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James Tyrrell on Authority and Liberty
This List Is By:
Eric Mack
Professor of Philosophy, Tulane University, New Orleans
This list provides a sampling of contentions and arguments in James Tyrrell’s 1681 critique of the most famous (or notorious) seventeenth century British defense of unlimited and unmixed monarchical authority, Robert Filmer’s Patriarcha. Tyrrell’s Patriarcha non Monarcha is an important and unduly neglected document in the history of liberal political theory.
Further Reading:
1: The whole of Patriarcha non Monarcha
The republication in 1679 of several of Robert Filmer’s essays in defense of unlimited and unmixed monarchical authority and the posthumous first publication of Filmer’s Patriarcha in 1680 instigated the composition of three critical responses to Filmer’s case for patriarchal authoritarianism. One of these was John Locke’s First Treatise of Government. Only a third of this work survives; it was published by Locke as part of his Two Treatises of Government in 1689. Another response to Filmer was Algernon Sidney’s Discourses Concerning Government which was not published until 1698. (Sidney had been executed in 1683 for his participation in the Rye House Plot to assassinate Charles II and his brother James, the Duke of York.) The third response was Tyrrell’s Patriarcha non Monarcha published in 1681 and hence, the only one of these responses which actually was published at the height of the Filmer controversy. Tyrrell and Locke were in close philosophical contact during the period in which each wrote his response to Filmer (and Locke was also writing at least the preliminary version of his Second Treatise of Government). Indeed, during this period Tyrrell and Locke co-authored a still unpublished defense of religious toleration.
So, beyond its own considerable intrinsic intellectual interest, Tyrrell’s Patriarcha non Monarcha is of interest for the ways in which it either overlaps with or contrasts with Locke’s radical whig doctrine in his Two Treatises. Tyrrell’s work, organized as it is as a point-by-point critique of Filmer — especially Filmer’s Patriarcha — does not have a orderly intellectual structure of its own. In what follows I identify some of the key contentions and arguments from the preface of Tyrrell’s work and each of the four chapters and supply characteristic passages in which these contentions or arguments appear. Aside from its sharp insights and historically interesting intellectual moves, readers of Patriarcha non Monarcha should be prepared for some tedious and repetitive pounding of Filmer’s scriptural and historical claims.
James Tyrrell, *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).
Accessed from oll.libertyfund.org/title/2168 on 2008-12-13
The text is in the public domain.
CAROLUS SECUNDUS Dei Gratia, Angl, Scotiæ, Franciæ Et Hiberniæ, Rex, Fide Defensor etc.
F. H. Van Heur [Editor: illegible word]
THE PREFACE To the Reader.
IT may not be unknown to those that have been conversant in Books and Pamphlets published during the late unhappy times, that all the Treatises (except the Patriarcha) which are the subject of the ensuing Observations, were published at first in single Tracts without Name, though they have since come out under that of Sir Robert Filmer Baronet, deceased: All which, though I hope they might be written with an honest designe, and in defence of Kingly Government, and of his then Majesties lawful and just Rights, then trampled upon by a domineering Faction, and may contain some things useful enough to confute divers levelling Notions then too much in fashion; yet whilst this Gentleman (as violent men commonly do) ran into the other extream, and must needs assert an Absolute Monarchy Jure Divino, so that no other Government can be lawfully exercised, nor the least Limitations set to it, without Sacriledge, and diminution of that Soveraignty which is derived from no less an Original than God himself; and by denying that Princes can ever be obliged by any Fundamental, or after-Contracts, or Concessions, or by any Coronation-Oaths, to abstain from the Lives, Liberties, or Properties of their Subjects, farther than as they themselves shall think it convenient; so that there can be no such thing in nature as a Tyrant: I leave it to the judgment of the impartial Reader, whether what this Author might designeas Physick, hath not served rather to inflame the Distemper; and whether he hath not by such rash and ill-grounded Assertions given too much advantage to the Enemies of Kingship to retort, That since all Government was ordained by God for the good of Mankind, that could never be of divine institution which would render all things to be so much the Princes Right, that the Subjects can claim a Property in nothing which he shall please to take from them; and that however they use them, yet they still exercise but their own Royal Rights and Prerogatives. So that by thus taking away all distinctions between Kings and Tyrants, and between Slaves and Subjects, I fear that (like Rehoboam’s harsh Answer to his Peoples Complaints) he hath not given many of his Readers a prejudice against that Government, which temper’d by known Laws, I take to be the best in the World.
For as Superstition can never serve to advance the true Worship of God, but by creating false Notions of the divine nature in mens minds, or render it not as it ought to be, the Object of their Love and Reverence, but servile Fear; so I suppose this asserting of such an unlimited Power in all Monarchs, and such an entire Subjection as this Author exacts from Subjects, can produce nothing but a Slavish Dread, without that Reverence, Esteem, and Affection for their Princes Person and Government which is so necessary for the quiet of Princes, and which they will have, whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression, according to just and known Laws: And that contrary Notions of this Supreme Power, are so far from setling mens minds in a sober and rational Obedience to Government, that they rather make them desperate and careless who is their Master, since let what change will come, they are sure to be no better than Slaves, as may be seen in all the Absolute Monarchies from France to China.
You may also consider whether most of the Argumentsthis Author makes use of for absolute Obedience to Usurpers, as representing the lawful Prince and Father of the People, might not serve for the establishing of Oliver and the Rump-Parliament, as well as a lawful Soveraign; since I am sure Milton makes use of the same places of Scripture for this purpose, which this Author and Salmasius do for another.
So that most moderate men, nay, the Author’s own Friends, may wish that either these Treatises had never been published, or at least have been left in private Studies and Book-sellers shops, amongst those heaps of Pamphlets condemned to dust and oblivion; since no man can imagine to what end this Patriarcha and other Tracts should come out at such a Time as they did, unless the Publishers thought that these Pieces, which printed apart could onely serve to ensnare the Understandings of some unthinking Country-Gentleman or Windblown-Theologue, could do no less, being twisted into one Volume, than bind the Consciences, and enslave the Reasons of all his unwary Readers.
Since therefore short Treatises of this kind, written in a gentile stile, and a formal appearance of Law and Reason, do more mischief among young men, and those that have not leisure to look much into the grounds of this Controversie, than tedious Volumes: And that this Notion of the Divine and Patriarchal Right of absolute Monarchy hath obtain’d so much among some modern Church-men, who cry it up as their Diana, and consequently hath so much infected our Universities, that are the Seminaries where the Youth of this Nation do commonly receive Principles both in Religion and Politicks, which if they have not a mind large enough to overcome the prejudices of Education, will mis-lead them as long as they live, and so make them desire at least to alter that Government, and give up those Priviledges which their Ancestors were so careful to preserve and deliver down to Posterity: I thought my self obliged (having perhaps more leisure, though less parts and learningthan a great many others) to do God, my King, and Country this service, as to lay open the weakness of the Reasons, and the dangerous consequences of this Author’s Principles. And though men of greater abilities may either dispise such weak Arguments as this Author makes use of, or else think it below them to spend so much time from their more useful and benesicial Employments, and that indeed his Reasons are not so knotty or intricate, that they require any more than honest sence and plain English to lay them open to the unprejudiced Reader; yet since the Poyson hath spread so far among the men of Letters, and in the Country among divers of the Gentry and Clergie, I thought it not amiss to do my weak endeavour to undeceive them: And in so doing, I desire to be thought no other than what I really am, a zealous assertor and defender of the Government establisht by Law; being so far from a Commonwealths-man, that for my own part I reverence Monarchy above all other forms of Government, and should be as willing to have it unmixt (it being that by which God Almighty governs the Universe) could humane nature be long trusted with it, and could we be as certain that his Vicegerents on Earth would as easily imitate those divine Attributes of wisdom and goodness, as they are prone to lay claim to his absolute Power. For as where those Perfections direct the Scepter, a Prince is to be loved and reverenced as the best Representative of the divine nature; so the exercise of an absolute unlimited Power, without these, can create no other Idea in mens minds, than what the barbarous Indians have of those perrible Gods they worship, to whom though they often make Oblations of what is dearest to them, yet it is upon no higher motive of Devotion, than that they thereby hope to cajole them not to do them any mischief, and would soon cast them off if they knew how to get rid of them. Therefore the fault is not in the Government as absolute, but in humane Nature, which is not often found sufficient, at least for above one or two Successions, to support and manage sounlimited a Power in one single person as it ought to be. And for this I desire the Reader to look over the Catalogue of all the Persian, Roman, and Turkish Monarchs that have ever succeeded in so many hundreds of years, and see how many good ones they will finde among them, and who truly considered the good and prosperity of that Empire which God had trusted them withal; the effects of which absolute Power being very well known to the Satyrist who lived under it, when he thus shrewdly observes:
— Nihil est quod credere de se NAJuven.
