essential to the declareing of the will of a private man in the state of nature, yet they must be in respect of that of such a Prince, since the power of the former is natural and can influence only those that hear him, but that of a Prince is artificial, or political as proceeding from compact, and is to command even those that never saw him, or are like to come into his presence; it is requisite that the ways of declaring his will be made so certain, that the Subjects may have no reason to doubt of it: therefore there can no way be found out which can more certainly assure all the Subjects both of the benefit, and Authority of the Laws, than when a Prince voluntarily in a general Assembly of all the Estates of his Kingdom, either by pronouncing of words, or by touching the Bills offered him with his royal Scepter, (or any such like Ceremony) declares he will have those Bills, or Writings promulgated and observed as his Laws, or declared Will, which being once done in such a solemn and publick manner, takes away all suspition that the Prince was not well advised when he made them, or wrought upon by the flateries or insinuations of Women or Favourites; Circumstances which being wanting in absolute Monarchies, where the Prince’s Edicts are perhaps either given out in hast, or at second hand to those who never see him, by Eunuchs, or Officers; who taking the Monarch at some advantage, and makes him pass Commands which perhaps he does not remember or repents of the next day; whereas in such a limited Monarchy, a Prince does not only appear with greater Splendor and Authority, when in the face of his Subjects he exercises the highest Act of Soveraignty in making laws, but likewise assures them that he acts with an absolute freedom, when having a liberty to deny, he yet grants the desires of his Subjects; yet so establishes them for Laws, that they cannot be altered without their consents, and by the same means by which they were first made: which being supposed may serve to answer an Objection that some may make, that if this way of passing of Laws, or the Princes declaring his will after this manner be but a matter of form, or Circumstance, why may not this Monarch alter it at his pleasure, and declare for the future (for example) that all laws shall be by him passed in his privy Council, and then being openly proclamed, and Copies recorded in all Courts of Justice, shall be of the same Authority as if they had been passed in the Assembly of Estates: To which the answer is obvious, that though it is true the Monarchs passing of Laws, whether in the great Council, or in his privy Council be but a matter of form, if the Legislative power remain wholly in himself; yet since even the forms, and Circumstances in doing things are such essential things without which business cannot be done; If therefore the people made it part of their original Contract with their Prince at first, that he should make no laws, but what should be of their proposing, and drawing up; and that he might refuse if he pleased the whole, but should not alter any part of it: This though in its self a matter of form, yet being at first so agreed is indeed an original and fundamental constitution of the Government. Therefore the Author is as much mistaken in his Divinity as his Law, when Patriarcha P. 97. Resolves the question in the affirmative, Whether it be a sin for a Subject to disobey the King if he command anything contrary to his Laws, That the Subject ought to break the laws if his King command him: Where as as the Author hath put it, nothing is more contrary to Law and Reason, for so it would be no sin for Souldiers or others, to give and take away mens Goods by force, or turn them out of their houses, if they could produce the Kings Commission for it; and consequently it was no sin in those Irish Rebells that acted by a counterfeit Commission under Sr. Philim O Neal; for though it was forged (yet the forgery being known but to very few) it was in respect of those who acted by vertue thereof all one, as if it had been true and according to this Authors Divinity,Part 1. Page 98. They were obliged to rise and cut the throats of all the English Protestants, since the King by his Commission commanding a man to serve him in the Wars, he may not examine whether the War be just, or unjust, but must obey, since he hath no authority to judge of the causes of War; which if spoken of such Wars as a King hath a right to make, is true; but of all war in general, nothing is more false, as appears by the instance before given; nor are the examples the Author there brings at all satisfactory, as that not only in humane Laws, but also in Divine a thing may be commanded contrary to law, and yet obedience to such commands is necessary: the sanctifying the Sabbath is a Divine law; yet if a Master command his Servant not to go to Church upon a Sabbath day, the best Divines teach us, that the Servant must obey this Command though it may be sinful, and unlawful in the Master, because the Servant hath no authority or liberty to examine or judge whether his Master sin or no in so commanding. Where if the Author suppose, as I do not, that the Sunday (which he improperly calls the Sabbath) cannot be sanctified without going to Church, or that going to Church on that day is an indispensible duty, the Master commanding the contrary ought no more to be obeyed, than if he should command his Servant to rob, or steal for him; but if going to Church be a thing indifferent, or dispensible at some times then the Author puts a Fallacy upon his Readers, arguing from the non-performance of a thing which is doubtful, or only necessary secundum quid, in which case the Subject or Servant is bound to obey Authority to a thing of another kind which is absolutely unlawful; Since it is sinful, for any Subjects to obey the King’s private or personal Commands in things unlawful, and contrary to known positive laws: The laws only seting the bounds of Property in all Commonwealths; so that though it be no sin in Turky or Muscovy for an Officer to go and fetch any mans head by vertue of the Grand Seigniors Commission, without any trial or accusation; I suppose any man that valued his life, would say it were murder for any person to do the same by the Kings bare Commission in England; and yet there is nothing but the Laws and Customs of each Government that creates the difference: Not that I do affirm it were a sin in all Cases for a Subject to obey the King though contrary to Law, since there are some Laws which the King hath power to dispence with, and others which he hath not, and others which he may dispence with, but yet only for the publick good, in cases of extreme necessity: But to affirm as the Author does without any qualification or restriction, that it is a sin to disobey the Kings personal Commands in all cases however issued out; favours of Mr. Hobs Divinity as well as Law; nor does the Author himself when he hath thought better on’t,Patriark. P. 99.assert the Kings Prerogative to be above all laws but for the good of his Subjects that are under the laws, and to defend the peoples rights (as was acknowledged by his late Majesty in his speceh upon his answer to the Petition of right: So it is true the King hath a power to pardon all Felonies, and Manslaughters, (and perhaps Murderstoo) yet supposing this power should be exerted but for one year towards all Malefactors whatsoever, any man may easily imagin what such a Prerogative would produce; So that the publick good of the Kingdom ought to be the rule of all such Commands, and where that fails the right of commanding ceases.Ib. 99. As for the instance of the Court of Chancery it is (not a breach of the Kings Preogative) but part of the Common Law of this Kingdom, so no man that understands anything of Law or Reason, will affirm that it is a Court of that exorbitant power, that it is limited by no rules or bounds, either of Common, or Statute Law, or of the Laws of æquum, and bonum; or that every thing that a Chancellour, who is keeper of the Kings Conscience, decrees, must be well, and truly decreed, since this were to set up an absolute Tyrany. But I shall now proceed to examine the rest of the reasons the Author gives, either in this Treatise, or his Patriarcha against the possibility of a limited Monarchy.
He finds fault with Mr. H. ‘For asserting that a Monarch can have any limitation ab Externo:P. 281. and that the sole means of Soveraignty is consent and fundamental contract, which consent puts them in their power which can be no more nor other than is conveyed to them by such contract of subjection; upon which our Author inquires thus, if the sole means of a limited Monarchy, be the consent and fundamental contract of a Nation, how is it that he faith a Monarch may be limited by after condescent! is an after condescent all one with a fundamentnl contract, or with an original, and radical constitution! why yet he tells us it is a secundary original constitution: A secundary original, that is a second first: and if that condescent be an act of Grace, doth not this condesent to a limitation come from the free determination of the Monarchs will! if he either formally, or virtually (as the Author supposeth) desert his absolute or Arbitrary power which he hath by conquest or other right.
Which last words of Mr. H. though I confess they are ill exprest, yet I see no down right contradiction in the sence Mr. H. meant them. (if any man please to consult him he there says) That aMonarch may either be limited by original constitution, or an after condescent; therefore these words the sole means of Soveraignty is the consent, and fundamental contract, is not meant of a limited Monarchy any more than of another, but of any Soveraignty whatever. So likewise though these words, a secundary original constitution may seem to be αβυσα[Editor: illegible character] and to destroy each other, yet as the Author explains himself, you will find they do not in sense; for he only supposes that a Prince who hath an absolute Arbitrary power, either by succession, or election, finding it not so safe and easie as he conceives it would be for him, if he came to new terms with his people, would desert some of that despotick power and govern by let rules, or Laws, which he obliges himself and his Successors by Oath, or some other conditions, never to make, or alter without the consent of his Subjects. I see not why this may not in one sense be called a second original constitution; for he was at first an absolute King by which was the original constitution, and his coming to new Terms with them may be termed in respect of this a secundary original constitution, or agreement, of the government though founded upon the former old right which the Monarch had to govern: as for a King by Conquest, it cannot indeed in respect of him be properly called a secundary constitution, since the Conquerour had no right to clame an absolute subjection from the Subjects until they submitted to him, so as that they might not drive him out again, if they were able, until he came to some Terms with them. Thus I think no sober man but will maintain, that the people of England might lawfully have driven out William I. (called the Conquerour) supposing he had claimed by no other title but Conquest alone, which when he had sworn to observe and maintain all the Laws, and liberties of the people of England, and had been thereupon Crown’d, and received as King, and had quitted his pretensions by Conquest, or force, and had taken the Oaths and homage of the Clergy, Nobility and People; they could not then without Rebellion endeavour to do. And certainly had he not thought his title by Conquest not so good as the other of King Edward’s Testament; he would never have quitted the former and sworn to observe the Laws of his Predecessor;Mat. Paris. so likewise Henry I. (from whom all the Kings and Queens of England have since claim’d) upon his Election and Coronation (for other title he had none) granted a Charter whereby he renounced divers illegal practices (which Flatterers may call Prerogatives) which his Father, and brother had exercised contrary to King Edward’s Laws, and their own Coronation Oaths, so that here is an Example of one of the Authors absolute Monarchs, who by a right of Conquest might pretend to the exercise of an arbitrary power, yet renounced it, and only retained so much as might serve for the well governing of his Subjects, and his own security. It is not therefore true which this Author affirms, that this accepted of so much power as the people pleased to give him, since they neither desired, nor did he grant them any more but those just rights they had long before enjoyed under their former Kings before his Father’s coming into England. However I conceive this wife Prince was of the opinion of Theopompus King of Lacedemon,Plut. in Lycurgo. who when his wife upbraided him that he would leave the royal dignity to his Sons less than he found it, no, rather, replyed he, greater, as more durable: and therefore Plutarch in the same place ascribes the long continuance of the Lacedemonian Kingdom to the limited power of their Kings, in these words. (‘and indeed when Envy is removed from Kings) together with excess of power, it followed that they had no cause to fear that which happened to the Kings of the Massenians, and Argives from their Subjects: But because this Author tells Mr. H. that if we should ask what proofs or examples he hath to justify his Doctrine of a limited Monarchy in the Constitution, he would be as mute as a fish, we will shew two or three examples of the antiquity of such limited Monarchies: though they were not of the same model with those that are at this day found among the Germanes, and other northern Nations descended from thence. In Macedon the Kings descended of Caranus (as Callisthenes says in Arrian) did obtain an Empire over the Macedonians, not by force but αλλανόμω by Law. So Curtius Lib. IV. The Macedonians were used to Kingly Government, but in a greater appearance of liberty than other Nations: For it is certain the lives of their Subjects were not at their disposal: as appears from the same Author Lib. VI. The Army by an antient custom of the Macedonians did judg of Capital causes (i. e. in time of War) but in peace it belonged to the People: the power of their Kings signified litle, unless his Authority was before of some force. And this was by original constitution, for we do not find that ever the Kings of Macedon altered any thing in their original constitution; yet they had the Soveraignty in most things; and their persons were sacred. So likewise among the antient Romans, where Romulus from a Captain of Volunteers, became a King. Dyonisius Halicar: Lib. II. Tells us that after Romulus had made a speech to his Souldiers and followers to this effect, that he left it to them to consider what Government they would chuse; for whatsoever they pitcht upon he should submit to it, and though he did think himself unworthy the Principality; yet he should not refuse to obey theirCommands; concluding that he thought it an Honour for him to have been declared the Leader of so great a Colony, and to have a City called by his name. Whereupon the people after some deliberation among themselves chose him their King, or limited Monarch, since both the Senate and people had from the very beginning their particular shares in the Government, the Senates making this great Counsel (which yet were for the greater part of them chosen out of the Patricians by the Tribes,Dyon. Hal. Lib. 11. and Curiæ) with these he consulted, and referred all business of lesser moment which he did not care to dispatch himself; for he reserved to himself the last Appeal in causes, and to be Pontifex Maximus, or Chief Priest, and Preserver of the Laws and Customs of their Country, as also to be chief General in War; but to the people were reserved these three Priviledges, to create Magistrates, to ordain Laws, and to decree Peace and War, the King referring it to them; So that the Authority of the Senate did joyn in these things, though this custom was changed, for now the Senate does not confirm the decrees of the people, but the people those of the Senate: But he added both dignity, and power to the Senate, that they should judg those things which the King referred to them, by Major part of the votes. And this he borrowed from the Lacedemonian Commonwealth, for the Lacedemonian Kings were not at their own liberty to do whatever they pleased, but the Senate had power in matter appertaining to the Commonwealth. But because these examples may seem too stale, or remote, Let us now consider all the Kingdoms that have been erected upon the ruins of the Roman Empire by those Northern Nations that over-ran it; and see if there were so much as one Kingdom among them that was not limited: As for the Kingdoms of the Goths, and Vandals erected in Italy Africk, and Spain, the Author confesses they were limited, or rather mixt, since their Kings were deposed by the people whenever they displeased them: So likewise for the Successors of those Gothick Princes in Castile, Portugal, Arragon, and Navarre, and the other Kingdoms of Spain: He that will read the histories of those Kingdoms, will find them to have been all limited, or rather mixt, and to have had Assemblies of the Estates,Mariana. Lib. XVIII. without whose consent those Kings could antiently neither make Laws, nor raise mony upon their Subjects: and as for Arragon in particular they had a Popular Magistrate called the chief Justiciary, who did in all cases oppose and cancel the Orders and Judgments of the King himself where they exceeded the just bounds of his power, and were contrary to the Laws, though indeed now since the times of Ferdinand and Isabella, the Kings relying upon their own power by reason of the Gold and Silver they received from the Judges, and the great addition of Territories have presumed to infringe many of their Just rights, and Priviledges. And as for the Kingdoms erected by Francks in Germany and Gaule, which we now call German Empire and Kingdom of France. As for the former any one that will read the ancient French, and German Historians, will find that the Kings of Germany could not do any thing of Moment, not so much as declare a Successor without the consent of their Great Counsell of Nobility, and Clergy, and as to the latter as absolute as it seems at present, it was a few ages past, almost as much limited, if not more than its Neighbours: For the Kings of France could not anciently make Laws, raise any publick War, wherein the Nobility, and people were bound to assist him, or Levy Taxes upon their Subjects without the consent of the Estates; but those Assemblies being at first discontinued by reason of the continual wars which Henry V. and Henry the VI. Kings of England made upon them; to which Mezeray in his History tells us,Phil. Com. Livre. VI. Cap. 7.France ows the loss of its Liberties, and the change of its laws: In whose time they gave their King Charles VII. a power to raise mony without them; which trick when once found out appeared so sweet to his Successors, that they would never fully part with it again: and Lewis the XI. by weakening his Nobility and People by constant Taxations, and maintaining Factions among them, bragged that he had metre les Roys du France,Com. Liv. V. Chap. XVIII. brought the Kings of France. hors du Page. or out of worship Whereas the Author last mentioned remarks that he might have said with more truth, (les mettredu sense, hors et de la raison); and yet we find in the beginning of the Reign of Charles VIII. the Assembly of the Estates gave that King the sum of two Millions, and an half of Francks; and promised him after two years they would supply him again: It seems Comines in the same place, did not look upon this as a thing quite gone, and out of Fashion, since he then esteemed this as the only just and Legal way of raising mony in that Kingdom: as appears by these words immediately after. Is it toward such Objects as these (meaning the Nobility and People) that the King is to insist upon his Prerogative, and take at his pleasure what they are ready to give! would it not be more just both towards God and the World, to raise mony this way than by Violence, and Force! nor is there any Prince who can raise mony any other way, unless by Violence, and Force, and contrary to the Laws. So likewise in the same Chapter speaking of those who were against the Assembly of the Estates at that time; that there were some (but those neither considerable for quality or vertue) who said that it was a diminution to the Kings Authority to talk of assembling the Estates, and no less than Treason against him. But it is they themselves who commit that crime against God,the King, and their Country, and those who use these expressions are such as are in Authority without desert, unfit for any thing but flattery, whispering trifles and stories into the ears of their Masters, which makes them apprehensive of these Assemblies, lest they should take cognizance of them, and their manners. But I suppose it was for such honest expressions as these, that Katherine de Midices Queen of France said, that Comines had made as many Hereticks in Politicks, as Calvin had done in Religion; that is because he open’d Mens Eyes, and made them understand a little of that they call King-craft. But however in some Provinces of France, as in Languedoe and Provence, though the King is never denyed whatever he please to demand; yet they still retain so much of the shadow of their antient Liberties as not to be taxed without the consent of the Assembly of Estates consisting of the Nobility, Clergy, and Burgesses of great Towns, and Cities, which however is some ease to them, not to have their mony taken by Edict. So Hungary, which was erected by the Huns, a stirp of the European Scythians, by which you may judge the antient form of Government was much the same as that of the Germanes. All Histories grant that Kingdom to have been limited, and to be of the same form with that of the other Northern Nations, nay which is more, to have had a Palatine, who could hinder the King from ordaining any thing contrary to the Laws: and as for Poland, the Author cannot deny but it is limited in many things; but as he only takes notice of those things in which the King hath power, so he omits most of those in which he hath none, as in raising of mony, or making laws without the consent of the Diet. So likewise in Denmark the Author himself cannot deny but that Kingdom is limited, for he could not before the late war with Sweden either make War or Peace, raise mony or make laws without the consent of his Senate, who were a constant representative of all the Nobility. But for the Election of a new King, or for the making of new Laws the whole body of the Nobility, and Clergy were to be present and consent. As for Scotland the Government of it hath alwayes so much resembled England, that it being now the same Prince, I shall not say more of it, but that it hath alwayes been a limited, if not a mixt Government. In Sweden the Kings power is much the same, only the Commons have representatives in the assembly of Estates, which they had not in Poland and Denmark: But in Denmark and Sweden the Kings (until of Late that they became Hereditary) were never received or owned as Lawful, until they were Crown’d and had Sworn to observe and maintaine the Laws of the Kingdom and priviledges of the Nobility and People. But the Authour thinks he hath gotten a great advantage, because he finds that in Poland and Denmark, the Commons have no representatives in the Assembly of Estates, and that therefore in some limited Monarchies the whole Community in its underived Majesty do not ever convene to Justice. Which signifie little, for these that are now the Nobility may be Heirs to those that once had the whole propriety of the Country in their hands, when these Kingdoms were erected; and so tho the body of the People encreased, yet the ancient Nobility never admitted them into a share of the Government. As in Venice without doubt all the Ancient Planters of those Islands had Votes in the Government, and it was then popular, though it is now restrained to the ancient Families, or those new ones they now admit, and is much such an other cavil as that in England: Before the reduceing the Nobiles Minores to two Knights of the Shire, the Commons had no Votes in the great Council, or Parliament, which opinion see confuted in Mr. Petyt’s Treatise of the ancient Rights of the Commons of England, and in the learned Treatise, call’d Jani Anglorumfacies nova, And this appears more plainly in Denmark, where every Lord of a Mannor, or Territory is a Nobleman, and hath a Vote in the Diet or Assembly of the Estates, or else it might have begun as in Poland, which is but an Association of so many petty Princes for mutual defence, under an Elective Head, who when they entred into this Confederacy reserved to themselves the power they had before over their Subjects and Vassals; which how absolute that was, any man may find, that understands the Sclavonians Genius, in so much that from the absolute Subjection of that People to their Lords we have the Word Slave to this day: But the Author himself confesses the Kingdom of Poland to be limited, but it is only by the Nobility; who are for all this forced to please the King, and to second his will to avoid discord, which is very true, and is requisite in all limited Governments, that the King, Nobility, and People should agree, and as it is their duty to comply with his desires, as much as may be, without giving up their liberties, lives, and fortunes, absolutely to his disposal: So it is his, to answer his Peoples desires in all things which are for their benefit: Not that I praise the Form of Government in Poland, since of all those that own the name of King, I am so far of the Authors mind as to think it most liable to Civil Dissentions. But before I dismiss this Subject, I must take notice of a mistake in the last Page of this Authors present Treatise which is that the People or Community in all these three Realms are as absolute Vassals as any in the world, which is not true, unless it be affirmed of the Vilains or Vassals of the Nobility, which is granted are more absolute vilains, than ours were in England, but as for the free born, or ordinary Free-holders in Denmark, and Sweden, and for the Merchants and Artificers dwelling in Townes and Cities,See Pontanus Hist. Dan. soterus de Stat. Suecia. they have all their distinct priviledges: and are free, both their Persons, and Fortunes, and cannot be oppressed by the Nobility, nor taxed but by the Dyet or Assembly of Estates: but perhaps the Authors Friends may now cavil, and say that these are no Monarchies at all, because a Monarchy is the Government of one alone, in which neither Nobility nor People have any share; to which I shall say no more then that these People call their Governments Monarchies, as participating more of that then any other forme; and they are owned to be true Kings all the world over, and if the Gentlemen of the Authours opinion will quarrel about words, my business is not to dispute from Grammar but reason; so that these Kingdoms may be called Monarchies as they are in Europe; but if these Gentlemen think it not fit to call them so, let them consider how much all this Authors discourse will concerne our Government in England; or elsewhere in Europe. Having now taken a short view of the Ancient Governments of most of the Moderne Kingdoms that have been erected since the ruin of the Roman Empire; we will conclude with the Government of our own Countrey, and inquire whether ever it were an absolute despotick Monarchy or no. As for the Original of the Saxon Government, it is evident out of Tacitus and other Authours, that the Ancient Germans, from whom our Saxon Ancestors descended, and of which Nation they were a part, never knew what belonged to an absolute despotick power in their Princes. And after the Saxons coming in, and the Heptarchy having been erected in this Island, the Ancient form of Government was not altered, as I shall prove by and by; therefore though the Monkish Writers of those times, have been short and obscure, in that which is most material in a History, viz. the form of their Government, and manner of succession to the Crown amongst them; stuffing up their books with unnecessary stories of miracles, and foundations of Churches, and Abbeys: Yet so much is to be pickt out of them, that the Government of the West-Saxons which was that on which our Monarchy is grafted, was not despotical, but limited by Laws, that the King could not seise mens lands or goods without Process; that he could not make Laws without the consent of his Wittena Gemote, or Great Counsel: Nor take away mens lives, without a Legal trial by their Peers, and that this Government hath never been altered,See. Mr. Petyt’s Preface to his foremention’d Treatise. but confirmed by their Successors both of the Danish and Norman Race; as appears by their Charters and confirmations, and many confirmations of Magna Charta, and other Statutes; as there is no man that is but moderately vers’d in the history, and Laws of his Country, but very well knows: and that this opinion of Englands being a limited Monarchy is no new one, but owned to be so by our Kings themselves: We may appeal to the last words of Magna Charta it self, Concessimus etiam eisdem, pro nobis et hæredibus nostris, quod nec nos nec hæredes nostri aliquid perquiremus, per quod libertates in hac Charta contentæ infringantur vel infirmentur. Et si ab aliquo contra hoc aliquid perquisitum fuerit, nihil valeat, et pro nullo habeatur. And this his late Majesty of blessed memory, who best knew the extent of his own power, says in his Declaration from New-market Martij, 9. 1641. That the Law to be the measure of his power; and if the Laws are the measure of it, then his power is limited; for what is a Measure, but the bounds or limits of the thing measured? So likewise in his Answer to both Houses concerning the Militia, speaking of the men named by him, If more power shall be thought fit to be granted to them, than by Law is in the Crown it self; His Majesty holds it reasonable that the same be by Law first vested in him, with power to transfer it to those persons. In which passage his Majesty plainly grants, that the power of the Crown is limited by Law, and that the King hath no other Prerogatives then are vested in him thereby: Nor was this any new Doctrine, or indicted by persons disaffected to Monarchy, and which had but newly come off from the Parliament side, by the apparent Justice of his late Majesties Cause, as Mr. Hobs in his little Dialogue of the civil wars of England doth insinuate, but was the opinion of the ancient Lawyers many hundred years ago: Bracton who lived in the time of H. 2. writes thus Li. I. Cap. 8. Ipse autem Rex non debet esse sub homine sed sub Deo et Lege, quia Lex facit Regem. Attribuit igitur Rex Legi, quod Lex attribuit Ei. viz. dominationem, et potentiam. Non est enim Rex ubi dominatur voluntas, et non Lex. And Li. III Cap. 9. Rex est ubi bene Regit, Tyrannus dum populum sibi creditum violenta opprimit dominatione, quod hoc sanxit lex humana, quod leges ligent suum Laterem; if this be law we have a Tyrant as well described, as by any difinition in Aristotle. Also that the King alone cannot make a Law. Li. I. Cap. 1. So likewise the Lord Chancellour Fortescue in his excellent treatise de laudibus Legum Angliæ dedicated to Prince Edward only Son to Henry the VI. and certainly writing to him whom it most concerned to know those Prerogatives he might one day enjoy, he would not make them less than really they were. Cap. 9. He instructs the Prince thus: non potest Rex Angliæ ad libitum suum mutare Leges Regni sui Principatu namque nedum regali sed et politico ipse sua Populo dominatur: Populus enim iis Legibus gubernatur quas ipse fert, cum Legis vigorem habeat quicquid de confilio, et de consensu Magnatum et Reipublicæ communi sponsione authoritate Regis sive Principis præcedente juste fuerit difinitum, et approbatum. And the Parliament Rol. 18. E. 1. num. 41. (quoted in Lord Cook’s Inst. 4. pt.) acknowledges the same: Homines de Cheshire qui onerati sunt de servientibns Pacis sustentandis, petunt exonerari de oneribus Statuti: Winton’ &c. The Kings Answer was, Rex non habet consilium mutandi consuetudines, nec statuta revocandi. So likewise Cap. 18. speaking of the Laws of England; non enim emanant illa à Principis solùm voluntate, ut Leges in Regnis que tantum regaliter gubernantur, ubi quandoque statuta ita constituentis procurant commoditatem singularem, quod in ejus subditoram ipsum redundant dispendium et jacturam, sed concito resormari possunt dum non sine Communitatis et Procetum regni illius assensu primitus emanarunt: so Cap. 13. Et ut non potest caput corparis Physiei nervos suos commutare neque membris suis proprias vires, et propria sanguinis alimenta denegare, nec Rex qui caput est corparis Politici, mutare potest Leges corporis illius, nec ejusdem Populè substantias proprias substrahere reclamantibus iis, an invitis. And concludes thus, habes jam Princeps, irstitutionis politici Regni formam, quam Rex ejus in Leges ipsius aut subditos valeat exercere, ad rutelam namque legis, subditorum, ac eorum corporum et bonorum, Rex hujusmodi crectus est: et ad hanc potestatem a Populo effluxam ipse babet, quo ei non liceat potestate alia suo Populo dominari. I had not been so large on a Subject which is so known and evident, and which no sober man will deny, were it not for two reasons; the first is to satisfy Divines, and men of other professions, who have not leasure to read old Law Books, and perhaps may lye under some doubts what the true form of Government of this Kingdom hath ever been; and in the next place, to confute the Author’s Cavil, and other mens of his way to the contrary: Authority being the best Judge in this Case, as Diogenes confuted Zenos’s Arguments against motion (not by disputeing) but walking: So now whether the Treatise this Author writes against, be but a Plat mick Monarchy, or a better piece of Poetry than Policy I will not cispute; but this much I think I may safely affirm, that the Government he describes is not a Creature to be found (God be thanked) on English ground, and for those that so much admire it, let them go find it by the banks of Nilus, or Ganges where the Sun (that late Emblem of universal Monarchy) is so indulgent to the Creatures he produces, that those which he cannot make grow here beyond an Eut, or Adder, are there made Crocodiles, and Serpents that devour a man at a bit. So that if you should stile them the representatives of the Monarchs of those Climates, Travellers will say you do not wrong them. I shall now proceed to answer the most material Objection of this Authors, and not imitate him who in this Treatise passes by all the Arguments which Mr. H. brings to prove that this is no absolute despotick, but at least a limited Monarchy, as silently as Commentators do hard places that puzle them. Let us therefore look back to his Patriarcha, where he gives us a distincton of the School-men, ‘whereby they subject Kings to the directive, but not to the coactive power of Laws, and is a confession that Kings are not bound by the positive Laws of any Nation: Since the compulsory power of Laws is that which properly makes Laws to be Laws, by binding men by rewards and punishments to obedience; whereas the direction of the Law, is but like the advice, and direction which the Kings Councel gives the King, which no man says is a Law to the King. Igrant this distinction, provided the Author will likewise admit another, that though the King is not obliged by Laws, or to any Judges of them as to Superiors; or as to the compulsory Power of them: Yet in respect of God, and his own Conscience, he is still obliged to observe them, and not to dispence with them in those cases which the Law does not give him a power so to do; and since it is true that it is the rewards and punishments annext that give laws their Sanction, therefore there are certain rewards which will naturally bless Princes that keep their Laws, such as peace of Conscience, Security, the affections of their People &c. and if I call the contrary effects to these natural punishments, that are commonly the consequences of the breach of them, I think I should not speak absurdly; since the Author himself tells us P. 93. Albeit Kings who make the Laws are (as King James there teacheth us) above Laws, yet will they rule their Subjects by the Law, and a King governing in a setled Kingdom leaves to be a King & degenerates into a Tyrant so soon as he seems to rule (it is there printed in the Copy according, which is nonsence) contrary to his Laws: and certainly a Tyrant can never promise himself security, either from his own Conscience, or from Men; but whereas he says the direction of the Law is only like the advice which the Kings Councel gives him, which no man says is a Law to him, is false; for the Kings Councel should never advise him to do that which he cannot whith a safe Conscience perform; but the Kings Conscience can never advise him to break those Laws that are the boundaries between his Prerogatives, and the Peoples just Rights; and therefore though it is true in some cases where the King sees the Law rigorous, or doubtful, he may mitigate or interpret the Execution thereof by his Judges, to whom he hath made over that power in the intervalls of Parliament, and though perhaps some particular Statutes may by his Authority be suspended, for causes best known to himself and Council; Yet this does not extend to Laws of publick concernment: and for that I will appeal to the Conscience of any true Son of the Church of England, whether he thinks (for Example) that the Proclamation for indulgence contrary to the Statute made against Conventicles were binding or no: Neither is this that follows consistent with what the Author hath said before: That although a King do frame all his Actions to be according to the Laws, yet he is not bound thereto but at his good will, and for good Example, or so far forth as the general Law of the safety of the Commonwealth doth naturally bind him; For in such sort only positive Laws maybe said to bind the King, not by being positive, but as they are naturally the best, and only means for the preservation of the Common-wealth! So that if a King thinks any, the firmest and most indispensible Laws that have been made, (suppose, Magna Charta, or the Statute de Tallagio non concedendo for example) not to be for the safety of the Commonweal, it is but his declaring that he will have them no longer observed, and the work is done, nor will this that follows help it, though true, that all Kings even Tyrants and Conquerors are bound to preserve the Lands, Goods, Liberties and lives of all their Subjects, not by any Municipal Law so much as the natural Law of a Father, which binds them to ratifie the Acts of their Fore-Fathers, and Predecessors in things necessary for the publick Good of the Subjects.