Non possit, cum laudatur Diis æqua potestas. Sat. 4. And how much Christian Religion hath altered the case, I desire all observing Readers to consult the late Histories of France and Muscovy, and other despotick Governments in Europe.
But since the Government of this Nation, as now establisht, I conceive the best in its kind, as most equal and beneficial both to the Prince and People; so that it is onely their faults who would go off from it, if they are not both Prince and People the happiest in the World: I hope I may, without sin, wish those accursed from God, who would remove our ancient Land-marks, and pull up all Limits between Prerogative and Law; and who (as it may justly be feared) would mis-lead Princes, enslave Mankind, and (if occasion were) sacrifice both to their own private Interests and Ambition. The like I may say of those who would destroy this ancient Government, and set up a Democracy amongst us; since I know not which is worst, to be known to death by Rats, or devoured by a Lion.
Nor is it that I am conscious to my self of having writ any thing in these ensuing sheets contrary to Law, destructive to Government, or that Obedience which all good Subjects own their Prince and his Laws, which hath made me forbear prefixing my Name to this Treatise; since perhaps some of those Motives which might perswade this Author to forbear it in the Treatises he published, might likewisehave the same effect upon me; especially since I doubt not but what I have here written will provoke those Craftsmen who esteem this Notion of our Authors (by which they expect to get both Riches and Honour) as the Diana that fell down from Jupiter: And therefore it is no wonder if they are angry with any man that should go about to pull off the specious Vails with which they have covered it, and shew it (as it really is) a wooden Idol of their own making; and if they knew the man, would, according to the usual course of those who abound more in Malice than Reason, quit the matter, and fall upon the person of their Antagonist, and endeavour to stir up both the great Vulgar and the small Vulgar (as Mr. Cowley ingeniously terms men of Title without Sense.)
Besides all which, joyn’d with the small opinion I have of my own performances, or that I think these Papers capable to transmit my Name to Posterity; yet if I were sure I could do it, however writing against an ingenious Gentleman long since deceased (and whose good Name upon all accounts I designe not to diminish) yet I should not think it generous to raise my self a Fame to the prejudice of another mans: And therefore my Request to you is, That you would believe I write these Observations for no other end than for the Truth, and in defence of the Government as it is establisht, and the just Rights and Liberties of all true English-men. All which, I pray God preserve as long as the Sun and Moon endure.
I am your Friend,
Philalethes.
Observations UPON A TREATISE CALLED PATRIARCHA, And several other Miscellanies, Lately Published Under the Name of Sir Robert Filmer Baronet.
Chap. I.
THE reason why I chuse to begin these Observations with this Treatise of the natural Right of Kings, rather than with any of the rest, though published long before it, is, because being (as I suppose) writ after the rest, and on purpose to assert Monarchy to be Jure Divino, is likely to contain the Authors most mature thoughts; and being written with better connection than his other Tracts, contains the substance of them all; which were designed not so much to establish an Hypothesis, as to observe the weakness of other mens: and being published at several times, and on divers occasions, give us but the same Notions repeated, according as the Tenets in the Authors he writ against needed (as he thought) a Confutation: Which how far they do deserve it, I leave to the Reader to judge; and therefore shall not take upon me to defend any mans Opinions, though never so great or learned, farther than I conceive them agreeable to right Reason. Nor shall I trouble my self to criticize on every small Errour or Mistake in this Author’s Writings, but onely set my self to consider such main Arguments as appear to be founded on false or meer precarious Principles; not concerning my self with his other Treatises, but as they contain some other Reasons or newer Matter than I finde here.
Page 2. The designe of this Treatise, is against an Opinion maintained by some Divines, and several learned men, That Mankind is naturally endowed and born with Freedom from Subjection, and at liberty to chuse what form of Government it please; and that the Power which any one man hath over others, was at first bestowed according to the discretion of the Multitude. Page 3. This Opinion, he says, is not to be found in the Fathers of the Primitive Church: that it contradicts the Doctrine and History of the Holy Scriptures, the constant practice of all ancient Monarchies, and the very Principles of the Law of Nature. And upon this Doctrine the Jesuits, and favourers of the Geneva Discipline, have built this perilous Conclusion: That the People or Multitude have power to punish or deprive the Prince, if he transgress the Laws of the Kingdom. And for this quotes the Writings of divers Jesuits.
How far this Tenet deserves the Author’s Censure, and is liable to the Conclusions he says some have drawn from thence, since the truth or falshood of Propositions does not depend upon the men that have made use of them, I shall consider hereafter; now confining my self onely to examine the Reasons he brings either in this or any other of his Treatises to overthrow this Opinion. And if they prove weak, and insufficient for the end the Author designed them, some Friend of his, or his Tenets, had best finde out others; which if they prove and appear evidently true, I shall then rest satisfied, and acknowledge my self absolutely convinced. In the mean time I shall now give you the Author’s Hypothesis all at once, in his words, that you may judge whether I deal fairly with him or no.
P. 5. To pass over therefore his Cautions (which are honest and sober) I shall come to what he observes upon several passages of Bellarmine. And though he does not quote the places from whence he took them, yet I hope he hath dealt fairly with him: Though I shall not take upon me to defend the contradictions or false consequences either of this or any other Author, since I onely observe the onely Answer which (p. 11.) Sir R. F. gives Bellarmine’s Argument for the natural Liberty of the People, is out of Bellarmine himself, whose words are these: If many men had been created together out of the Earth, they ought all to have been Princes over their Posterity. In which words (the Author says) we have an evident confession, that Creation made Man Prince of his Posterity. And indeed not onely Adam, but the succeeding Patriarchs had by right of Fatherhood, Royal Authority over their Children. Nor dares Bellarmine deny this. That the Patriarchs (saith he) were endowed with Kingly power, their deeds do testifie; for as Adam was Lord of his Children, so his Children, under him, had a Command and Power over their own Children:but still with a subordination to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People. Which conception of Bellarmine, though it may destroy his Argument for natural Freedom, yet I conceive that it does not destroy the necessity of supposing all the Kingdoms and Commonwealths now in being in the world, to have had their beginning from Conquest, or else from the Consent or Institution of the People who began it; as I shall endeavour to prove more at large.
But from this concession of Bellarmine’s, the Author taking this as a yielded point, proceeds thus: P. 12. I do not see how the Children of Adam, or any man else, can be free from Subjection to their Parents; And this Subjection of Children being the Fountain of all Regal Authority, by the Ordination of God himself, it follows, That Civil Power not onely in general is by Divine Institution, but even the Assignment of it specifically to the eldest Parents: Which quite takes away that new and common distinction which refers onely Power Universal and Absolute to God; but Power Respective, in regard of the special Form of Government, to the Choice of the People.
P. 13. This Lordship which Adam by command had over the whole World, and by right descending from him, the Patriarchs did enjoy, was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation. For Power of Life and Death, we finde that Judah the Father pronounced sentence of death against Thamar his Daughter-in-law for playing the Harlot; Bring her forth (saith he) that she may be burnt. Touching War, we see that Abram commanded an Army of 318 Souldiers of his own Family; and Esau met his brother Jacob with 400 men at Arms. For matter of Peace, Abraham made a League with Abimelech, and ratified the Articles with an Oath. These Acts of judging in capital Crimes, of making War, and concludingPeace, are the chiefest Marks of Soveraignty that are found in any Monarchy.