All which is very well, but if this Monarch thus succeeding in the place of the natural Father, is the sole Judge of what things are necessary for the common good, what if he have a mind to keep these Children (for Children, and subjects, slaves are all one with this Authour) as some unnatural Fathers do, as cheap as they can, or to make the most of them, will let them enjoy no more but the scanty necessaries of life; and will think fair water, brown bread and wooden shooes sufficient for a Farmer, and 300 l. or 400 l. per annum enough in Conscience for a Country Gentleman, or desiring to be absolute, (and therefore to have a constant standing Army to raise mony with) as some Monarchs do, and being resolved that for the future all the just rights and priviledges of his Clergy Nobility and People shall fignifie nothing, will take all the over-plus of his Childrens Estates, eaving them no more then a poor and miserable subsistence, he may lawfully do what he will with his own, and it is all his upon the first intimation of his pleasure by Edict, or Proclamation: But perhaps some honest Divine may start up, and tell him he will be damned for thus abusing his power, or breaking his Coronation Oath: what if this Father of his people shall laugh at him for a fool, and think himself too cunning to believe any such thing, or what if his Son, or Successor be resolved not to run his head any more into the snare of a Coronation Oath, but finding himself invested in all the absolute power of his Predecessour without any unjust act of his own (since we know Princes seldome loose any thing they have once got) will exercise it as he pleases for his own humour or glory, and thinks himself not obliged in Conscience to restore any of those rights his Predecessor hath ursuped upon his People. I know not what benefit this may be to the Prince, but this I am sure of; it would very little mend the Subjects condition to be told their former Monarch was damned, or that this may follow him; when they are now slaves, nor is this a mere Chimera since a Neighbouring people over against us, lost their liberties by much such a kind of proceeding. And therefore this Authour hath found out a very fit interpretation of the Kings Coronation Oath,Vide Iuramenta Regis quando coronatur old Stat. ed 1556.for whereas he used to Swear that he will cause equal and upright justice to be administred in all his judgments, and to use discretion with mercy, and truth according to his power, and that the just Laws and customes (quas vulgus elegerit) I will not translate it shall chuse to be observed, to the honour of God. Yet our Author will have the King obliged to keep no laws but what he in his discretion Judges to be upright, which is to make the Oath signifie just nothing, as I have proved already, wherein he abominably perverts the sense of this Oath, for that which he puts first is really last. And the words by which he Swears to observe the Laws, and customes, granted by King Edward, and other his Predecessors, are absolute, and without any reservation, or restriction; and as for the last clause where the King Swears to observe and protect justas Leges, & consuetudines. (which he translates upright Laws and customes) this word justas in this place is not put restrictively (as any man may see that considers the sense of the words) but only by way of Epithite supposing that the People would not chuse any laws to be observed, but those that are just, and upright, but the Author omits here quas populus Elegerit, as a sentence that does not at all please him; though it be in all the Copies of the old Coronation Oaths of our Kings: and he may as well deny that they tooke any other clause, as this: yet since the Author himself gives us an interpretation of these words in his Freeholders inquest, pag. 62. which will by his own showing make these clauses justas Leges, & consuetudines, not to extend to all laws and customes in general, but those quas vulgus elegerit, that is as he there interprets it the Customes which the vulgar shall chuse, and it is the vulgus or common people only who chuse customes, common usage time out of mind creates a custome, no where can so common a usage be found as among the vulgar, &c. If a custome be common through the whole Kingdom, it is all one with the common law in England, which is said to be common custome; that in plain terms to maintain the customes which the vulgar shall chuse, is the common Laws of England, so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen, and establisht, but only those which the people have chosen, and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil, unjust Laws; that is, evil vulgar customes, and to abolish them whenever they should be offred him by bill. But I do not read that any King or Queen since Richard II. took that clause he mentions, and perhaps King Richard took it in the Authours sense, and found such interpreters to his mind, and that made him prove such a King as he was, to endeavour to destroy all the Laws and liberties of this Nation, burning and cancelling the Records of Parliament, and indeed there was no need of any, if it be true which he did not stick to affirme, that the Laws of England were only to be found in his head, or his breast; but the Authour though he grants (for it were undutiful to contradict so wise a King as King James,) that a King Governing in a setled Kingdom, leaves to be a King, and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws, yet will by no means have this King counted a Tyrant. But I will not trouble my self about trifles, much less maintaine that the Lords or Commons had any Authority to use King Richard as they did; since it is a contradiction that any power should Judge that, on which it depends and who dieing, that is immediatly dissolved, since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments, and certainly they can never be supposed to let them sit to depose themselves. And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum (breve non currat contra ipsum) Locus erit supplicationi, quod factum suum corrigat & emendat, quodsi noh fecerit, satis sufficit ei ad pænam, quod Dominum expectet ultorem.
But to return where we left off, if it be granted that Kings do Swear to observe all the laws of their Kingdomes, yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself; For says he, no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs,Patriarch p. 97.now if a private man make a contract, either with or without an Oath, he is no farther bound then the equity and justice of the contract ties him; for a man may have relief against an unreasonable, and unjust promise, if either deceit or Errour or force or fear induced him thereunto: Or if it be hurtful or grievous in the performance; and since the Laws in many cases give the King a Prerogative above common Persons, I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy.
I know not to what end the Author writ this Paragrph, unless it were to make the world beleive, that when Kings take their Coronation Oaths they do it not freely; but only are drawn in, by the Bishops, or overawed by the great Lords; that they do not understand what they do, and so are meerly choused, or frighted into it by Fraud, or Force. A very fine excuse for a Prince for so solemn an action, and which he hath had time enough to consider of, and advise with his own Conscience, whether he may take it or no: That he can be said to be induced by Fear or Force, who was a lawful King before, and only uses this ceremony to let his Subjects see the reallity of his intentions towards them. And that nothing shall prevail with him to break his Oath which he hath made before God. That he will preserve those Laws and rights of his Subjects, which he does not grant but find them in possession of: But as for this relief against an unreasonable, or unjust promise as the Author terms it. If by those words he means a promise, or grant that may tend to some damage, or inconvenience of the Promiser or Grantor, to some right or Jurisdiction that the Grantor might have enjoyed, had it not been granted away, either by his Ancestors, or himself; If the Promise were full, and perfect, or the grant not obtained either by fear, force, or Fraud; all Civilians, and Divines hold that the Promiser, or Grantor is obliged to the Promise, and cannot take away the thing granted, though it were in his power so to do. For David makes it part of the Character of the upright man,Psal. XV. 4. and who shall dwell in Gods Tabernacle, that sweareth to his own hurt, and changeth not. But our Author hath found a way to set all men loose from their Oaths, or contracts if they be any thing grievous, or hurtful in the performance, that is if the Promiser, or Grantor think it so: and Kings must have at least as much, and in most cases a greater Prerogative than common Persons. ‘It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta, which he had made before in Parliament at Oxford. Anno Regni. 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths, if ever they find them uneasie to them.
But Edward 1. that great Prince was of another mind, who in his Letter to the Pope concerning the Tribute granted by King John. Et super hoc nequiverimus ejusdem deliberationem habere cum Prelatis et proceribus ante dictis,Mat. Paris. P. 435.sine quorum Communicato Concilio Sanctitati vestræ non possumus respondere, et jure jurando Coronatione nostra præstito sumus astricti, quod Jura Regni servabimus illibita, nec aliquid quod Diadema tangat regni ejusdem absque ipsorum re quisito comsilio sacimus. So likewise that Victorious Prince Edward III. in the preamble to the new Statute of Provisors Anno Regni. 25. Which Statute viz. repealing a former Law viz. 35. Edward I. which said this Statute holdeth always his force, and was never defeated or annulled in any point, and by so much as he is viz. the King bound by his Oath to do the same, to be kept as the Law of the Realm.
But I come now to the last main Objection which the Author makes against limited Monarchy; and by which he hopes to prove it an absolute Monarchy: I will set down the difference between our Author, and Mr. H. upon whom he animadverts in their own words. ‘First Mr. H. holds that the King himself in a limited Monarchy is not to be resisted or punished any more then in absolute Monarchy, and so can doe no wrong in his own person.
‘Yet if he this limited Monarch transcends his bounds, if he commands against Law, the subject is not Legally bound to obedience in such cases, whereupon our Author asks who shall be Judge, whether the Monarch transcend his bounds? Mr. H. conceives that in a limited legal Monarchy, there can be no stated external Judge of the Monarch’s actions, if there grow a fundamental variance betwixt him, and the Community. And in another place consesses that there can be no Judge Legal, and constituted within that form of Government, whereupon the Author thinks he hath got a great advantage over our Gentleman, and therefore is resolved to put the question home, and demands of him if there be a variance betwixt the Monarch, and any of the meanest persons of the community who shall be judg? for instance, the King commands or gives Judgment against me: I reply his commands are illegal, and his Judgments not according to Law: who must judge? if the Monarch himself judge, then you destroy the frame of the Government, and make it absolute: For saith Mr. H. to confine a Monarch to a Law, and then to make him Judge of his own deviations from that Law, is to obsolve him from all Law, and on the other side, if any or all the People may Judg, then you put the Soveraignty in the whole Body, or part of it, and destroy the Being of Monarchy, and thus this Author (says Sir R. A.) hath caught himself in a plain Dilemma: if the King be Judg, then he is no limited Monarch, if the people Judg, then he is no Monarch at all: so farewell limited Monarchy, nay farewell all Government if there be no Judg.
But as sure as this Author thinks he hath his Adversary at an Advantage, yet I do not see that he hath given him so much as a Foyl, much less a fair Fall, for all this terrible Dilemma. For first, it is for this, that if the people be Judg when the Princes commands are unlawful, it will therefore destroy the being of Monarchy; suppose a King should command all his Subjects to go to Mass, which they being Protestants judg Idolatrous. If they obey him, they must commit Idolatry, if they disobey him he is then no Monarch. But perhaps it will be replied, that it is true, the Subjects may judg when the Command is unlawful, but if they cannot yield active obedience, yet they must yield a passive one, and submit patiently to the Penalties he pleases to lay upon them for not going. This Answer will not serve turn, for the Authors Objection is general, if the people judg, (he does not say resist) he is no Monarch at all: and refusing to go to Mass is a judging the Princes Command unlawful. But Mr. Hobs, from whom this Argument is borrowed, drives it more home, (if the Authors friends will admit the Consequence) & affirms truely upon his own principles, that if the Subject do judg in any case whatever, of what is lawful or unlawful, good or evil, it quite destroys-the Monarchy. For the Monarch is sole Judg of all Actions, whether they be Lawful or not. Now when the Monarch hath declared his Will, that all his Subjects should go to Mass, surely not to go, is to disobey the Monarchs Command. Since his will was, they should absolutely go to Mass, nor leave it to their discretion either to go to Mass, or undergo the Penalty ordained for not going. Lastly, neither does the Judgment of the people concerning their own safty, in many cases, take away the absolute power of a Monarch. For a General of an Army hath an absolute Power over the Lives of his Soldiers but does it derogate from his absolute power, that he knowes he shall not be obeyed if he command his Men to leap down a Precipice, or to kill each other?
‘But Mr. H. proposes two or three expedients to help this inconvenience of the want of a publick Judg. First. He says a Subject is bound to yield to a Magistrate, where he cannot de jure challeng obedience, if it be in a thing in which he can possibly do it without subversion to the Government, and in which his Act may not be made a leading Case, and so bring on a prescription against public liberty. And again, he saith, If the Act in which the Exorbitance, or Transgression of the Monarch is supposed to be, be of lesser moment, and not striking at the very Being of the Government, it ought to be borne by publick patience, rather then to endanger the Being of the State. But these Salvoes however moderate and sober, will not please our Author at all.Anarchy 285. ‘For he will have them to be but Fig-leaves to cover the nakedness of Mr. H’s limited Monarch formed upon weak supposals in cases of lesser moment. For if the Monarch be to govern only according to Law, no transgression of his can be of no small moment, if he break the bounds of Law; for it is a subversion of the Government it self, and may be a leading case, and so bring on a prescription against publick Liberty; and strikes at the very being of the Government it self; and let the case be never so small, yet if there be illegality in the Act, it strikes at the very being of limited Monarchy, which is to be legal, unless the Author will say, as in effect he doth, that his limited Monarch must govern according to Law, in great & publick matters only, but that in smaller, and which concern private Men, he may rule according to his own will.
All which, although it look fine, yet examined to the bottom signifies little, for it is not true, that every the least transgression of the bounds of Law, is a subversion of the Government it self, since if done perhaps only to one or a few persons, it does not follow that therefore it must be a leading case, and so bring on a prescription against publick Liberty in all cases. Neither does the Subjects bearing with it not contribute otherwise then accidentally to this breach of Liberty. Since he is obliged to bear it, not because it is just, but because he either may hope to have redress by the ordinary course of Law, or else by petitioning the Assembly of Estates, when they meet, who are partly ordained on purpose to remonstrate the Grievances of Subjects to their Prince, and thereupon, to have them redressed. Nor is this limited Monarch (as the Author would infer) less obliged to govern according to Law, in smaller or private matters, then in great and publick ones. Only in many smaller matters, Princes or their Officers may through ignorance or inadvertency sometimes transgress the true bounds of Law, which they would not do perhaps if they were better informed. And so likewise if the Subject bear it, it is not from the Legality of the Act, but from this great Maxime in Law and Reason, that a mischief to some private men, is better than an inconvenience in giving every private person power, that thinks himself injured by the Prince or his Officers, to be his own Judg and night himself by force; since that were contrary to the great duty of every good Subject of endeavouring to preserve the common peace and happiness of his Country, which ought to be preferred before any private mans Interest. So on the other side if the oppression or breach of Laws be general, and extend to all the People alike: if the reason of the case alter, why may not the practicedo so too. ‘But Mr. H. gives us another remedy in this case; that if the Monarchs Act of Exorbitancy or Transgression be mortal, and such as suffered, dissolves the Frame of the Government and publick Liberty, then the illegality is to be laid open, and redressment sought by Petition. Which is true, for an Appeal to the Law from the violence of subordinate Ministers, is really a Petition for Justice to the King himself, who is by the Law supposed present in the persons of his Judges that represent him: and this the Author himself in a better humour does confess in his Patriarcha P. 93. The people have the Law as a familiar interpreter of the Kings pleasure, which being published throughout the Kingdom doth represent the presence and Majesty of the King; also the Judges and Magistrates are restrained by the common Rules of Law from using their own Liberty to the injury of others, since they are to judg according to the Laws, and not to follow their own Opinions. And because it might so happen that the King may be sometimes surprised or importuned to write Orders or Letters to the Judges to direct them to act contrary to the Law. The King himself in Parliament hath declared,See the Oath of the Justices, 18. E. 3. what Oath these Justices shall take when they are admitted into their Office where among other things they swear thus. And that ye deny no man common right, by the Kings Letters nor none other mans, nor far none other cause, and in case such Letters do come to you contrary to the Law, that ye do nothing by such Letters but certifie the King thereof, and proceed to execute the Law, notwithstanding the same Letters, and concludes thus. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the Kings will of Body, Lands, or Goods, thereof to be done as shall please him, as God help you, &c. And the Lord Chief-Justice Anderson and his Fellow-Justices in the Common-Pleas, who upon so great a point as Cavendishes. Case was, 35 El. having consulted with all the Judges of England, delivered their Opinions solemnly in writing, that the Queen was obliged by her Coronation-Oath, to keep the Laws, and if they should not likewise observe them, they were forsworne. Anderson, p. 154, 155. Which Will of the Kings is supposed to be as well declared by the House of Peers his supreme Court of Justice, as by any other way. See the Judgment upon Tresillian and the rest of his Brethren 21 Rich. 2. and the Impeachment of the House of Commons against the Judges that gave their Opinions contrary to Law, in the case of Ship-money, Vide the subsequent Act of Parliament, 17 Car. 1. Chap. 14. declaring that upon the Tax called Shipmoney and the Judgment Entr. 1. H. 7. 4. b. the judicial opinions of the said Justices and Barons were, and are contrary to the Laws and Statutes of this Realm; and the Liberty of the Subjects, &c. which if it be truely observed, there can never be any fear of a Civil War or popular Commotion, since our Law supposes the King can do no wrong, that is in his own person. And therefore Sir John Markham, when Chief Justice told King Edward the 4th. That the King cannot arrest any Man himself for suspition of Treason or Fellony as other of his Lieges may: for if it be a wrong to the party grieved, he has no remedy. Therefore if any Act or thing be done to the Subject contrary to the Law, the Judges and Ministers of Justice are to be questioned and punished if the Laws are violated, and no reflection made upon the King, who is still supposed to do his Subjects Right. Si factam fuerit injustum (says Bracton per inde non fuerit factum Regis. And thus much will serve for a further Answer to the Authors Query before mentioned. Whether it be a sin for a Subject to disobey the King if he command any thing contrary to his Laws, since all the Subjects both great and small are supposed to know what the Rights and Priviledges of the Subject are, as well as what are the Prerogatives of the Crown, nor are these reserved Cases so many or so difficult as the Anthor would make us believe; but that they may be easily understood without Appealing to any other Judg then the Conscience of every honest man. And though the King may for our common defence in time of War make Bulwarks upon another mans Land, or command a House to be pull’d down if the next be on Fire: or the Suburbs of a City to be demolished in time of War to make it serviceable; though men may justify their obedience in such Cases, yet it were folly and madness from thence to argue, that the King were as much to be obeyed if he commanded us to pull down a whole Town for his Diversion, or to take away all mens Lands or Goods at his Pleasure. Since if he should be so weak as to command it, it were his unhappiness that he had no more understanding. But it would be our Crime, and we alone were punishable, if we should obey such a Command, and it is only upon this supposition, whether the sufficiency of the Protection of our Laws and the integrity of the Judges, declared in the 14th of his now Majesties Reign, by the Act concerning the Militia, be full? that it is a Traiterous Position that Arms may be taken by his Majesties Authority against his Person, or against those Commissioned by him, in persuance of Military Commissions; Because they suppose the King will not make use of the Militia for the destruction but the preservation of the Subjects just Rights, and because all Officers of the Army or Militia, are at their Peril, to take notice whether their Orders are according to Law or not. For they put it thus, though to take free Quarter or to hang a man by Martial-Law in time of War be lawful, yet to do so in time of Peace, though in the Kings Name, is Robbery and Murder. Andof this Opinion is that antient Book called the Mirror of Justices, Chap. 1. Sect. 10. De Larcine.
En cest Peche (viz. Robbery) chiont tonts ceux que pernont le’ autrun per l’ Authorite del Roy en le’ autre Grand Seigneur sans le gree de ceux aux queux les biens sont. Into this Crime (viz.) Robbery, all those do fall who take the Goods of another by the Authority of the King, or any other great Lord without their Consent. ‘Nor I dare say, will any honest well meaning Subject be discontented, if in case of extream necessity, or some sudden danger the King should somewhat exceed his Prerogative for the defence of the Kingdom further then the Law will allow. Since in matters of private concern, a Man will not be angry with his Agent or Factor whom he hath impowered to look after his Business in another Countrey, if the Agent, perceiving the person for whom he is intrusted, does not understand how his concerns in that place stand, and that the Affair will not permit him to send again for farther Orders, if he act contrary to his first Instructions: since if he did not, his Friends or Masters business would be lost. Much more in the case of a King, who besides the peoples concerns, with which he is intrusted, hath likewise his own Crown and Dignity at Stake. So likewise a King will easily pardon a Subject who upon a sudden Insurrection or Invasion, raises Forces and marches against the Enemy, without staying for a Commission; and when a Prince hath so well satisfied his Subjects that he never intends to make use of this Prerogative but for the good and preservation of his people, he may do almost what he pleases, and no body will be concerned. And this made Queen Elizabeth meet with that great Affection and Confidence that she did throughout her whole Reign; for though she sometimes exercised as high Acts of Prerogative assome of her Predecessors, yet she had the good luck to have scarce any of them questioned in Parliament: because the whole Nation was satisfied, she acted for the best, and sought no other end but the publick good and safety of the Kingdom. Which, had she permitted Spain to have swallowed up France and the Low-Countries, it would have been a hard task to perswade them.
But Mr. H. proceeds in the same Paragraph, and supposes that redressment by Petition failing (that is, that the Judges either do not, or will not act according to their Oathes) then (if the Exorbitancy ‘or transgression be mortal to the Government) 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 Monarchy must judg and pronounce sentence in every mans Conscience, and every man (so far as concerns him) must follow the Evidence of Truth in his own Sense, to oppose or not oppose according as he can in Conscience acquit or Condemn the Act of the Governour or Monarch.
This our Author finds fault with: ‘First, concerning the laying open of illegal Commands, he will have Mr. H’s meaning to be, that each private Man in his peculiar case, should make a publick Remonstrance to the World, of the illegal Acts of the Monarch, and then if upon his Petition he cannot be relieved according to his Desire, he ought to make Resistance. Whereupon the Author would know who can be Judg, whether the illegality be made sufficiently 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 moderate and indifferent 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 erronious.
In which Annimadversion of our Author, he first lays that to Mr. H’s Charge, which he does no where affirm; that every particular Subject, when injured, should make a publick remonstrance to the people; but only lay it open to the Monarch, or his Judges that represent him, by Petition. And sure there is a great deal of difference between a Petition, and a Remonstrance. He does not say that every single Subject failing of Redress by Petition, ought to make resistance in his own case, for he before supposes the Exorbitant Act or Transgression not to be Mortal, & such as suffered, dissolves the Frame of the Government and publick Liberty. And that in such lighter cases for the publick Peace, we ought to submit and make no resistance at all, but de jure cedere; which can never sall out, as long as this Transgression or Exorbitance extends it self only to some particular men.
2. Our Author will have no particular man to be Judg in his own Cause. I grant it, if by Judg he means Execution too, by publick resistance. Otherwise a mans passing his judgment or declaring it, that he thinks himself injured, suppose by a Decree in Chancery or Act of Parliament, does not disturb the Goverment or publick Peace. But he may if he please bring his Appeal, or a new Bill in Parliament and have the unjust Decree or Act reversed, which he can never do, if he did believe he ought not to make the injustice or illegality of this Act or Decree apparent to those that are to give him redress, but if this Exorbitant Act or Transgression be general and presses upon all alike, I deny that 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. For suppose the illegal Act were so publickly declared that for the future all Taxes should be raised without consent of Parliament: or that all men should be tried for their Lives without Juries. I would fain know whether the Judgment not only of the Commonalty, but of all the people, may not be easily known, though not gathered by Vote? or whether it would be various and erroneous in these cases. Fr the people though they do not argue so subtilly as our Author does, yet in their Sence of Feeling, when wrong’d or hurt, are seldome mistaken.
Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind, that being made, that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience, here he would fain learn of Mr. H. or any other for him, what a Fundamental Law is, or else have but one Law named to him, that any Man shall say is a Fundamental Law of the Monarchy.
Well, to do the Authors Friends a pleasure, (since he is dead himself) I will name one that he himself would deny to be one in this Monarchy; and that is, that the Crown upon the death of the King should descend to the next Heir, and so we have one Fundamental Law, and I hope there may be more. But he says Mr. H. tells us, ‘that the Common Laws are the Foundation, and the Statute Laws superstructive. Yet our Author thinks that Mr. H. dares say, that there is any one branch or part of the Common Law, but may be taken away by Act of Parliament; for many points of the Common-Law (de facto) have, and (de jure) any point may be taken away. How can that be called a Fundamental, which hath and may be removed, and yet the Statute Laws stand firm and Stable! It is contrary to the Nature of a Fundamental, for the Building to stand, when the Foundation is taken away.
All which, is mere wrangling about the Metaphor of a Foundation and a Superstructure, as if such expressions required an absolute Physical Truth as they do in the things from which they are taken.
It is already granted, that all Laws in a limited Government, but those of Nature, and right Reason are alterable, because the Governmen it self is so, and in respect of which alone they may be called Fundamental, or Foundations of the Government, but these being altered, it would cease to be the same kind of Government it was before.
I will not affirm, but the people of this Nation may give away their present Rights of not having any Laws made, or Taxes imposed upon them without their consent, or of not being perpetually kept in Prison or put to death without legal Trial.
But these being altered, it would cease to be limited and turn to an absolute Monarchy, and all Statutes concerning any of these would be so far Superstructives, as to signify nothing when the Foundations are taken away, and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone, I know not, since all Laws after that would depend upon the sole will of the Monarch.
His second Reason is, ‘That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome, which by length of time only obtains Authority: so that it follows in time after Government, but cannot go before it, or be the Rule of Government by any Original Radical Constitution.
Which is not true, as the Author hath laid it down; for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted: and therefore his consequence that follows from this is false. For some parts of the Common-Law of England, are without doubt as antient as the Government it self. Thus, though some parts of our Common-Law may have proceeded from some later Customes, or particular Judgments and resolutions of the Judges in several Ages, yet without doubt, Property in Goods and Land and Estates of Inheritance, and the manner of their descent are as antient (since they came over with our Saxon Ancestors) as the Government it self, since some of the Laws. As, that Brethren by the half-Blood, should not be Heirs to each other. That an Estate should rather Escheat then ascend to the Father, upon the death of his, could only proceed from the Custome of the antient Saxons. For certainly, had we not been used to them, we should scarce allow them to be reasonable. But it is in nothing more visible then in those Tenures (which the modern Civilians call Feudat) which L. Ca. 3. §. 23. Grotius tells us, are not to be found but among the Germans, and those Nations derived from them,Tacit. de Mor. Ger. cap. 40. as both our Saxons and Angles were. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note, and those that had a share in the Land. de minoribus rebus Principes Consultant, de majoribus omnes, ita tamen ut ex qnoque quorum penes plebem arbitrium est, apud Principes prætractantur. In this great Council they tried Offenders in Capital Crimes. Licet apud concilium accusare queque & discrimen capitis intendere,Id. Cap. 12. nor was the power of their Kings or Prince absolute, as appears by the passages in the same Author.Id. Cap. 7:Nec regibus infinita aut libera potestas, &c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests.Id. Cap. 11.Mox Rex, vel Princeps prout ætas cuique prout nobilitas, prout decus bellorum prout facundia est audiuntur, autoritate suadendi, magis quam jubendi. And though our first Saxon Kings might have more conferred on them then this, yet it is altogether improbable, that Hengest and the rest of those Princes who erected an Heptarchy in this Island, comeing hither not as Monarchs over Subjects, but as Leaders of Voluntiers, who went to seek a new Country, should be so fond of a Government they never knew, as to give these their Gennerals an absolute despetick power over their persons and Estates, which they never had in their own Country; and by which Liberty, they had so long defended it against the utmost effects of the Roman Empire; therefore says the same Author, Ne Parthi quidem sepius admonuere,Id. Cap. 37.quippe Regno Arsacis acrior est Germanorum Libertas. The sence of which is, The Parthians themselves have not oftner rebuked us; for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces.Pat. p. 116, 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose, though he will not have our Parliament antienter then about ‘the time of the Conquest, because until those days we cannot hear it was entirely united into one Kingdom, but it was either divided into several Kingdoms, or Governed by several Laws, as when Julius Cæsar Landed, he found four Kings in Kent. The Saxons divided us into seven Kingdoms: and when they were united into a Monarchy, they had the Danes for their Companions, or Masters in the Empire, till Edward the Confessors days. Since whose time the Kingdom of England hath remained as it does.