And not onely until the Flood, but after it, this Patriarchal power did continue, as the very name Patriarch doth in part prove. The three Sons of Noah had the whole World divided amongst them by their Father; for of them was the whole World overspread, according to the Benediction given to him and his Sons: Be fruitful, and multiply, and replenish the earth.
Then he proceeds upon a vulgar Opinion, p. 14, 15. That at the Confusion of Tongues, there were 72 distinct Nations erected, not as confused Multitudes, without Heads or Governours, but they were distinct Families which had Fathers for Rulers over them: whereby it appears, that even in the Confusion, God was careful to preserve Paternal Authority, by distributing the diversity of Languages according to the diversity of Families. And for this he quotes the Text, Gen. 10. v. 5. Speaking of the division of the Isles of the Gentiles among the Sons of Japhet, it follows, v. 5. These are the Families of the Sons of Noah, after their Generations in their Nations; and by these were these Nations divided in the Earth after the Flood. So that though the manner of this Division be uncertain, yet it is most certain the Division it self was by Families from Noah and his Children.
P. 16. As for Nimrod’s being King over his own Family by Right, and over other Families by Usurpation and Conquest, and not by Election of the People or Multitude, he gives us Sir Walter Rawleigh’s opinion that it was so; (which I think is no better a proof than if he had given us his own:) but if it were true, it proves no more, than that this Patriarchal Right could not long continue, since it was usurped in the Grandchild of Ham, the fourth discent from Noah. But he proceeds thus:
As this Patriarchal Power continued in Abraham, Isaac, and Jacob, even unto the Egyptian Bondage; so we finde it amongst the Sons of Ismael and Esau: it is said, These are the Sons of Ismael, and these are their names by their Castles and Towns, Twelve Princes of their Tribes and Families, &c.
P. 18. He owns this Paternal Government was intermitted during their Bondage in Egypt, because they were in subjection to a stronger Prince: But after the return of the Israelites out of bondage, God, out of a special care of them, chose Moses and Josuah successively to govern as Princes, instead of the supream Fathers: And after them, God raised up Judges to defend his People. But when God gave them Kings, he re-established the ancient and prime Right of Lineal-succession to Paternal Government: And whensoever he made choice of any special person to be King, he intended that the Issue also should have the benefit thereof, as being comprehended sufficiently in the person of the Father, although the Father onely was named in the Grant.
P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis, That it may seem absurd that Kings now are Fathers of their People, since Experience shews the contrary. It is true (says he) all Kings are not the natural Parents of their Subjects, yet they all either are, or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People; and so in their right succeed to the exercise of Supream Jurisdiction: and such Heirs are not onely Lords of their own Children, but of their Brethren, and all others that were Subjects to their Fathers. And therefore we finde that God told Cain of his brother Abel, His desires shall be toward thee, and thou shalt rule over him. Accordingly when Jacob bought his brothers Birthright, Isaac blessed him thus: Be Lord over thy brethren, and let the sons of thy mother bow before thee.
P. 20. As long as the first Fathers of Families lived, the name of Patriarch did aptly belong unto them; but after a few Descents, when the true Fatherhood it self was extinct, and onely the right of the Father descended upon the true Heir, then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy. By this means it comes to pass that many a Child, by succeeding a King, hath a right of a Father over many a gray-headed Multitude, and hath the Title of Pater Patriæ.
It may be demanded, What becomes of the Right of Fatherhood, in case the Crown does escheat for want of an Heir; whether doth it not then devolve to the People? The Answer is, It is but the negligence or ignorance of the People to lose the knowledge of the true Heir: for an Heir there is always. If Adam himself were still living, and now ready to die, it is certain that there is one man, and but one in the world, who is next Heir, although the knowledge who should be that one man, be quite lost.
P. 21. This ignorance of the People being admitted, it doth not by any means follow, that for want of Heirs the Supream Power is devolved to the Multitude, or that they have power to rule, and chuse what Rulers they please. No, the Kingly power in such cases escheats to the Princes and independent Heads of Families: for every Kingdom is resolved into those parts whereof at first it was made. By the uniting of great Families or petty Kingdoms, we finde the greater Monarchies were at first erected; and into such again, as into their first matter, many times they return again. And because the dependancy of ancient Families is oft an obsure and worn-out knowledge, there the wisdom of many Princes have thought fit to adopt those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes, have enabled them, or made them fit and capable of such Royal Favours. All such prime Headsand Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please: And he that is so elected, claims not his power as a Donative from the People, but as being substituted by God, from whom he receives his Royal Charter of an Universal Father, though testified by the Ministry of the Heads of the People.
P. 22. In all Kingdoms or Commonwealths in the world, whether the Prince be the Supreame Father of the People, or but the true Heir of such a Father, p. 23. or whether he come to the Crown by usurpation of the Nobles, or of the People, or by any other way whatsoever; or whether some few or a multitude govern the Commonwealth; yet still the Authority that is in any one, or in many, or in all these, is the onely Right and natural Authority of a Supream Father. There is, and always shall be continued to the end of the world, a natural Right of a Supream Father over a multitude, although by the secret Will of God, many do at first most unjustly obtain the Exercise of it.
To confirm this natural Right of Regal Power, we finde in the Decalogue, that the Law which enjoyns Obedience to Kings, is delivered in the Terms of, Honour thy Father and thy Mother: as if all Power were originally in the Father. If Obedience to Parents be due immediately by a natural Law and Subjection to Princes, but by the mediation of an humane Ordinance, what reason is there that the Laws of Nature should give place to the Laws of Men? as we see the power of the Father over his Child, gives place, and is subordinate to the power of the Magistrate.
P. 24. If we compare Rights of a Father with those of a King, we finde them all one, without any difference at all, but onely in the latitude or extent of them: As the Father over one Family, so the King as Father over many Families, extends his care to preserve, feed, clothe, instruct,and defend the whole Commonwealth. His War, his Peace, his Courts of Justice, and all his Acts of Soveraignty, tend onely to preserve and distribute to every subordinate and inferiour Father, and to their Children their Rights and Priviledges; so that all the Duties of a King are summed up in an Universal Fatherly Care of his People.
I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings, as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words; and so be the better able to judge whether I understand and answer him or not; as because it contains the substance and strength of all that the Author had to say in defence of it.
So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it. His first Argument against the natural Freedom of Mankinde is drawn from Scripture, and from Bellarmine’s own Concession, That Adam was (and consequently every other Father ought to be) a Prince over his Posterity. And as Adam was Lord over his Children, so his Children, under him, had a power over their own Children, suberdinately to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People.
So that neither the Children of Adam or any else, can be free from subjection to their Parents; and this subjection to Parents being the foundation of all Legal Authority, by the Ordination of God himself: therefore no man can be born in a state of Freedom or Equality.
In answer to which, I shall not concern my self what Bellarmine or any other have granted; but would be glad to know where and how God hath given this Absolute power to Fathers over their Children, and by what Law Children are tyed to an Absolute Subjection or Servitude to their Parents, since the Author in another place affirms, that at first a Childe, a Slave, and a Servant, were all one without any difference.Vid. Preface to his Observations on Aristotle’s Politicks. I see no divine Charter in Scripture of any such absolute despotick power granted to Adam or any other Father.