In which passage the Author hath discovered, either a great deal of Ignorance, or inadvertency in the History and Government of his Country. For first he Confesses that the English Saxons had a Meeting, which they called the Assembly of the Wise, termed in Latine, Conventus Magnatum, or Præsentia Regis, Procerumque Prelatorum Collectorum, or in general, Magnum, or Commune concilium, &c. All which Meetings may in a general sence be termed Parliaments: yet he will not allow, there could be any Parliaments assembled of the general Estates of the whole Kingdom, for the reason he gives us before. What he means by, until about the time of the Conquest, I know not; but this is certain, that from the time of King Egbert, who is reckoned the first Monarch, the great Council, or Wittena Gemore consisted of the General Estates of the West-Saxon-Kindom, and if the whole people of England had not their Representatives there, it was because they were represented by their Tributary Princes or Kings, who Governed Subordinately to this Monarch, until the coming of the Danes. Thus the West-angles had their particular Kings in the time of King Ethelwolf St. Edmund the last King being Conquered by the Danes. So likewise had the Mercians their King Beorced; their last King being driven out by the same Invaders about the same time, and after the Kingdom was at Peace again, and the Danes in great part subdued or quiet, King Alfred Re-conquering the Mercian-Kingdom, gave it in Marriage to a Saxon Nobleman called Etheldred, who had Married his Daughter Elsteda, who was long after her Husbands Death Lady, or Queen of the Mercians; yet did these feudatory Princes always appear and make a Part in the Wittena Gemore or great Council of the Monarch,Rerum Anglick Scriptores post Bedam. Ed Fra. p. 857. thus we may find in Jugulphus that Withlafe King of the Mercians made a promise of the Lands and Liberties of the Abby of Croyland, (which he after confirms by his Charter) in Prisentia Dominorum meorum Egberti Regis Westo-Saxoniæ & Athelwolwafij filij ejus, coram pontificibus & proceribus totius Angliæ, in Civitate Lundini (ubi omnes Congregati sumas pro consilio capiendo contra Danicos Pyrat as Littora Angliæ infestantes) which certainly was a great Council. And that these Kings were tributary to the West Saxon Monarch, the same Author tells a little further, that Bertulth Brother of Witlafe,Id. p. 860, 861. succeeded his Nephew Wimund, and was Tributary to Athelwolf King of West Saxony; and by his Charter confirms the same Lands and Liberties to the said Monastery which had been granted by his Predecessors: and this was done and confirmed, unanimi consensu totius præsentis cencilij hic apud Kingsbury Anno incar Domini 881. &c. pro Regni negotis congregati, and is thus subscribed, Ego Olstac Pincerns, & Legatus Domini mei Regis Ethelwolf, & Filiorum suorum nomine illorum & omnium West saxonum istum Chirographum Regis Bertulphi plurimum Confirmavi. Ego Bertulphus Rex Mericorum palam omnibus prelatis & Proceribus Regni mei. Which shews us, that besides the General Council of the whole Kingdoms these Mercian Tributary Kings had a Particular Council or Parliament of their own Kingdom without whose consent as also of their Paramount Monarch they could not part with the Lands, and Royalties belonging to their Crown. So likewise in the same Author, Beorced King of the Mercians, Anno Domini 868 confirms his Charter to the same Monastery at Snotringhani, coram fratribus, & amicis & omni populo meo in obsidione Paganorum Congregatis. To which likewise his supreme Monarch Elthred King of the West Saxons, gives his consent, and subscribes after the Bishops: the like form we find in the passing of all the other Charters to this Monastery, quoted by the said Author which are all of them confirmed by the King then Reigning, & in præsentiæ Archiepiscop. Episcop. Procerum (or optimatum Regni Collectorum. And before the Kingdom came to be united under one supreme King or Monarch, there was also one great Council or Synod of the whole Kingdom, where the chief and most powerful King or Monarch of the Heptarchy presided, and in which they made their general Ecclesiastical Canons, and also Civil Laws that were binding to the whole People of England, and to which Persons that had been grieved or wronged by their particular Kings appealed, and were righted, and to this general Wittena Gemote, that antient Writer Will. Malmsbury, speaking of the antient Customs and Laws of England says were made per generalem Senatum & populi Conventum & edictum: therefore we find the first: Synod or Council of Clovesho,Anno Christ. 747. called by Ethelbald King of the Mercians, who was then chief King or Monarch as they called him of the English Saxons, and at which were present the said King, with all his Princes and great Men: as also all the Bishops of this Island:Malm. de gest. pontific. but it more plainly appears in the second Council held at the same place, called by Beornulf King of Mercia, who presided therein. You will find one of the first things they did, was to inquire whether any person had been unjustly dealt with, or unjustly spoil’d or opprest,Spelman. Council. p. 332. where upon Wulfred Arch-Bishop of Canterbury complain’d of the violence and Avarice of Kenwulf late King of the West-Saxons, which beingfully proved, the said Council ordered Kenedrith the Abbess, the daughter, and Heir of the said King, to make satisfaction to the said Arch-Bishop: which was done accordingly, out of the Lands of the said King, see it at large in Spelmans Councils. and Mr. Somner (that Learned Antiquary) in his Glossary to the decem Scriptores is clearly of opinion, that this was all one with a Parliament Synodus magna Parliamentum nuncupatur.Spelman Conncil, pag. 393. So likewise the Canons of the Synode or Council of Catchyck Annol, were confirmed by Offa King of the Mercians, then Chief Monarch of this Island. Tam Rex quam Principes sui cum senatoribus terræ decreta signo Cracis firmaruni. And further that each of the Kingdoms of the Heptarchy had its particular Councils or Wittena Gemotes appears by that famous Council called by Ethelbert King of Kent, about Six Years after his Reception of the Christian Religion, which was called common: concilium tam Cleri. quam Populi: And no doubt this custom came not in with Christianity: the Clergy onely here succeeding in the room of the Pogan Priests, who among the Germans had always a place in their common Councils as we find in Tacitus.See the passage before Cited, p. Spelman, Con. pag. 126. So likewise the first Laws we have extant were made by Ina King of the West-Saxons, Per commune concilium & assensum omnium Episcoporum, & Principum Procerum, comitum, & omnium Sapientum, Seniorum, & Populorum totius Regni: And whoever will but examine the said Collection of Sr. Henry Spelman, will find almost all the Ecclesiastical Constitutions confirmed, if not made in the Wittena Gemote, the Great Synode or Conncil. So that what this Author says of the difference of the Laws, and Customs of the several Kingdoms during the Heptarchy, makes nothing against us, as long as we can prove that in the main, the Government of them all was alike in the three great Liberties of the Subjects, viz. Trial by a Mans equals, and absolute Propriety in Lands, and Goods which the Kings could not justly take from them; and a Right to joyne in the making of all Laws, and raising Publick Taxes, or Contributions for War. So that without doubt these Wittena Gemotes, or great Councils were Ordained for some Nobler and Higher purpose, then either to give the King advice, what Wars to make, or what Laws to make, or barely to Remonstrate their grievances (as this and some other Modern Authors would have it) for what King would call so great a Multitude those Antient Parliaments consisted of) to be his Councellors: Or would call together the whole Body of a Nation, only to be made acquainted with their grievances, which he might have known with greater ease to himself, and less charge to the Subjects; by having them found by the Grand Inquest in the County-Court: And so to have been presented to him by the Earl, or Alderman of each particular County; whereas we find these great Councils imploy’d in businesses of a higher Nature; such as the confirmation of the Kings Charters, the Proposing of Laws, the Election of Archbishops, & other great Officers: So that the Higher any Man will look back, the more large, & uncontroulable he will find the Power of this great Assembly: Since before the Conquest, and afterwards too, we find them to have often Elected Kings, when the Children of their last King were either Minors, or supposed unfit to Govern. So that whoever will take the pains to consult our Ancient Saxon, and English Historians, will find that there was never Anciently any Fundamental, or unalterable Law of Success on: nor was it fixed for any two Discents in a right Line from Father to Son without interruption, until Henry the Third: and then it lasted so but Four Generations reckoning him for the first. And as for these particular Laws, or Customs the Author mentions whether King Edgar, or Alfred, first Collected them, as were also Corrected and Confirmed by both the Edwards, to wit, the Elder and the Confessor; they still owed their Authority to the King,Vi. Lambert de priscis Anglorum Legibus, p. 1[Editor: illegible character]9. and his Barons and his People as Malmesbury before asserts. As for the Danish Laws, they never prevail’d, but in those Countrys which the Danes intirely Conquered, which consisted mostly of them: as Norfolk, Suffolk, and Cambridge-shire; but as for the rest of England it was governed by its own Laws, and enjoyed its Ancient Customs in the Reign of King Knute and his Successors of the Danish Race.See the Charter of K. Knute quoted by Mr. Petyt. in his said Treatise pag. 146. But to come to the Authors next Reason why there can be no Fundamental Laws in this Kingdom, viz. Because the Common Law being unwritten, doubtful and difficult, cannot but be an uncertain Rule to govern by, which is against the Nature of a Rule, which always ought to be certain. This is almost the same Argument as the Papists make use of against the Scriptures being a Rule of Faith, only their Reason is that the Scriptures are obscure, because they are Written and need an Expositor, viz. The Church, or Tradition; but with Authors it is contrary, the Law is doubtful, because unwritten, whereas all that understand any thing of the Nature of the Laws of England, know very well that the Common Law, whose Authority depends not on any set Form of Words, but the Sence and Reason of the Law is much less doubtful, and makes fewer Disputes then the Statute-Law; but though it be granted that many things in the Common Law, are doubtful and difficult; yet in the Main and Fundamental parts of it, but just now recited, it is plain enough: (As the Scriptures though doubtful or obscure in some things; yet are plain and certain in all Points necessary for Salvation; and why it is harder for an ordinary Countrey Fellow in a Civil Government, to know when he is Condemned to be Hang’d without trial or to have his Goods, or Money taken from him, by a Fellow in a Red-coat without any Law, then for him to judg in the State of Nature, when another Man lies with his Wife, or goes about to Rob or Murther him I know not. His last Reason against making Common Law, only to be the Foundation, when Magna Charta is excluded from being (according to Mr. H.) a Fundamental Law, and also all ‘other Statutes, from being limitations to Monarchy, since the Fundamental Laws only are to be judg; and these are Statute Laws or Superstructures. This is also meer Sophistry, since no Man in Metaphors or Similitudes ever expects an absolute Truth; but what if the great part of the Magna Charta were Fundamental Laws before either King Stephen, or King John granted it, and that they did but restore what some of their Predecessors had before by oppression taken from their Subjects; since there is little or none of it, but was part of King Edward’s Laws, and consequently the Ancient Saxon Law before the Conquest; and the like may be said of all other Constitutions in limited Monarchies; as suppose, in Denmark, the Crown which was before Elective, is now by the Concession of the Estates, become Successive; I believe no Men of this Authors Opinion will deny, that this is not now a Fundamental Law in that kindom, and can never be altered without the Consent of the King and the Estates, and yet this is a Law that follows after the Government was instituted; nor can I see any Reason, why this Rule may not hold as well on the Peoples side, as the Kings. Why Rules of Play may not be made as well after the Gamesters are in at Play, as when they first began; and may not be as well called Fundamental Laws of the Game; since if they are not observed, it may be lawful for any of the Gamesters to fling up his Cards, and play no more, though he be at play with (the Authors Natural Monarch) his own Father.
But our Author will not leave off fo, but must give us one stabing Paragraph more against Fundamental Laws, which is thus, ‘Truely the Conscience of all Mankind is a pretty large Tribunal, for these Fundamental Laws to pronounce Sentence in. It is very much that Laws which in their own Nature are dumb and always need a Judg to pronounce Sentence, should now be able to speak, and pronounce Sentence themselves: Such a Sentence surely must 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 Conscience in each Mans Cause; who will but question the Legality of the Monarchs Government. Certainly the Sentence cannot but be unjust, where but one Mans Tale is heard.
The first Sentence of this Paragraph is Answered sufficiently in the Observation upon the last Reason; but one. As for Written Laws, every Body knows they are a dumb Letter, as they lie in Ink & Paper, but as they come to be from thence Copied out and fixed in Mens Memories they are not dumb, neither always needs a Judg to pronounce Sentence, but are able enough to speak oftentimes against the Sentence of an unjust Judg, and all the Standers by can easily tell if a Judg should go about to Trie and Condemn a Man without ever Impanelling a Jury, nor needs there any Defence for the Judg in this case; but that a Man may safely give his Sentence in this Case without hearing the Judges Reason; since it is plain there can be none given. But as for the Monarch, it is supposed that he hath already made his Defence by his Atturney, and produced his Witnesses when the Subject Petitioned his Judges to right him in what he conceived to be an Oppression. So that the Sentence cannot be unjust, where but one Mans Tale is heard. But if the Judges in this Case (as in that of Ship-Money) cannot convince the Plantiff, but that he is oppressed contrary to Law. It is neither his nor their Judgment that can alter the Case: But if he can have no other remedy, he must even go home and expect better opportunities of being righted, as when there are honester Judges; or the calling of a Parliament, one of whose ends is to redress grievances of that kind by representing to the King the faults and transgressions of his Ministers, who only are punishable, and answerable for the injustice; since the King in his own Person can do none (as I have often affirmed) as for Mr. H’s conclusion, that every man must oppose or not oppose the Monarch, according to his own Conscience, when he can have no other redress, I do not approve of it. For I will not suppose any time (in which this Nation is not oppresed by a standing Army, or Men of different Principles in Religion and Government;) but the Subject may find redress, if not at one time, yet at another. But the other part of the dispute between our Author and Mr. H. whether this Power of every Mans judging of the illegal Acts of the Monarch argues not a Superiority of those who Judg, over him who is Judged, because it is not Authorative and Civil, but Moral residing in Reasonable Creatures, and lawful for them to execute, which is not so hard to understand as the Author makes it, if we take this Word Moral (as it is plain Mr. H. uses it) in contradiction to Civil Power, which is such a right of acting as every private Man hath, though he hath no Civil Authority. For a Mans bare judging of the justice and injustice of all Actions that concern him, or any other man, are inseparable from the Nature of Man? whether they are ordered by a Prince, or private Man; and a Princes commanding this or that to be done, or giving his judgment this way, or that way, cannot alter these settled Rules whereby Men judg of right and wrong. So that if this Author or his Friends will make use of Mr. Hobs’s Arguments of the necessity of the Judgment of one Man in all Points whatever, they must likewise take what follows, that there is likewise no good, or evil, or right, or wrong in the state of Nature, but what the Monarch judges to be so; and when that is done, if the Authors Friends have any Religion, let them see what they will get by it; but the Author supposes he hath sufficient advantage over Mr: H. because he hath laid it down in the Page before going; ‘That resistance ought to be made, and every Man must oppose, or not oppose, according as in Conscience he can acquit, or condemn the Acts of the Governour. For (says the Author) if it enable a Man to resist, and oppose his Governor without Question ’tis Authoritative, and Civil. As for Mr. Hobs’s Assertion) I will not take upon me to meddle in so nice a Point, though he hath in all his work supposed such resistance lawfull only in limited, or mixt Monarchies, and not in absolute ones; and likewise then only when all other ways, and means have proved ineffectual; and of this opinion likewise the Author of the Excellent Poem, called, Coopers Hill, seems to have been; which I rather take notice of, because the Author was never look’t upon, but as a great Friend to Monarchy: and this Poem it self speaks him no Presbyterian. Both the Verses and Sence are so good, that perhaps it may refresh the Reader tired with Reading so much drie Arguments to run them over; speaking of the King’s hunting the Stag over Runny-Mead, where the great Charter was Seal’d, he falls into this reflection.