The Author, in his Observations on Grotius de Jure belli, &c. founds this dominion of Adam over the Earth and all Creatures therein, on Gen. 1. 28. and quotes Mr. Selden in his Mare Clausum; where he says, That Adam, by donation from God, was made the general Lord of all things, not without such a private dominion to himself as did exclude his Children, &c. From which words I do not conceive that Adam’s absolute power over his own Off-spring can be made out; for the words are spoken as well to the Female as Male of Mankind: Be fruitful and multiply, and replenish the Earth, and have dominion over the fish of the Sea, &c. and over every living thing that moveth (in the Original, creepeth) upon the face of the Earth. By which words Adam hath no power conferred upon him over his own Children (when he should have them:) These words implying no more than a conferring of a power by God on Mankind, under these words of Male and Female (and was not at all personal to Adam or Eve alone) whereby they might subdue or tame the Brute Creatures for their use, not comprehending those of the same kind with themselves; since the general words extend no farther than to every living thing that creepeth upon the Earth: nor does Gods grant of the Creatures to Noah comprehend more than this: Onely God there gives man a priviledge to kill the Creatures for Food, which Adam had not. Which shews that Adam was so far from having any such power of Life and Death over his own Children, that he had it not so much as over Brute Creatures: Since if he had this power as a Monarch, it is highly probable, that being the Father of all Men in the world, and having by the murder of Abel not onely loft a Son but a Subject, it had been his Right alone to have punished Cain the Murderer: Whereas we finde Cain, Gen. 4. v. 14. upon his conviction of the Murder, telling God, that every one that findeth him, should slay him; and therefore, v. 15. God set a mark upon Cain, lest any finding him should slay him. From whence we may infer, 1. That it was a Law of Nature then, that Murder was to be punished. 2. That this Right of punishing did not belong to Adam, as a Father, alone, so as to have power of Life and Death over his Children, since the Text does not mention that he was afraid his Father should put him to death, but every one that met him: Neither does God set a mark upon him to secure him from Adam, but from any body else that should light on him. From whence it follows, that if Adam had no more right by Gods concession to take away his Sons life for the murder of his Brother, (which is one of the greatest offences he could commit) than any other of his Brethren or Kinsmen; there is no reason why he should have it in any other case. And as for what the Author says, That this Lordship which Adam had over the whole World, the Patriarchs by a Right descending from him, did enjoy; which was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation; I cannot understand how this Right derives it self from Adam: For he tells us but a little before, p. 12. That Civil Power not onely in general is by divine Institution, but even the Assignment of it specifically to the eldest Parents. Therefore granting that all the Patriarchs from Abraham to Jacob’s twelve Sons, inclusively, assumed a power of Life and Death over their own Families, 1. I desire to know how this Right can be derived from Adam: for the Right of supream Monarch of the world descending upon the eldest Son of Adam, whom we will suppose to have been Seth (since Cain might forfeit his Birthright,) this power of Life and Death could onely be truly vested in the eldest Grandchild, or descendant from Seth; which I suppose the Author means by eldest Parents, or else he talks nonsence: And that Abraham was this eldest Grand-son of Seth, will be hard to prove, since it is not apparent from Scripture, whether Shem or Japhet were the eldest Son of Noah, or Abram or Nahor the eldest Son of Terah. And the Fathers and ancient Commentators on this place, are divided in their opinions concerning this point. And it is plain from divers places in Scripture, that the eldest Son is not always first named. But supposing that Shem was the eldest Son of Noah, it does not appear that Arphaxad from whom Abram descended, was his eldest Son, since the Scripture does not undertake to give us the names of all the Sons of Shem, but onely of Arphaxad, as his name was necessary for the deriving of the Genealogy of Abraham the Ancestor of the Jewish Nation. But if any man will answer (as the Author does, p. 21.) that this right Heir of Adam coming by length of time to be lost, this supream Kingly power became devolved to all independent Heads of Families; then this Right of Adam, as Lord and King of the whole World, as the first man, must certainly be extinct, since none but the true Heir could have a Right to that (according to the Author’s principles:) So that this power of Life and Death which the Author will have the Patriarchs to have exercised over those of their Family, must belong to them either as Fathers, or else as Masters, or Heads of their particular Families; and not as Heirs to Adam. But since the Author seems to found this Power of Adam upon Mr. Hunton’s concession, (See Anarchy of a limited Monarchy, p. 264.) That it is God’s Ordinance that there should be Civil Government, because Gen. 3. 16. God ordained Adam to rule over his Wife, and her desire was to be subject to his; and that as hers, so all theirs that should come out of her: First, all Expositors look upon these words as respecting only a Conjugal, and not Filial Subjection. Neither were they spoke in the state of Nature or Innocence, but after the Fall. Neither for all that, did Adam, or any other Husband, by these words acquire an absolute Authority over the Life of his Wife, in the state of Nature, so that she hath no right left her to defend herself from the unjust violence or rage of her Husband. Therefore since this Power of Adam over Eve and her Children, cannot be pretended to belong to him as a Father, but as a Master of a Slave, and those that shall be descended from her; it were worth while to enquire, what Power a Father, if Master of a Family can claim separate from any commonwealth, (as we will suppose these Patriarchs were.) For this will serve toward the solving those examples he puts of Abram’s power of Peace and War, and of Judah’s power of Life and Death over his Daughter-in-law Thamar. We will first then consider the power of a Father by the Law of Nature over his Children, and then that of a Master of a Family over his Wife, Servants, or Slaves. To begin with that of a Father, as the most worthy; I shall endeavour to search into the Original of the Father’s power over the persons of his Children, and how far it extends.
It is evident, that this Power of Fathers over their children, can only take place in the state of Wedlock; so as to Children got out of Marriage, it is uncertain who is their Father; who can only be known by the declaration of the Mother; and she sometimes cannot certainly tell herself. So that no man is obliged to take care of or breed up a Bastard, because the Mother, if she had her liberty of keeping what company she pleased, can never morally assure him that the Child is his: therefore unless he take upon him the care and education of this Child, it belongs to the Mother, and not to him to provide for it. So that the Right of the Father over his Child, commences by vertue of the Marriage, which is a mutual Compact between a Man and a Woman for their Cohabitation, the generation of Children, and their joint care and provision for them. So that though by the Law of Nature (which is confirm’d by the Law of God) the Woman as the weaker vessel, is to be subject to the Man, as the stronger, stouter, and commonly the wiser creature, to whose care and courage she must owe the greatest part of her provision and protection; yet she is not without an Interest in the Children, since she is under an obligation to perform her part (and that the most laborious and troublesome) in their Education; though her Power and Right in them be still subordinate to that of the Man, to whom by force of the Marriage she hath already subjected herself. Some Writers therefore think they have done sufficiently when they tell us, that the Father hath an absolute Dominion over his Child, because he got it, and is the cause of its being. By this Argument the Mother hath greater Right over the person of the Child, since all Naturalists hold the Child partakes more of her than of the Father; and she is besides at greater pain and trouble, both in the bearing, bringing it forth, nursing and breeding it up. But if it be answered, that the Man being Master of his Wife, is by the Contract so likewise of her Issue: Then it follows, that this power of the Father does not commence barely from Generation, but is acquired from the Contract of Marriage; which (till I meet with some reason to the contrary) I see not why it might not be so agreed by the Contracts, that the Father should not dispose of the Children without the Mothers consent: Since we see it often so agreed in the Marriages of Soveraign Princes, who are always supposed to be in the state of Nature, in respect to each other.Vid. Articles of Marriage between King Philip and Queen Mary, in Godwin’s Annals, An. 1554. Thuanus, Lib. IX. So likewise where a Subject marries his Queen, as the Lord Darnley’s Marriage with Mary Qu. of Scotland, the Soveraignty, and consequently the Power over the Children to be born remained entirely in Her. Yet though I will not deny, but some Gratitude and Acknwledgment is due from Children to Parents, even for this, that they did enter into the state of Marriage for their generation, and were the occasion of their Being: Yet I do not see, how by this alone a Father acquires an absolute power and dominion over the person of the Child, to dispose of it as he thinks fit: Since Parents acting here only as Natural, and not Moral Agents, they are not the voluntary Causes of its generation: Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children, upon so slight a foundation.
We must therefore trace this Right of Fathers over his Children to a more true original than any of these. Since then all the Laws of Nature, or Reason, are intended for one end or effect, viz. the common good and preservation of Mankinde; and that Marriage is no otherwise a Duty, than as by the propagation of our Species it conduces to, without the help and assistance of others; and that the Parents entred into this state of Marriage for the procreation of Children: both the Instinct of Nature and Law of Reason dictate, that they are obliged to take care of and provide for that Child, which they as subordinate Causes have produced; as being those on whom God hath imposed this Duty, which is much greater than that of Generation: for now the world is sufficiently peopled, it may be doubted, whether any person is obliged to Marry, further than it may consist with their conveniency, or course of Life. But Parents, when they are Married, are tyed by the Laws of Nature to take care of the Children. Therefore I suppose the highest Right of Parents in their Children, doth arise merely from their discharge of this great Duty of Education, as may appear from this Instance, Suppose the Parents not being willing to undertake the trouble of breeding up the Child, do either expose it, or pass over their Right in it to another, assoon as it is born; I desire to know if the person that finds this Child, or he to whom it is assigned, breed it up until it come to have the use of Reason, what Duty this Child can owe his Parents, if they are made known to him? Certainly, all the obligation he can have to them, must be upon the score of their begetting him; which how small that is, you may observe from what hath been said before: nor can the Parents claim any further Right in this Child, since by their exposing and granting it away, they renounced all the Interest they could have in it; so that the Duty and Gratitude he should have owed them, had they taken upon them the care and trouble of breeding him up, is now due to his Foster-Father or Mother, who took care of him until he was able to shift for himself. From whence it is evident, that the highest Right which Parents can have in their Children, is not meerly natural, from generation; but acquir’d by their performance of that nobler part of their Duty. And so the highest Obedience which Children owe their Patents, proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents, for the trouble and care they put them to in their Education.
Having now, I hope, found out the Original of Parents Right and Interest in their Children, and the chief ground of their Gratitude and Duty to their Parents; we will now proceed to the Second Point proposed, and consider what kinde of Right this is, and how far it extends. Since therefore the Father’s greatest interest in his Child proceeds from his having bred it up, and taken care of it, and that this Duty is founded on that great Law of Nature, that every Man ought to endeavour the common good of Mankinde, which he performs, as far as lies in his power, in breeding up, and taking care of his Child; it follows, that this right in the Child, or power over it, extends no farther than as it conduces to this end, that is, the good and preservation thereof: and when this Rule is transgressed, the Right ceases. For God hath not delivered one man into the power of another, merely to be tyrannized over at his pleasure; but that the person who hath this Authority, may use it for the good of those he governs. And herein lies the difference between the Interest which a Father hath in his Children, and that property which he hath in his Horses or Slaves; since his right to the former extends only to those things that conduce to their Good and Benefit; but in the other he hath no other consideration, but the profit he may reap from their labour and service, being under no other obligation but that of Humanity, and of using them as becomes a goodnatur’d and merciful man; yet still considering and intending his own advantage, as the principal end of his keeping of them. Whereas in his Children he is chiefly to design their good and advantage, as far as lies in his power, without ruining himself; and though he justly may make use of their labour and service while they continue as part of his Family; yet it is not for the same end alone that he uses his Horses or Slaves, but that his Children being bred up in a constant course of Industry, may be the better able either to get their own living, or else to spend their time as they ought to do, without falling into the Vices of Idleness or Debauchery. So that it is evident, the Father has no more right over the Life of his Child than another man; being as much answerable to God if he abuse this Right of a Father, in killing his innocent Son, as if another had done it. Neither hath he from the same Principles any right to maim or castrate his Child, (as this Author allows him to do, in his Directions for Obedience;) much less fell him for a Slave: Therefore it is no part of the Law of Nature, (unless he cannot otherwise provide for it) but of the Roman, or Civil-Law, that a Father should have power to sell his Son three times. For the Father is appointed by God to meliorate the condition of his Child, but not to make it worse; since it is not himself, but God that properly gave him his being. So that I hope I have sufficiently proved there is a great difference between a Child and a Slave, or a Servant for Life, though this Authour will have them in the state of Nature to be all one.
But, for the better clearing of this point, how far the power of Parents over their Children extends, I think we may very well divide (as Grotius does) the life of the Child into three periods or ages.De J. B. l. 2. c. 5. § 2. The first is the time of imperfect judgment, or before the Child comes to be able to exercise his Reason. The second is the period of perfect Judgment, yet whilst the Child still continues part of his Fathers Family. The third is after he hath left his Father’s, and either enters into another Family, or sets up a Family himself. In the first Period, all the actions of Children are under the absolute dominion of their Parents: for since they have not the use of Reason, nor are able to judge what is good or bad for themselves, they could not grow up nor be preserved, unless their Parents judged for them what means conduced to this end; yet this power is still to be directed for the principal end, the good and preservation of the Child. In the second Period, when they are of mature Judgment, yet continue part of their Fathers Family, they are still under their Fathers command, and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns; and in both these Ages the Father hath a power to set his Children to work, as well to enable them to get their own Living, as to recompence himself for the pains and care he hath taken, and the charge he may have bin at in their Education. For though he were obliged by the Law of Nature to breed up his Children, yet there is no reason but he may make use of their labour, as a natural recompence for his trouble. And in this Period the Father hath power to correct his Son, if he prove negligent, or disobedient; since this Correction is for his advantage, to make him more careful and diligent another time, and to subdue the stubbornness of his Will: But in other actions the Children have a power of acting freely, yet still with respect of gratifying and pleasing their Parents, to whom they are obliged for their Being and Education, since without their care they could not have attained to that age. But since this Duty is not by force of any absolute Subjection, but only of Piety, Gratitude and Observance, it does not make void any act, though done contrary to those Duties, as Marriage, and the like; for the gift of a thing is not therefore void, though made contrary to the Rule of Prudence and Frugality. In the third Period, they are in all actions free, and at their own dispose; yet still under those obligations of Gratitude, Piety and Observance toward their Parents as their greatest Benefactors, since if that they have well discharged their Duty toward their Children, they can never in their whole lives sufficiently recompence so great benefits as they have received from them.
But it seems the Authour is not satisfied with these distinctions, but saies, He cannot conceive, how in any case Children can ever naturally have any power or moral Faculty of doing what they please, without their Parents leave; since they are always bound to study to please them.Observations on Grotius de J. B. p. 62.And though by the Laws of some Nations, Children when they attain to years of discretion, have Power and Liberty in many actions, yet this Liberty is granted them by positive humane Laws only, which are made by the Supreme Fatherly Power of Princes, who regulate, limit, or assume the Authority of Inferiour Fathers, for the publick benefit of the Commonwealth: So that naturally the Power of Parents over their Children never ceaseth by any separation, but only by the permission of the transcendent Fatherly Power of the Supreme Prince, Children may be dispensed with, or priviledged in some cases from obedience to subordinate Parents.
For my part, I see no reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary: For he only tells us, He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please, without their Fathers leave; and that naturally the Power of Parents never ceaseth by any separation, &c. but gives us no other reason, than that they are always bound to study to please them. As if this obligation of Gratitude and Complacency, did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children, and an absolute power over them in all cases whatsoever, so that Children shall have no Right left to consult their own good or preservation, in any case whatsoever, farther than the Father pleases.Vid. Bodin de Rep. l. 1. c. 4. As for Bodin, and divers others that have writ on this subject, they do no more than follow others, who have asserted this Absolute Power, upon no other grounds than the Jewish or Roman Municipal Laws; but have never troubled themselves to look into the true Original of Paternal Authority, or Filial Subjection, according to the Laws of Nature or Reason. And most Treatises of this subject being commonly written by Fathers, they have been very full in setting forth their own Power and Authority over their Children; but have said little or nothing of the Rights of Children, in the state of Nature, towards their Parents.Loc. sup. laudar. Therefore Bodin thinks he hath done enough in supposing that if a Father is wise, and not mad, he will never kill his Son without cause, since he will never correct him without he deserve it; and that therefore the Civil Law supposes, that the Will of the Parents in managing the concerns of their Children, is void of all Fraud; and that they will rather violate all Divine and Humane Laws, than not endeavour to make their Children both rich and honourable: And from those instances out of the Roman Law, supposes that Parents cannot so much as will any thing to their Childrens prejudice, or so much as abuse this Fatherly Power of Life and Death: And therefore thinks he hath sufficiently answered the Objection he makes, that there have been some Parents, who have abused this power so far, as to put their Children to Death without cause. He says, They give us no Examples to the contrary: And supposing this to have sometimes fallen out, must therefore Legislators alter a wholsome Law, because some persons may abuse it?