The mischiefs of which extremes if rightly considered, would make all wise Princes, and good Subjects contented with their share; and endeavour to keep the Ballance even, and not to let it incline to either side. As to Magna Charta, I shall only add, that the Defence which the Nobility and People made of their Antient Rights was not condemned or declared Rebellion, either by Magna Charta, or any other Statute; but on the contrary, the breakers thereof were declared ipso facto, excommunicated the solemn form of which (and where the King himself who had so often broke his Oath bore a part) see in Mat. Paris. Anno 125. But to return to our Author (from whom I have a little degressed) I think he is mistaken in affirming all Power which enables in some cases a Man to resist or oppose his Governors, must be Authoritative and Civil: Therefore I shall put the same case again which I did about the beginning of these Observations concerning the Natural Power of Fathers: Suppose a Son cannot otherwise preserve his own Life, or that of his Mother, or Brothers from the rage of his mad or drunken Father; but by holding him, or binding him, if need be; I suppose no reasonable Man will deny the lawfullness of this action; and yet this Power over his Fathers Person is not Authoritative, or Civil, but Moral, and which the Son does exercise not as Superior to his Father, but as a Rational Creature obliged by the Laws of Nature, to preserve his own being, and to endeavour the good preservation of his Parents and Relations, not against Paternal Authority (which is always Rational, and for the good of the Family) but Brutish, Irrational force: Which God gives every Man a right to judg of; so likewise if a Prince prove either a Madman, or a stark Fool, the power which their Subjects exercise in the ordering him, or confining him, and appointing Regents, or Protectors to Govern for him, and in his Name, is not Authoritative, or Civil, since the Prince himself who is the Fountain of all Authority, gave them no such power, and therefore must be Natural, or Moral or residing in them as reasonable Creatures. And of this we have had divers examples. Thus the French were forced to confine their Mad King Charles VI. and appoint his Queen to be Regent during his Distraction. So likewise Joan Queen of Castile, falling Distracted upon the Death of Her Husband King Philip I. Her Father Ferdinand governed in Her right; and after His decease, Her Son Charles afterwards Emperor (she continuing berest of her understanding) was admitted King of Castile. And what hath been done lately in Portugal, is so notorious, that it needs not a particular Recital. So then Mr. Hs. expression, That this is a Moral Judgment, residing in reasonable Creatures, and lawful for them to execute, may not seem so absurd as to imply what our Author endeavours to draw from thence, that Authoritative, and Civil Judgment does not reside in reasonable Creatures, nor can be Lawfully executed: since a Reasonable Creature may be endued with another Power of acting precedent to that of the Civil.
So I shall likewise leave it to the Judgment of the impartial Reader, whether this conclusion sits so well with Anarchy as the Author will have it. As also whether Mr. H. take away all Government by leaving every Man to his own Conscience to judg when the Prince oppresses him; for else how could he sue for relief to the Prince himself; and so all actions a Prince did, or commanded would be just, and lawful though never so contrary to Reason, or positive Law. And so there would be truly (as Mr. Hobs asserts) no other measure of good, and evil, right or wrong but the Princes will.
But as I have no where maintained with Mr. H. in his Treatise, which our Author writes against, that ours is a mixt Monarchy though limited by Law; and therefore shall not maintain as he does the King to be one of the Three Estates (according to the Opinions held during the late Wars. So on the other side, that there is, and ever hath been such a Government as a mixt Monarchy in some Countreys, I hope I have made out (notwithstanding what this Author says to the contrary: and that these might more properly be called a mixt Monarchy, then mixt Aristocracy, or mixt Democracy. Since all Governments of this kind, take their denomination from the most Honourable and Predominant part in it, in whom the Executive or Authoritative part resides.
And though perhaps some of these Governments may not seem so firm, so regular, and well constituted as others, it does not therefore follow that they are meer Anarchies, or that all mixtures, and limitations of Monarchy are vain, or unlawful as our Author imagines.
For a further proof of which, I will not give you my own sence alone, but likewise of that eminent Civil Lawyer Mr. Pufendorf now or very lately Gretian Professor in the University of Upsal, in his excellent work De Jure Nature, & Gentium, Dedicated to Charles the 10th, now King of Sweden, and certainly holding a place of such profit and Credit in his Dominions, he would be too prudent to speak any thing prejudicial to Monarchy, or contrary to the Government of Sweden in particular. But to return to the matter in the above-mentioned Treatise, which for the benefit of those that cannot easily procure the Latine Original Lib. 7. Cap. 5. where speaking before of the several kinds of mixt Governments or Common-wealths. §. 14. He expresses himself to this purpose, as near as I can Translate it. Yet however, as I will not envy the commendation of constancy in any that will obstinately maintain the name of a mixt Common-wealth (to those sorts of Government he had before recited. So it seems to us more ready, and easie for the demonstrating divers Phænomena in certain Common-wealths, if we rather call those irregular Common-wealths, in which neither one alone of the three irregular Forms is found, neither an absolute Disease, or παϱϰβχσις takes place, and which yet cannot be strictly referred to distinct confederate States. Concerning which, it is generally to be observed, that they depart in this from a regular Common-wealth, whilst in them all things do not seem to proceed as it were from one Soul, and will, neither to be governed by one Common Authority. Yet they diffor from the confederate State, in that they are not compounded of distinct and perfect Common-wealths as these are. Yet they are far from those things that they count Diseases in a Common-wealth, because a Disease that always carries with it as it were a shameful and unallowable pretence since it proceeds from the evil administration of a good Form of Government, or from Laws and Institutions ill contrived, and put together. Whereas this irregularity does not only intrinsically affect the very. Form it self, but also being publickly, and lawfully establish’d, dares shew it self openly and without shame. So that a Disease ought to be supposed as not intended by those, who first Instituted this Common-wealth; since the irregularity arose, or was Confirmed from the will or approbation of those of whom the Government was at first Constituted; as a building is one thing, whose design agrees with the Rules of Architecture, but either its materials are naught, or else thorough the carelesness of the Dwellers, the Roof gapes, and the Walls are ready to fall; and another thing where a Model, though differing from the common Rules of Building is de-designed by the Owner or Architect himself. Lastly, some of these irregularities may have continued from the very Constitution of the Commonwealth, & some have crept in by success of time, and by insensible degrees. So that it might happen that a regular Form could not well be Instituted from the very Original of the Commonwealth, or some remarkable mutation of it, either by the Founders, or Authors of that mutation; either thorough their unskilfulness, or because the urgency of their affairs, or temper of the People did not permit them to consider of the means of doing it otherwise; nay oftentimes thorough either the carelesness of those that Govern, or by some other ‘occasion, a Disease invades the Commonwealth, which when it hath taken such deep Root, that it cannot be expelled with out the destruction of the Government, there is nothing then to be done, then that the Disease should cease to be so by a Publick Sanction, and that which hitherto was Usurpation, Faction or Contumacy, may for the future become a Priviledge or right.
So much of Irregular Governments or Monarchies. But in the next Chapter of the same Book, the same Author speaking of the rights of the Supreme power; where when he hath first proved, what it is that makes any Power be called Supreme in a Common-wealth, and that he who hath this Power must be free from punishment, and not obnoxious to humane Laws; and that he hath confuted the Long Parliaments distinction of a real and Personal Majesty, and that Kings properly so called must be Superior to all the People; and having answered the Objections to the contrary, at last he proceeds § 7 to shew what absolute Power is, and that it is not found alike in all Forms of Common-wealths, and gives us the true Original of limited Governments; his sence is so good, that I shall not much contract what he says, but give it you as it is, § 7, 8, 9, 10. Besides it is apparent enough, that in some Common-wealths the Royal Authority is free in the exercise of its Acts, but restrained to a certain Mode of acting, from whence arose the distinction of Empire into limited, and absolute, where in the first place it is to be explained, what is meant by the word absolute, which is so odious to those who have had their Education in free Common-wealths. Indeed the same word being ill interpreted, may incite some Princes to vex their Subjects, and to eommit a great deal of wickedness. Flatterers adding fuel to the Fire, who are still ready to encourage the Ambition, and other Vices of their Prince at this rate. Sir, you are absolute, therefore if it pleases you, it is lawful: therefore you may tire out your own Subjects, and all your Neighbours with unnecessary Wars, that you may appear a mighty Monarch, and set forth your own Glory; therefore you may affront, and insult over whom you please, and drain your Subjects with all sorts of Exactions, that you may have wherewith to serve your Luxury, or Ambition; according to the Flattery of Anaxarchus to Alexander upon the death of Clitus, that right and wrong, do sit by Jupiter;Plutarch. ad Princi. indoct. that whatsoever the King does, ought to be accounted right, and just so that there are some who go about to establish theabsolute right of Kings by Arguments, that seemto have no other Measure thereof, then impunity, and a License to vex their People. Therefore as by an absolute Liberty of particular Men is meant, their judging of their own affairs and actions, according to their own, and not anothers judgment; yet still supposing their Obligation to the Laws of Nature, And that this Liberty belongs to all Men, who are not as yet subject to anothers will: so where divers Men have United together into a perfect Common-wealth, it is necessary for the same liberty or faculty of appointing, resolving all means necessary for their own safety, should now exist in the Supreme Power, as in a common Subject: which Liberty is accompanied with the Highest Authority, or a right of prescribing those means to the Subjects, and of compelling them to their Duty; therefore in every Commonwealth properly so called, there must be an absolute Power at least habitual, thought not always exercised, for it must be answerable to Superior, and to have a right of Judging of its own affairs by its own Judgment and will. Therefore that absolute Power implies nothing in its self unjust, or intolerable is easie to be perceived from the ends of instituting of Commonwealths. For indeed we never constituted them, that neglecting Natural right, things should be done out of a wicked, and perverse Lust or Humour; but that the security and safety of singulars may be more conveniently looked after by the joint assistances of many. So that they might more safely and with more leasure live after the Laws of Nature, and Virtue.
Yet when this Supreme Authority is considered as it is conferred upon one Man, or one Council consisting of all, or few, as in its proper subject, it is not always free, and absolute, but in some places limited by certain laws; indeed in Democracies the difference between absolute, and limited Power seems not so easie to be observed, for although in every Democracy there must needs continue certain Institutions received by use, or establisht by written Laws, at what time, and by whom the People should be Assembled, and Publick business proposed, and Executed, since without such things, a Common-wealth cannot be understood, yet since that Council consists of all the Citizens, in whom the Soveraign Authority resides; nothing can hinder, but those Constitutions may be altered or abrogated at any time by the same People that made them.
But in Aristocracies and Monarchies, where there are some who command, and others who obey, and so a Right arises to these from the Promises and Commands of the other. There does plainly appear a difference between an absolute and limited power, he is therefore absolute who exercises his Authority according to his own discretion, and not according to the Rule of any certain, or perpetual Constitutions; but as the present condition of affairs require, and who does so provide for the safety of the Common-wealth, as its occasions direct him: from whence the word absolute is so far from implying any thing unjust or hateful in it self, or intolerable for Free-men; that it should rather lay upon such absolute Princes necessity of greater care and circumspection, if they will acquit themselves of their Duty, and discharge their Consciences as they ought; then on those to whom a certain form of dispatching publick Affairs is prescribed. So Dio Chrysost. Orati. 62. describes an absolute Prince thus, “a good Prince covets nothing because he supposes himself to possess all things, he abstains from pleasures, since he may enjoy whatsoever he pleases. He is juster than others, as he who is to be an example of Justice to others. He takes pleasure in business, because he labours of his own accord. He loves the Laws, because he does not fear them; and of all these he rightly perswades himself: for who hath greater need of Prudence, then he who deliberates of such great Affairs? Who of more exact Justice, then he who is above the Laws? Who of a more severe modesty, than he to whom all things are Lawful? Who of greater Fortitude, than he who keeps all things in safety?