But if we consider what Bodin hath here said, we shall finde every one of his Suppositions false: For, 1. he supposes it to be the Right of all Fathers, by the Law of Nature, to have an absolute power over the lives and persons of their Children. 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point. 3. That Fathers do seldom or never abuse this power. 4. That if they do abuse it, yet it is better to leave it in their hands, than to abrogate it or retrench it. The falseness of all which Assertions, I either have already, or else shall hereafter make manifest: Only I shall remark thus much at present, That upon Bodin’s principle, women that murder their Bastards would have a good time on’t, because having no Husbands, they have full power over the Life of their Children; and there is no reason that it should be retrencht by any positive Laws, because some offend against it. But however, this Argument of Bodin’s would do our Author’s cause no good: for if Parents are to be trusted with this absolute power over their Children, because of the natural affection they are always supposed to bear them; then Princes ought not to be trusted with it, since none but Parents themselves can have this natural affection towards their Children; Princes (as the Author grants) having this power onely as representing these Parents. Whereas Parentage is a natural Relation, and neither can be created nor assigned farther than the Civil Laws of the Country have appointed; and therefore there can be no adopted Son by the Law of Nature, since Adoption arises chiefly from the promise and consent of the person adopted, and partly from the Authority of the Civil Law, or Municipal Law of the Commonwealth: So that in relation to Princes, upon this Reason of Bodin’s, cessante causa, cessat effectus. But indeed Bodin never dreamt of this fine Notion of our Author’s, that all Monarchs were not onely Heads, but Fathers of their people, or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino. But I shall trouble my self no farther with him at present, but shall proceed to consider this point of absolute Obedience a little farther.
I suppose the Author (as any sober man else) would grant, that Children are not obliged so much as to attempt to perform the commands of their Parents, in case they evidently appear impossible or extravagant, such as a Father may give when he is in a fit of drunkenness, madness, or sudden rage, which is all one with madness; and of this who can judge, but the Children who are to perform these Commands? And in this case no man will deny but it is lawful for the Children to hold, nay binde their mad or drunken Parents, in case they cannot otherwise hinder them from doing mischief, or killing either themselves, their Mothers, or Brethren. So that though they may do this from that natural love & charity which all men in the state of nature ought to shew toward each other, yet they may likewise justific the doing of it as Children, who ought to have a greater concern for the good and preservation of their Parents, than meer strangers, and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations; this being for the Fathers good and preservation, and that for which he hath cause to thank them when he comes to himself. And if it be said, that the Son may then refuse his Fathers Commands, or resist them, pretending he is mad, drunk, or in a rage, when he really is not, and thereby take occasion to obey his Father no farther than he pleases: to this I answer, That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned, or else onely pretends that he thinks so, when really he does not. If in the first case he erre in his judgment, and the ignorance did not proceed from his own fault (either of passion, prejudice, or too slight an esteem of his Fathers understanding) he is not culpable, though he make such a false judgment of his Fathers actions: for God considering onely the sincerity of the heart, does not require of any man more than he is able to perform. But if on the other side the Son play the Hypocrite, and refuse his Parents Commands, pretending they are mad or drunk, when really they are not, he is without doubt doubly guilty both, of Hypocrisie and Disobedience. But this does not hinder Children in the state of Nature from judging of the reasonableness or lawfulness of their Parents Commands, and of the condition they are in when they gave them: for otherwise a Child ought to be of his Fathers Religion, though it were Idolatry, if he commanded it; or were obliged to break any of the Laws of Nature, if this Obedience were absolute. And it is a lesser evil that the Commands of Parents should be disobeyed, nay, sometimes their persons resisted, than that they should make a Right to command or do unreasonable and unlawful things in a fit of madness, drunkenness, or passion, destroy either themselves or others.
But it may be replied, that though Fathers in the state of Nature have no Right to act unjustly or cruelly toward their Children, or to command such unlawful or unreasonable things; yet however they are onely answerable to God for so doing; and there is out of a Commonwealth no superiour power that can question the Fathers actions: for since his Children are committed by God to his care, he onely is answerable for them, and for his actions towards them, since no other man hath any interest or concern in them but himself. So that if he kill, maim, abuse, or sell his Son, there is no man that hath Right to revenge, punish, or call him to an account for so doing; and if no others that are his equals, much less his Wife and Children, who are so much his Inferiours, and who ought in all things to be obedient to his Will. Therefore this Power, though it be not absolute in respect of God, yet is so in respect of his Wife and Children: and so in all cases where the Children cannot yield an active Obedience to their Fathers commands, they are notwithstanding obliged (by the Law of God; See Ephes. 6. 1. Colos. 3. 20.) to a passive one; and patiently to submit to whatever evils or punishments he pleases to inflict, though it were to the loss of Life itself.
To which I answer, That though it is true, a Father in the state of Nature, and considered as the head of a separate Family, hath no Superiour but God, and consequently no other person whatsoever hath any Authority or Right to call him to an account, and punish him for this abuse of his paternal Power; yet it doth not follow, that such absolute submission is therefore due from the Children, as does oblige them either to an active or a passive Obedience in all cases to the Fathers Will, so that they neither may, nor ought to defend themselves in any circumstance whatsoever. There is a great deal of difference (in the state of Nature) between calling a man to an account as a Superiour, and defending a mans self as an equal. For a man in this state hath a right to this latter against all men that assault him, by the principle of Self-preservation: But no man hath a right to the former, but onely in respect of those over whom he hath an Authority, either granted him by God, or conferr’d upon him by the consent of other men. So that the evils which an Aggressor, or Wrong-doer, suffers from him he injured, though in respect of God the Supreme Lawgiver they may be natural Punishments ordained by him, to deter men from violating the Laws of Nature, yet they are not so in regard of the Person who inflicts them. For God may sometimes appoint those for the Instruments of his Justice, who otherwise do injury to the person punished; as in the case of Absalom’s Rebellion against his Father David. So that in this case the evils the wrong-doer suffers are not properly Punishments, but necessary Consequences of his Violence and Injustice; and in respect of the Inflicter, are but necessary means of his preservation. So that if a Son have any Right to defend himself in what belongs to him from the unjust violence of his Father, he doth not act as his Superiour; but in this case as his Equal, as he is indeed in all the Rights of Nature, considered only as a Man; Such as are a Right to live, and to preserve himself, and to use all lawful means for that end. Therefore since, as I have already shown, that a Father hath no higher Right or Authority from God over the person of his Child, but as it tends to his good and preservation, or as it conduces to the great end of Nature, the common Good and preservation of Mankinde: So when the Father transgresses this Authority, his Right ceases; and when that ceases, the Sons Right to preserve himself (and in that, to pursue that great end) begins to take place. Therefore out of a Civil state, if a Father will endeavour evidently, without any just cause, to take away his Sons Life, I think the Son may in this case, if he cannot otherwise escape nor avoid it, and that his Father will not be pacified neither with his submission nor entreaty, defend himself against his Father, not with a design to kill him, but purely to preserve his own Life; and if in this case the Father happen to be kill’d, I think his Blood is upon his own head. But if any object to me the Example of Isaac’s submission to his Father, when he intended to sacrifice him: To this I answer, that as this act of Abraham’s is not to be taken as an Example for other Fathers, so neither does the Example of Isaac oblige other Sons. For as Abraham had no right to offer up his Son, but by God’s express Will; so it is rational to suppose, that Isaac being then (as Chronologers make him) about nineteen or twenty years of Age, and able to carry wood enough upon his back to consume the Sacrifice, and of years to ask where the Lamb was for the Offering; was also instructed by his Father of the cause of his dealing so with him: and then the submission was not paid to his Father’s, but to God’s Will, whom he was perswaded would have it so. But if any man yet doubts, whether resistance in such a case were lawful, I leave it to his own Conscience, whether if his Father and he were out of any civil estate, whose assistance he might implore, he would lie still, and suffer his Father to cut his throat, only because he had a minde to it, or pretended revelation for it.
So likewise if a Father in this state should go about to violate his Sons Wife in his presence, or to kill her, or his Grandchildren, I suppose he may as lawfully use the same means for their preservation, (if he cannot otherwise obtain it) as he might for his own; since they are delivered to his charge, and that he only is answerable for them. For since the Father doth not acquire any property in the Sons person, either by begetting or educating him, much less ought he to have it over those the Son hath begotten.
But though Children may have this Right of defending their own Lives, or those of their Wives and Children, from their Fathers unjust violence, when they can by no means else be preserved; Yet I would not be here understood to give Children this right of resisting upon any less occasion; as if the Father should only go about to correct his Son, though without just cause, it were therefore lawful for him to resist or beat his Father. For we are obliged by the Law of Christ to bear smaller Injuries from others, much more from a Father; neither yet would I give them any right to continue this state of War, and to revenge upon their Parents the Injuries they have formerly received at their hands. For all Revenge, taken in this sence, as a satisfaction of the minde in returning of an evil or injury already received, without any respect to a mans own preservation, or the good of the person that did the wrong, is unlawful even in the state of Nature. Therefore this returning Evil for Evil, which some improperly call Revenge, is only justifiable for one or both of these ends; either to make the party that hath done the Injury sensible of his Errour, and seeing the Follies and Inconveniences of it, to alter his minde, and resolve to do so no more; or as it may conduce to a mans own preservation for the future, and be a warning to others not to injure him in like manner, since they see he will not take injuries tamely. But all this is still left to a mans own prudence, how far he will pass them by: And he is certainly obliged to leave off returning them, assoon as he can be safe without it; since otherwise quarrels would be perpetual. Neither ought one, who hath been highly obliged to a man perhaps for his life, to return him evil for evil, since scarce any Injury being great enough to cancel so great an Obligation. Therefore since a Father, who hath truely performed his Duty, is the greatest Benefactor we can imagine in this life; so no man ought to revenge an Injury, though never so great, upon him; since it is not only undutiful, but ungrateful, and cannot serve either of those two ends for which alone this returning evil for evil is allowable. For first, it cannot make the Father see his fault; since this correction being from a Son whom he looks upon as one highly obliged to him, and so much his inferior, will rather serve to exasperate than amend him. Secondly, Neither can this bearing of the Injury encourage others to attempt doing the like; since all that know the case, will likewise consider the person that did the wrong. So that Patience alone is the only lawful means to make the Father see his Errour, and be reconciled to his Child, who ought to embrace it assoon as the Father offers it.
But as for the places of Scripture brought for absolute Obedience to Parents; viz. the fourth Commandment, Honour thy Father and thy Mother. Children, obey your Parents in the Lord, Ephes. 6. 1, 2. and Children, obey your Parents in all things, Col. 3. 20. God did not intend here to give us any new Law or Precept concerning this Duty, but to confirm and explain the fifth Commandment; as that was but a confirmation of the Law of Nature, by which men were obliged to reverence and obey their Parents, long before that Law was given. Therefore since the Laws of Nature (which are but Rules of right Reason for the good of Mankinde) are the foundation of this Commandment, and of all those commands in the New Testament, they are still to be interpreted according to that Rule. Neither are other places of Scripture understood in any other sence; such as are those of turning the right Cheek, of giving away a mans Coat to him that would go to Law, and the like: all which we are not to Interpret Literally, but according to Reason.See Grotius and Dr. Hammond’s Annot. upon these places. And so are likewise these words of St. Paul to be understood, Children, obey your Parents inall things; that is, in all things reasonable and lawful. And this sence must be allowed of, or else Children were bound to obey all commands of their Parents, whether unlawful or lawful; being comprehended under this general word All. Nor will the distinction of an active or passive Obedience help in this case; for passive Obedience cannot be the end of the Fathers command, and consequently his will is not performed in suffering; since no Father can be so unreasonably cruel, as to command a thing meerly because he would have occasion to punish his Son whom he thinks must not resist him. Neither do these places appoint a Son when an infant, a man of full age, and perhaps an old man of threescore, to be all governed the same way, or that the same Obedience is required of them all.
And this brings me to a fuller Answer to the Author’s Argument, and to shew that though Children are indeed always bound in Gratitude to please their Parents (as far as they are able without ruining themselves) and to pay a great reverence to them; yet that this submission is not an absolute subjection, but is to be limited according to the Rules of right Reason or Prudence. And to prove this, I will produce instances from the case of Adam’s Children, since the Author allows no Father to have had a larger authority than himself: We will therefore consider in the first place, Adam’s power as a Father, in respect of his Sons marriage. Suppose then that he had commanded one of his Sons never to marry at all, certainly this command would have been void, since then it had been in Adam’s power to have frustrated Gods Command to mankind of increase and multiply, and replenish the Earth; which was not spoken to Adam and Eve alone, since they could not do it in their persons, but to all mankind represented in them. And likewise Adam had been the occasion of his Sons incontinency, if he had lain with any of his Sisters before marriage. Secondly, Suppose Adam had commanded Abel to marry one of his Sisters (that being the onely means then appointed to propagate mankind) which he could not love, can any man think that he had been obliged to do it? Certainly no: for it would have been a greater sin to marry a wife he knew before-hand he could not live with, than to disobey his Father; for else how could this be true, Therefore shall a man leave Father and Mother, and cleave to his Wife? Since then Adam could not force his Sons affections, but onely recommend such of his Sisters as he thought would best suit with his humour, therefore if the Son could not live without marriage, and that Adam could not force a Wife upon him, it was most reasonable that he should chuse a Wife for himself. And to come to that other great point, that the Son can never separate himself from his Fathers Family nor subjection, as his Lord and Master, without his consent: Suppose then that Adam had been so cruel and unnatural (as some Fathers are) and being sensible of the profit he received from his Sons labours, would never have given them leave to have left his Family, and have set up for themselves, nor to have had any thing of their own, but (onely allowing them and their Wives a bare subsistance) have kept them like slaves as long as they lived; the Author I suppose would reply, That he might have done so if he had pleased; and that the Sons had no lawful means to help themselves, since he onely was Judge when or whether ever it was fit to set them free or no.
But I desire to know whether Adam had this power by a natural Right, or an acquired; not by the latter: for I have already proved, that neither Generation nor Possession can confer an absolute Right over the person of another: Nor yet could he have it by the Sons consent; for they would never give their consent to such an absolute slavish subjection. Nor yet could he have any such Right by the revealed. Will of God, since I have also proved that such an absolute subjection is nowhere requir’d by him in Scripture.
But now to return to the acquired Right of Education, neither can that confer so absolute a power over any mans person, as that therefore he should be a slave to his Fosterer as long as he liv’d; since admitting that the Father, or other person that takes upon him that care, may perhaps justly claim a Right in the service or labour of the Childe, to satisfie them for their trouble and charge in bringing him up: Yet it does not therefore follow, that this service is due as long as the Childe lives, but rather until such time as they can make his labour satisfie them for their charge and trouble in keeping him; which may very well be by that time the Child attains to twenty five years of age at farthest. And there are those that have offered to breed up and maintain all the Foundlings and Bastard-children in England, if they may be bound to serve them until about that age. So that I see no reason why a few years Education should give any man a Right over another person as long as he lived. But if it be urged that the Childe owed his life to his Father or Fosterer, since without his assistance he must have perisht, and therefore the service of the Childs whole life is but little enough to recompence it; to this I answer, That the Parents are under an absolute obligation, by the Laws of God and Nature, to breed up their Childe; and they sin if they do not perform it as they ought: the end of a Father not being chiefly for the breeding up and preservation of the Child, and therefore there is no reason he should acquire such a property in him, meerly because he did his duty; and the intent of a Father being to better the condition of his Son, and not to make it worse, I doubt whether an absolute or perpetual Servitude, or Death it self, were the better bargain; and if this Right will not hold for the Father himself, much less will it for a Fosterer, since he is likewise obliged by the Laws of Nature and Humanity, if he be able, to breed up the Child he finds, and not to let it perish. So that the advantage he may make of the Child ought not to be the principal end of his undertaking, but the doing of good to mankind; and the advantage is to be considered onely as an encouragement, not as the onely motive to his duty, since he is obliged to do the same thing, though he were sure the Childe would either die or be taken away from him, before it could be with him half long enough to satisfie him. Neither does this reason hold true, according to the Scripture-rules of Gratitude, that a man hath Right to exact of one to whom he hath done a Courtesie, or bestowed a Benefit, a Return as great as the Benefit bestowed; since this were not beneficence, but meer bartering or exchange: And a man who had his life saved by anothers assistance (suppose by pulling him out of the water) was obliged by this principle to leave his life at his disposal ever after.