Yet because the Judgment of any one man in discerning that which truly conduces to the publick safety may be easily deceived, neither is there in all Men that strength of mind, that they may know how in so great a Liberty to govern their Passions and Lusts (as Herodian Li. 1. Cap. 4. well observes) that it is difficult in the highest Liberty for a Man to restrain himself, & as it were to bridle his own desires. Therefore it seemed most convenient to divers people, not to commit so great a power to one mans sole discretion, and he no more free from Errors than others, but rather more subject to Vices; and therefore would rather prescribe the Prince a certain Form or Method of dispatching of publick Affairs, after it was at first sound out what sort of constitutions, or forms of dispatching publick Affairs did best suit with the Genius of the people, and the Nature of the Common-wealth to be constituted. Neither is there any injury done to the Prince, who was at first raised to that Dignity by the free consent of the people upon those conditions. For if it seemed grievous to take the supreme Authority, because he could not manage it as he pleased, he might have refused it if he would; so the Conscience of the Oath by which they are obliged upon their taking this Authority ought to restrain them and their Successors from going about to make themselves absolute by secret Machinations and Designs: Much less to subvert the Laws of the Kingdom by force.Plin. Paneg.Since an Oath is not more Religiously to be observed by any than he whom it most chiefly concerns not to be perjured. For that is too weak which some maintain, that since Kings are ordained by God, who injoyns them a true discharge of their Duty, which cannot be performed without the exercise of the most absolute power: and therefore God is to be supposed to have conferred such a proportion of power on all Kings, as that they ought not to suffer the least part thereof to be diminished or circumscribed, and that the People can neither rightly require or oblige their King to it; no more than there can honestly be made such a bargain between a Husband and a Wife that he should connive at her stolen pleasures. But as we have already sufficiently proved, that as all Civil Government is from God, yet is so left in Mans disposal (at least to those that God did not give any particular Laws to) what sort of Government they would set up (as Phil. Melancthon in his Epitomy of Moral Philosophy, honestly teaches, That the forms of Kingdoms are different, and in some places there are some degrees of Liberty more than in others: For God approves all Forms of Government that are agreeableto Right, Nature, and Reason; and as I think there is no where any Divine precept extant, that a free People being about to chuse it self a King, should chuse Cajus rather than Titius, no more is there any certain form Divinely establish’d, under which, and no other Authority, is to be conferred on Princes. Neither are these Men any way helped by that place of 1 Sam. 8. where some will have only the bare unjust practice of Kings, that the true right of all Kings is to be there described. But Grotius, Lib 1. c. 4. § 3. Taking a middle way lays down, that there the bare actions of a King is described, yet what hath the effect of a right, to wit an Obligation of non resistance: So that however a King may act against his Duty when he commits such things; yet that his Subject sought no more to resist, than if he had acted thus by the highest Right; and therefore it is added that the People pressed by those vexations should cry to God, because there remained no humane remedies. So that this was called the Right of the King in that sence as the Roman Prætor was sayed, jus reddere, to judg right, even then when he decreed unjustly; however I conceive the true sence of this place may be thus understood, there had been hitherto a Democracy among the Hebrews, but that which often resembled that sort of Kingdome which Aristotle calls Heroical. The Judges incited by a divine instinct did for the most part rescue the oppressed People from their Enemies, or else in Peace Judged Causes: but in other matters were rather endued with a power of perswading, than commanding, but yet their Equipage and State being small, was not born or encreased by any Publick Taxes; yet the People weary of this Government, would have a King after the manner of other Nations: That is, who should appear in great State, and Splendour, and should maintain a constant Guard, or at least should still exercise his Subjects in Arms, that they might still be able to meet their Enemies in the Field, see Sam.xiii. 2. xiv. 48, 52. Now Samuel, that the People might consider of it soberly before hand, lays open to them the Prerogatives of such a King: and the inconveniencies of that Government. You would have a King remarkable by a great deal of Splendour; but such a one must be attended with a numerous Train, and so will take your Sons, and appoint them for himself, and to be his Horsemen, and to run before his Chariots. You would have a King: who should maintain an Army; but it will be necessary that he appoint him Captains over Hundreds, and Captains over Fifties; and this must be of your Sons, who were used before to look after your own business only; the greatness of his affairs, and the state of his Office, will not permit this King to till his own Land; Therefore of your Sons will he set some to Ear his Ground, and Reap his Harvest, and to make his Instruments of War; and since besides he must need a great deal of Attendance, and that it will not become the Dignity of his Wives, or Daughters, to look after the Houshold-affairs. Therefore he will take your Daughters to be Confectioners, to be Cooks, and to be Bakers; he will likewise stand in need of many Servants to dispatch the businesses of War and Peace, and who all must have Salaries: and therefore he will take your Fields, and your Vineyards and your Olive-Yards, and give them to your Servants: and to this purpose he will take the Tenth of your Seed, and of your Vineyards, and give to his Officers, and to his Servants, and he will likewise when he hath need, take your Men-servants, and your Maid-servants, and your young Men, and your Asses, and put them to his work. In short he says no more than this; If you will have a King, he must be maintained like a King, and a certain Revenue appointed for this end; of which burthen if you are afterwards a weary, you shall not be able to Depose him again, since he obtain’d the Kingdom by your choice and consent, and so cannot be taken from him. So that it is plain, that this place does not at all serve to Patronize evil Princes; so neither that there is here any limited Power conferred by God after the manner of a constant and unalterable Precept, and of which no constitutions can diminish any part; since here only the necessary Charges and Burthens as well of an absolute, as of a limited Royalty are described; therefore it is wholly in the will of a free People, whether they will have an absolute Power, or will deliver it with certain Laws, so that those Laws contain nothing that is wicked, or which may destroy the ends of Government; for although Men at the beginning did freely enter into a civil Society, yet since they were before obliged to the observation of the Law of Nature, they ought to Constitute such Rules of Power, and civil Obedience which might be agreeable to that Law, and to the lawful ends of all Common-wealths.
But as it may rightly be understood, by what sort of Promise, a Kingly Government may cease to be absolute (for every promise hath not that force) it is to be understood that a King upon his taking the Kingom, may oblige himself either by a General, or special Promise, which for the most part is confirmed by the Religion of an Oath. A General Promise may be made either tacitely or expresly. A tacite Promise of Governing well is understood in the very acceptance of the Kingdom, although there were nothing expresly Promised; yet most commonly this promise ought to be made expresly not without an Oath, & the solemnity of certain rights; neither is it unusual that in this promise the Office of a King should be described by a Periphrasis, or enumeration of the principal Parts; as suppose it be, that he will take care of the Publick safety; that he will defend the good, and punish the bad, that he will Administer indifferent Justice, that he will oppress no Body, or the like. Such Promisses do not all detract from absoluteness of his Power. since the King is indeed obliged by those general Promises, to govern well; but what Method, or what means he shall make use of for this end is left to his will, and discretion; but a special promise, and in which both the Method, and means to be used in the Administring the Government are particularly expressed, seem to have a twofold Power; for one only obliges the Conscience of the King; but the other makes the Obedience of the Subjects depend upon its performance, as upon an express condition. A Promise of the first sort is thus, If the King should swear, for example, that he will not bestow any Offices of trust, on such a sort of Men, that he will not grant any Priviledges to any which shall redound to the prejudice of others, that he will make no new Laws, or impose new Taxes or Customs, or will not use Foreign Souldiers or the like. Yet if there be no certain Council, or Assembly Coustituted, which the King should be obliged to consult, whether the occasions of the Common-wealth require he should depart from those Engagements (for there is still in all of them, that tacite exception still understood (unless the Safety of the Common-wealth the Supreme Law in all such Engagements require otherwise) and which Council by its own right, and not precariously can take cognizance of those affairs, and without whose consent the Subjects cannot be obliged to observe the Kings commands in such matters; here the Administration of the supreme Authority being restrained to certain Laws, if the King shall act otherwise (unless in cases of great necessity,) he is without doubt guilty of the breach of his Oath; yet there does not therefore belong any power to the Subject to deny Obedience to the Kings commands, or of making those actions void. For if the King do say, That the safety of the People, or some remarkable advantage to the Commonwealth requires him to break his Promise, as that presumption always ought to go along with the Kings actions, the Subjects in this case have not any thing to reply: because they have no faculty of taking Cognizance of those actions, whether the necessity of the Common-wealth required them or not; from which this is apparent, that they do not take a sufficient caution, if they will allow their King but a limited Power, and yet hath not Constituted some great Council, without whose consent those actions excepted cannot be exercised, or unless there lie upon the King a necessity of calling the Estates, whenever he deliberates upon the exercise of those Legislative Powers, for that is better, than if it should be necessary for the King to consult some Council, consisting only of some few of his Subjects: since it may easily happen that the private advantages of those few may differ from the publick good, and likewise, they for their own private Interest, may not agree in those things which are truly beneficial for their Prince.
But the Authority of a King is more closly restrained, if it be expresly agreed between the King and People upon the conferring the supreme power upon Him, or his Ancestors that he should Administer it according to certain Fundamental Laws; and concerning those matters which he hath not absolute Power to dispose of, that he leave them to a great Council of the People, or Nobility, neither may decree any thing in those matters without their consent; and if they should be done otherwise, that the Subjects would not be obliged to observe his commands in such things; neither, yet is the Supreme Power rendred defective by such Fundamental Constitutions. For all the acts of Supreme Power may be exercised in such a Kingdom, as well as in an absolute one, unless that in the one, the King uses his own Judgment alone, as decisive, but in the other there is as it were a concomitant Cognizance remaining in the great Council, upon which power of the Supreme Authority it does not radically; but as it were conditionally depend, & sine qua non; neither are there in such a Commonwealth two distinct wills, for all things which the Common-wealth wills, it wills them by the Kings will alone; although it might happen form that limitation, that certain conditions not being observed, the King cannot legally will some things, and so wills them in vain; but neither does the King cease to have the supreme Power in such a Kingdom; or that this Council is therefore above the King. For these are no true consequences, that because this Person cannot do all things according to his own humour, therefore he hath not supreme Power. I am not obliged to obey this Man in all things, therefore I am his Superior, or Equal: and these are likewise very different; I am bound to perform what this Man pleases; because I have obliged my self to it by compact; and I am obliged to follow this Mans will, because he can enjoyn me thus by his supreme Authority. But supreme, and absolute are not one, and the same thing, for that denotes the absense of a Superiour, or an Equal in the same order or degree; but this a faculty of exerciseing any right by a Mans own Judgment and Will; but what if there be added a Commissary clause; that if he shall do otherwise he shall forfeit his Kingdom; as the Arogonians of Old after the King had sworn to their Priviledges,Vid Hotomani Frarcogallia. C.11. did promise him Obedience in this manner: We, who are of as great Power as thou, do Create thee our King and Lord on this condition that thou observe our Laws and Priviledges, if otherwise, not.
Here it is certain, that an absolute King cannot be He to whom the Kingdom is thus committed under a Commissary Clause, or Condition: but that this King may have for all this a regal Power though limited, I see no reason to the contrary; for although we grant a Temporary Authority cannot be acknowledged for Supreme, because it depends upon a potestative condition, and which can never be in the Princes power. Yet a King of this sort abovemention’d is not therefore subject to the power of the People, with whom the cognizance is whether he keep his Oath, or not, for besides that such a Commissary Clause is wont to comprehend only such plain things, which are evident to any Mans sences; and so are not liable to dispute. So that this power of taking cognizance does not at all suppose any Jurisdiction by which the Actions of the King as a Subject may be judged, but is nothing else, than a bare Declaration, whereby any Man takes notice that his manifest right is violated by another. See Grotius, Lib. 1. Cap. 3. § 16. And Bæcler, upon him: who are both of the same Opinion. Grotius indeed in the same place speaks more obscurely, when he says, That the Obligation arising from the promises of Kings, does either fall upon the exercise of the act, or also directly upon the very power of it, if he act contrary to promises of the former sort; the act may be called unjust, and yet be valid; if against those of the latter, it is also void, as if he should have said, Sometimes a King promises not to use part of his Supreme Authority, but after acertain manner; and sometimes he plainly renounces some part thereof, concerning which there are two things to be observed; first that also some acts may be void, which are performed contrary to an Obligation of the former sorts; as for example, if a King swear not to impose any Taxes without the consent of the Estates. I suppose that such Taxes which the King shall Levy by his own will alone; to bevoid. Secondly, That in the latter form the parts of the supreme power, are divided.
But that the Nature of limited Kingdoms may more thoroughly be understood; it is to be observed, that the affairs which occur in Governning a Common-wealth are of two kinds; for of some of them it may be agreed besorehand, because whenever they happen they are still but of the same Nature: but of others, a certain Judgment cannot be made but at the time present, whether they are benesicial to the Publick or not; for that those circumstances which accompany them, cannot be forseen. Yet concerning both, that People may provide, that he to whom they have commited this limited Kingdom should not depart from the Common good in the former, whilst it prescribes perpetual Laws or Conditions which the King should be obliged to observe in the latter, whilst he is obliged to consult the assembly of his People or Nobility. Thus the People being satisfied of the truth of their Religion, and what sort of Ecclesiastical Government, or Ceremonies do best suit their Genius; so it is in Sweden, may condition with the King upon his Inauguration, that he shall not change any thing in Religious matters by his sole Authority. So every Body being sensible, how often Justice would be injured, if Sentence should always be given by the sole Judgment of the Prince, & ex aquo & bono, without any written or known Laws, and that Passion,VI. Tacit An. L. 13. 4. 2. Interest, or unskilfulness would have too great a sway for avoiding this inconvenience, the people may oblige their King, that either he shall compose a Body of just Laws, or observe those that are already extant and also that Judgment be given according to those Laws, in certain Courts or Colledges of Justice, and that none but the most weighty Causes should come before the King by way of Appeal.This is likewise the Law of Sweden. So likewise, since it is well known how easily Riches obtained by the Labour of others, may be squandered away by Luxury or Ambition: therefore the Subjects Goods should not lie at their Princes mercy to sustain their Lusts. Some Nations have wisely assigned a certain Revenue to their Prince, such as they supposed necessary for the constant Charges of the Commonwealth; but if greater expences were necessary, they would have those referred to the Assembly of Estates. And since also some Kings are more desirous than they ought to be of Military Glory, and running themselves into unnecessary Wars, may put themselves and their Kingdoms in hazard, therefore some of them have been so cautious, that in the conferring the regal Dignity, they have imposed this necessity upon their Kings, that if they would make offensive Wars upon their Neighbours, they should first advise with their great Council; and so likewise it might be ordained concerning other matters, which the People judged necessary for the Common-wealth, left that if an absolute power of ordering those things, were left to the Prince, the common good of the People would perhaps be less considered.
And since the people would not leave to this limited King an absolute power in those Acts which are thus excepted, but that an Assembly, either of the whole people, or of those that represent them divided into their several Orders; it is further to be observed, that the power of this Council, or Assembly, is not alike every where. For in some places the King himself though every where absolute, may have appointed a Council, or Senate, without whose approbation he will not have his decrees to be valid. Which Senate without doubt will only have the Authority of Councellors, and though they may question the Kings Grants or Decrees, and reject those which they judg inconvenient, for the Common-wealth, yet they do not this by any inherent Right, but by a power granted them from the King himself. Who would this way prevent his decreeing any thing through hast, imprudence, or the perswasion of Flatterers that might prove hurtful to his State: to which may be referred what Plutarch mentions in his Apothegms. ‘That the Ægyptian Kings observe a Law, whereby they oblige their Judges by Oath,Note the Antiquity of of this excellent Law. that if the King require an unjust Sentence from them, they should refuse him. And in the same place it is noted, that Antigonus 3. writ to his Cities, that if by his Letter he should command anything contrary to his Laws, they should not obey it, but should think he failed thorough ignorance or misinformation; and oftentimes importunate Requests are eluded this way, whilst the Prince seems for quietness sake content to grant what he knows will be made void by this Senate or Court of Parliament,As it hath been often in France. yet when the King is resolved that his Will shall hold good, and looks upon the contrary Reasons of this Parliament as not weighty enough to convince him, it cannot then any longer contradict the Kings Will; for it is not presumed that the King by constituting such a Court would irrevocably abdicate his Right of absolute power. So that this Senate or Parliament hath indeed but a Derivative power from the King to be limited as he himself shall please, although perhaps he will not exert this power but upon weighty considerations, nor does this Court make the power of the King less than absolute; since it only gives him occasion to review his own Acts, and as it were Appeals from himself, when surprised with Passions Prejudices, or misinformation to himself in a more indifferent and considerate Temper. The like may be said of the Assembly of Estates, if they meet only for this purpose that they should be the Kings greatest Council, by which the Requests and complaints of his People, which often times are concealed in his private Council, may come to the Kings ears; who is then left free to Enact what he thinks expedient, Vid. Gro. Li. 1. c. 3. §. 10. But a Kingdom is truely limited, when the Subjects at first conferred it on the King, on this condition, that he should assemble the Estates concerning some Acts, without whose consent this Decree should not be valid, yet it ought to be in the Kings power to call, and dissolve this Assembly, and to propose the business to be dispatcht therein unless we should go about to set up an irregular Common-wealth, and leave the King no more than an empty Title, but if these States being so convecated, do of their own accord Propose those things which they conceive conducing to the good and safety of the Kingdom, yet the Decrees or Acts constituted concerning them, take their force from the Kings passing them. Yet such an assembly of Estates do differ from Counsellors properly taken to this, that although both of them can only move the King by reason only, yet the King may very well reject the Reasons of these latter, but not of the former, neither ought the King to think himself contemned, if these Estates do not consent to some things of his proposing. For as he promised at first to have always before his Eyes the good of the Common-wealth, of which a great many choice men are supposed to Judg more certainly than one. A King may most commonly blame his own imprudence, Passions, or ill Fortune, if the States happen to disser from him, from whence it likewise appears, that their fear is vain, who think that by this means, it is at the disposal of the Estates, whether the Common-wealth shall be safe or not. For it can scarcely be supposed, that the King should be so negligent, as to omit laying open to his Estates the necessities of the Kingdom, or that the Estates being fully satisfied of them, will ever go about to betray their own safety. But this is certain, since those who have conferred the limited power cannot be presumed either to intend to destroy or dissolve the Common-wealth; or by their confederacy to order things so, that the end of all Common-wealths, cannot be obtained in it, therefore there ought to be that favourable interpretation made of those Conventions that they really desire the common safety, and would by no means do any thing contrary thereunto; so likewise in making this compact, that whatsoever they have so agreed to, they are still to be supposed to have that intention, that nothing should be done by reason of those conditions or parts which should prejudice the common safety, and publick utility, or whereby the Convulsion or Dissolution of the Common-wealth might follow. But if such a chance should happen, it would be most convenient, that if the affair will allow of delay, it should be proposed in the Assembly of Estates, but where this cannot be done, it may be the Kings Duty dexterously to correct those complaints that may break out to the destruction of the Common-wealth, which also is of the the same force in respect of publick Laws, which the safety of the people and the supream Law commands sometimes to be silent.Plnt. in the Life of Agesilaus: As Agesilaus commanded the Laws of Licurgus to sleep for one day, that those might return without ignominy that had fled at the Battel of Levetra.
However, Mr. Hobs will allow no distinction between limited power and absolute, but will have all supreme power to be absolute, when it is to be observed, that in all those assertions which are too rudely laid down by him, there is a restriction to be added from the and of all Common-wealths, as in what he lays down in his de Cive cap. 5, §. 6. that he to whom in a Common-wealth there belongs the right of punishing, can by right compel all to all things he pleases, or as he expresses this limitation in the same place, which are necessary for the common peace and safety, and Cap. 6. §. 13. when by the right of the supreme Governour he says there is connected so great an obedience of all the Subjects as is requisite for the Government of the Common-wealth, so when in the place aforegoing he saith, who ever hath so subjected his own will to that of the Prince, that he may do whatever he pleases, without punishment, as also make Laws, Judg differences, punish whom he pleases, & use the strength & power of all men according to his own will, perform all these things by the highest right, he hath then granted him the greatest power which can be granted. But it is now to be considered, by what intention, or on what grounds men were moved to institute Common-wealths, from whence it is clear, that no body is understood to have conferred more power by his Will upon the Monarch, then a reasonable man can judg necessary to that end: and that although the ordering what may conduce to this end in this or that occasion, does not remain in those that have transferred their power, but in him on whom that power is transferred, therefore the supream Ruler can compel the Subjects to all those things which are really condusing to the good of the Common-wealth, but he ought not to go about to compel them to those things that are contrary to the safety of the Common-wealth, or against the Laws of Nature. And if he endeavours any such thing, without doubt he transgresses the bounds of his power. Let us also consider the Arguments by which the same Author in his De Cive. Cap. 6, §. 17. endeavours to prove that all limitation of Soveraign power is absolutely vain, he says that assembly which prescribed the Laws to the future King, must have had absolute power, either habitually, or vertually. If the Assembly remains constantly, or adjourns their Meeting from Time to Time, to a certain day and place, their power will be perpetual, and so the King will not have the Supream power, but will be only a bare Magistrate. Which we grant to be true, if that Assembly can meet by its own Right and Decree of any Affairs of the Common-wealth, and that the King be liable to give them an Account of his Actions. But if it absolutely dissolve it self; unless the Commonwealth be likewise dissolved; there must in like manner a power be left somewhere, of punishing those that transgress the Laws, which without absolute power cannot be performed. Which is false as also the Argument by which he would prove it; for he who hath granted him by Right, so much power, than he can compel any of the Subjects by punishments, hath so great power that greater cannot be conferred by them. But son all this, whoever will but consider the end of all Common-wealths, and that those Subjects by the submission of their Wills and powers, did not inmediately become senceless Machines: so that since they could grant the use of their united Forces to another upon condition, and are able to judg whether this condition be performed or not, so they can likewise withdraw their Forces again upon the breach of the condition, as likewise this is apparently false, that there is no better provision against the abuse of Authority, when it is granted limited, then when it is left absolute; for it is not who, that he who hath power enough to defend all Men: (which all that are not Fools will easily grant their Prince) as also power enough to destroy them. The Commands of a General which are sufficient to make the Souldiers stout, to venture their Lives, against an Enemy, yet would be found of no force, if he should command them to draw their Swords against each other. So that prudent and worthy Princes though absolute, will comply with the Genins of their Subjects, and oft-times will be spasing to urge them too far though for their own advantage, when they cannot be compelled to their Duty without some hazard to the Common-wealth. But those Subjects are not less discreet, who when they are satisfied, what is not expedient for their Common-wealth, have provided by Fundamental Laws, that they should not be compelled to it by their Princes power. So far speaks the judicious Mr. Pufendorf upon this Subject, which though somewhat prolix, I have thought fit to translate verbation, because I would not be thought by going about to contract it, to put my own sence upon his words, and besides I know no man that hath writ more clearly of this Subject, in avoiding on one side an absolute despotick Monarchy, without falling into that Solacism in Politicks the division of the supreme power which he supposes truly inconsistant with Monarchy. So that if the Reader is not satisfied with what I have here writ upon this Subject I am sorry his understanding and mine are not framed alike, nor shall be angry with him, if he like an absolute Monarchy better then that we live under. Provided, he will never Act any thing to produce publick disturbances: or to introduce it, either by force or fraud in this Kingdom. Yet shall wish him no greater Prerogative, then that of enjoying his own opinion, without imposing it upon others, who are not yet weary of their Estates and Liberties, which since the People of this Nation are not yet weary of. The World is wide enough, and there are Countries, where this which they admire as the primitive Government of the World, and that which they perhaps Reverence as the Primitive Religion is practised in its full splendor: and indeed are most suitable to each other. All the hurt I wish those Gentlemen, that they were all setled in any of them, even which they like best. Whilst all plain hearted English-men, notwithstanding such subtile discourses, as those of our Author, are resolved to return the same Answer to them as the Temporal Lords did to the Bishops long since upon another occasion, Nolumus Leges Angliæ mutari, of which I hope there is as little fear, as there is or ever will be just occasion for it. And so I shall quit my hands of this ungrateful task, without troubling my self with his Discourse of Witches. Since his other writings sufficiently assure us that whatever he was in other Learning he was no Witch in Politicks, though he had Read Aristotle, might perhaps be better read in the Fathers and Schoolmen, or Civil-Law, than in the Laws of Nature, orthose of his own Countrey.
PReface Page 2. l. 14. dele not l. 18. hy r. by p. 5. r. despise observe p. 8. l. 32. compore r. compare the p. 15. l. 30. of Fathers r. of a Father l. 31. more true r. more certain l. 36. to r. thereto l. 37. dele without the help and assistance of others p. 24. l. 24. should make r. should have l. 26. in r. or in p. 29. l. 16. dele fourth p. 32. l. 33. d. not p. 37. l. 33. for excellent Pufendorf r. Mr. Pufendorf a late judicious Writer. p. 40. l. 17 d. often p. 42. l. 20. d. of p. 43. l. 17. ought quit r. ought to puit p. 44. l. 10. for a priviledg r. a liberty l. 21. and if r. for if l. cad. have such r. have only such l. 31. fatherly r. or fatherly p. 37, 57. l. 28. puzzle r. distract p. 67. l. 14. require r. acquire l. 32. as I r. and p. 70. l. 13. d. perhaps p. 72. l. 25. d. goods p. 74. l. 5. or at their own dispose include within a Parenthesis p. 77. l. 8. upon r. upon them p. 83. l. 8. on r. than l. 31. r. without any stop after legat l. 32. owe his r. owe its p. 86. l. 32. the r. those l. 35. change r. charge p. 87. l. 29. it is r. they are p. 88. l. 20. his r. this p. 89. l. 6. consting r. consisting p. 90. l. 26. r. representative and d. body p. 92. l. 34. many r. so many p. 93. l. 7. but of r. but part of l. 13. d. from p. 95. l. 16. for an r. but an l. 24. d. hatred p. 99. l. 7. both of d. both p. 102. l. 3. at mans r. a mans p. 107. l. 20. Laws d. [Editor: illegible character]s cad. l. 1. d. Custome p. 112. l. 32. r. misuse him p. 113. l. 25. most r. many p. 117. l. 30. all r. at all p. 120. l. 20. a r. and l. 22. d. nor dishes p. 121. l. 12. and r. which p. 122. l. 18. d. the p. 123. l. 23. they deserve r. he deserves p. 127. l. 13. yet is r. yet it is l. 22. Body r. Badg p. 132. contract it r. contract his words p. 134. l. ult. first 97. r. first Classis of 98. [Chap. IV.] p. 97. l. 26. r. definition p. 98. l. ult. 1000 parts r. 100th part p. 100. l. 10. was [Editor: illegible character] as l. 11. being still r. is still p. 101. l. 15, r. Cain p. 105. l. 21. d. should l. ead. know r. knew 107. l. 33. d. into l. 35. which having r. and having p. 100 l. 32. electing of r. laying p. 110. l. 7. a true r. tacite l. 15. things in r. things under l. 17. the thest r. the Thief l. 29. concern r. convey p. 111. l. 7. d. were l. 13. d. when l. 23. necessities r. necessaries p. 115. l. 23. does r. did p. 118. l. penult. Casak r. Casaq; p. 123. l. 20. it r. Usufructuary p. 124. l. 13. Crown must be of England r. Crown of England must be p. 126. l. peault. d. our l. ult. d. if p. 127. l. [Editor: illegible character] d. it treats l. 2. Irenes r. some mens p. 129. l. 3. d. & l. 4. d & l. 33. Medipersians r. Medop. p. 133. l. p. that it r. that is p. 131. l. 8. discoursed r. discoursing l. 9. d. not p. 133. l. 33. from them r. from him p. 135 l. 18. and makes d. and r. make p. 136. l. 27. d. give and p. 138. l. penult. a breach r. branch p. 140. l. 20. d. by p. 141. l. 23. this accepted r. this K. Henry accepted p. 143. l. 7. r. Senate l. 8. this r. his p. 144. l. 19. Judges r. Indies p. 145. l. 13. worship r. wardship l. 15. mettre due sense r. mettre hers du sense p. 147. l. 32. before r. that before l. 33. the nobiles r. Earones or nobiles p. 148. l. 34. born r. Booren p. 149. l. 14. after Grammar r. niceties l. 25. d. he l. 15. be called r. may be as well called l. ead. as they are r. as any p. 150. l. 28. Law to r. Law ought p. 160. l. 10. d. which said Statute, viz. l. 11. repeating r. reciting l. 13. d. is, and r. (viz. the King within a Parenthesis l. 14. bound r. is bound l. 18. it an absolute Monarchy r. all Monarchy absolute p. 209. l. 5. d. the Parenthesis (says Sir R. A.) l. 11. this Author r. our Author, l. 14. d. it is and r. as l. 15. be Judg r. may Judg l. 17. suppose a r. suppose then a p. 210. l. 6. not r. nor 211. l. 22. d. not p. 213. l. 25. Anderson r. Andersons Reports p. 214. l. 15. factam r. factum p. 215. l. 7. d. whether l. d. be full l. [Editor: illegible character] of military r. such military l. 20. d. they put it thus l. 27. tonts r. touts l. 28. le autrun r. les biens d’autruy l. ead. en r. oud’p p. 218. l. 14. Execution r. Executioner p. 219. l. 21. dares say r. dares not say, p. 221. his r. his so [Editor: illegible character] p. 222. r. despatick 223. r. Gemoto l. 25. d. their last King and r. who p. 224. l. 4. r. Athelwolsi l. 6. r. sumus l. 12. d. his Nephew Wimund l. 10. tells r. tells us l. penult. r. Ethetred p. 225. l. 15. and to r. and by l. 18. says were r. says they were l. 32. or unjustly d. unjustly p. 226. l. 13, Cracis r. Crucisp. 228 l. 5. and were r. or were l. 31. Authors r. our Author p. 232. l. 5. d. which l. penult. Mr. Hobs r. Mr. H. p. 223 l. 4. means had r. have proved l. 12. Arguments d. s. p. 234. Anno 125. r. Anno 1252. l. penult. son does r. son may p. 236. l. 21, 22. d. a and r. mixt Monorchies then mixt Aristocracies or Democracies l. 25. paat r. power p. 237. l. 8. after original nature I shall here tronslate l. 12. d. as near as I can translate it l. 33. d. that l. 34. d. pretence and r. somewhat p. 240. l. 18. d. that r. for l. 27. to superior r. to no superior l. ult. for singulars r. particular persons p. 242 l. 12. of all r. in all l. ead. perswades r. commands l. 13. or r. of 243. l. 29. yet is r. yet it is l. peult. if r. of p. 244. l. 6. and no other include with a parenth l. 8. only the r. only from the l. 16. subjects sought r. subjects ought p. 245. l. 31. your r. his 246. l. 7. and so r. and so it 247. l. 9. not all r. not at all l. ead. from the absol, r. from the p. 248. as that r. as if that and include from as to Actions, within a Patenthesis p. 249. l. 20. form r. from p. 250. l. 4. Commissary r. Commissory l. 6. r. Arragonians and d. of old l. 23. cognizance is r. cognizance, remains 251. l. 2. or also r. or els l. 11. forts r. for 253. l. 10. after orders add should be consulted [Editor: illegible character] 256. l. 21. Lavetra r. Leuetra l. 27. and r. end 257. l. 7. perform r. performing p. 259. l. 30. d. yet weary of. Lesser errors in Orthography the Readers discretion may correct.
THe quotation in the Margin, p. 50. vid. Mezeray Abrege Chronologique belongs to p. 59. l. 22. To p. 117. l. 5. That even in the Christian Religion, Men are Masters of their own lives: when Gods Glory or the avoiding of imminent sin requires it, see the examples of the primitive Martyrs Eusebius Eecl. Hist. Lib. 8. Cap. 9. 12. To Chap. 4. p. 123. l. 24. And that the French look upon their Kings to have but an usufructuary right in the Crown of France, appears from the Declaration of the Assembly des Notables called K. Francis l. 1527. to give their advice concerning the Redemption of his Children, and his return to Spain, the delivery of Burgundy, whereupon the three Estates answered a part. That his person belonged to the Realm, and not to himself, that Burgundy was a Member of the Crown of which he was but the usufructuary and so could neither dispose of the one nor the other. Mezeray Abrege Chron. Francis I. Anno 1527.
P. 151. l. 29. after Law, add the same Author (the Book is quoted there, but the Quotation omited) Que quidem fuerint approbata concensu utentius & Sacramento Regam confirmata non possunt mut ari neo destruitine communi consen u corum omnium quorum consilio & consensu fuerint promulgata.