Therefore I see no reason, from all that hath yet been said, why a Son when he comes to be a man able to shift for himself, may not in the state of nature marry, and separate himself from his fathers Family, even without his Fathers consent, if he cannot otherwise obtain his liberty by his entreaty and all fair means: Not but that the Father may, if he please, disinherit his Son for so doing, or for marrying without his consent, since every man is free to dispose of his own upon what conditions he thinks fit. And the Son was to have considered before-hand which he valued most, his own Liberty, or his Fathers kindness, and the hopes of his share of his Estate after his death.
But I now come to the Author’s main Argument from Scripture-Examples: That the Patriarchs, by a Right derived from Adam, did exercise as Heads of their respective Families, a dominion as absolute as that of any Monarch: And so instances in Thamar brought out to be burnt by her Father-in-law Judah: Touching War, Abram’s commanding an Army of 318 Souldiers of his own Family; Esau’s meeting his Brother with 400 men at Arms: For matter of Peace, Abram’s making a League with Abimelech: And that these acts of judging in capital Crimes, of making War and Peace, are the chiefest marks of Soveraignty that are found in a Monarchy. All which I shall endeavour to answer. First, The instance of Judah rather makes against him; for he confines this power before to the chief Father of the Family, and will never have Children to be free from subjection to their Fathers: whereas in this case Judah, as Head of his own Family, exercised an absolute power of Life and Death, and so was free from subjection to his Father Jacob, who was then living. And suppose (as the Text, Gen. 38. expresses) Judah went down from his Brethren to a certain Adullamite, and there married, and set up a distinct Family; yet this will not help the Author, since (p. 33.) he will not allow the Fatherly Authority to be confined to one Family, if the Families were at such a distance as they might receive their fathers commands; which lies upon him to prove: And therefore this subjection was not perpetual. Secondly, I shall shew by another Example, that the Head of a Family hath not absolute power of the lives of his Children and Grandchildren; and that is from Reuben’s pathetical Speech, Gen. 42. to his Father Jacob, when he refused to send Benjamin with him into Egypt; Slay my two sons (says he) if I bring him not unto thee. Now if Jacob had this absolute power as a Father, it had been impertinent in Reuben to have spoke thus, since he knew his Father had power to slay his Sons, if he thought fit, whether he gave him such an authority or not. But if it be replied, that Jacob when his Sons married might set them at liberty, and so give them power of Life and Death; that is, make them absolute in their respective Families: This is gratis dictum, and no proof brought of it out of Scripture, and therefore may as well be otherwise: Nor is it likely that Jacob should thus manumit his Sons, since it is apparent they did not then set up distinct Families; for we finde Jacob still commanding them, as Head of the Family, to go down and buy Corn in Egypt, saying, Go down and buy us (that is, the whole Family, whereof they were Members) a little food. And yet these Sons did not think their Fathers command so absolute, but that they tell him plainly, they will not go down unless he send Benjamin with them.
As for the other Examples of Abram’s exercising the full power of a Prince in making War and Peace, I will not deny that the Heads of separate Families, being out of Commonwealths, have many things analogous to them, though they are not Commonwealths themselves: And the reason why I do not allow them to be so, is, because the ends of a Family and a Commonwealth are divers: and so many parts of a Monarchical Empire are not to be found in Families, yet the Heads of such Families may notwithstanding exercise a power of Life and Death in great Offences, and also of making War and Peace: And this being for the good of the Family they govern, and by their implyed consents, no body will contradict him in the exercise of this power. But this being matter of fact, does not prove an absolute and unquestionable Right in the Father of such a Family, of doing whatsoever he please, and that no Member of the Family hath power in any case to contradict his will; for it is rational to conceive that this Father of a Family having had an authority over his Children and Servants (born perhaps in his house) from their very Infancy, and if he be a wise and a good man, and hath carried himself as a good Father or Master ought to do toward them, should even by their consents (as knowing none more worthy than himself) retain the exercise of that Authority after they are gown up to be men; in which he cannot be contradicted, without disorder and mischief to the whole Family: So that indeed this submission of the Children and Servants, is by a tacite consent to obey the Father or Master in all things tending to the common good of the Family. But this proves not this absolute despotick power the Author contends for, but onely the most reasonable way of acting for the Families good, and whilst the Father exercises this Authority onely for that end, which when he transgresses, his Right to govern ceases: for if this Author would have but considered the state of some parts of Africa, he should have found, that where the Father will exercise this absolute power, and sell his Children for slaves, the Children make as little scruple (where they are strong enough) to put the same trick upon their Fathers: Nor can they be justly blamed for so doing, until any man can shew me that the Father hath some better Right than meer Custom or Power.
I shall now proceed to the consideration of those other places he produces out of Scripture, for the natural Right of Fathers to be Kings over their Descendants.Patriarcha, p. 16.First, As for the example of Nimrod, that makes against him; for here the Grandson of Ham, who ought to have been a Servant to the Children of Shem and Japhet, interrupting this Paternal Empire, domineers and tyrannizes not onely over his own Family, but the Descendants of the elder Brethren. But Sir Walter Rawleigh (of which opinion the Author himself is) will have him to be Lord over his own Family, by Right of Succession; but to enlarge his Empire against Right, by seizing violently on the Rights of other Lords of Families.
But however, after the confusion of Tongues, the Author will have it revive again; and the distinct Nations thereupon erected, were not confused Multitudes without Heads or Governours, and at liberty to chuse what Governours they pleased; but they were distinct Families which had Fathers for Rulers over them: whereby it plainly appears, that even in this confusion God was careful to preserve the Fatherly Authority, by distributing the diversity of Languages according to the diversity of Families. For so it appears by the Text, Gen. 10. 5. 20. 22.
But these places will not prove what the Author quotes them for, viz. the Monarchical or Kingly power of Fathers: for neither does the Scripture or Josephus mention, that this division of the World by Noah’s Posterity was performed by the Fathers of these Families as absolute Monarchs; but it rather seems that their Children and Descendants followed them as Volunteers, as retaining a Reverence and Affection to their persons for their great age, experience, and care of their Families: Which **Sir Will. Temple’s Essay of Government, p. 67. an ingenious modern Author conceives to be the natural original of all Governments, springing from a tacite deference to the Authority of one single person. And of this opinion is excellent Pufendorf.
And of this kind were those first Kings which Aristotle calls Heroical, whom the People did obey of their own accord, because they deserved well of them, and eitherby teaching them Arts, or by warring for them, or by gathering them together when they were dispersed, or by dividing Lands among them. Secondly, If it were true that these Fathers of Families were so many absolute Kings, yet it quite destroys the Author’s Hypothesis, who will have but one true Heir to Adam, who if he could be known, had a natural Right to be Monarch of the whole world. And though Kings now (Patriarch. p. 19.) are not the natural Parents of their Subjects, yet they all either are, or are to be reputed Heirs to those first Progenitors, who were at first natural Parents of the People, and in their right succeed to the exercise of Supreme Jurisdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers. Whereas we see here no such right of Eldership observed, neither among the Sons of Noah nor their descendants; but every one, as appears from the words of the Text, was an independant Head & Leader of his own Family: by these were the Isles of the Gentiles divided, &c. and by these, viz. the descendants of Shem, were the Nations divided, &c. So likewise the other places he brings concerning the Sons of Ishmael and Esau, do destroy the Authours notion of an Heir to the Authority of the Father, or that any Son is more Lord of his Brethren than another. For all the Sons of Esau and Ishmael are reckon’d as so many independant Princes, or Dukes, and Lords of distinct Territories, without any Superiority in the eldest Son, who ought by the Authours Principle to have been absolute Lord over the rest: And if these could divide themselves into as many distinct Governments as there were Sons, Why might not they do so in infinitum? And then there could never be any common Prince or Monarch set over them all, but by Force or Conquest, or else by Election; either of which destroys the notion of the Natural Right of Eldership. And as for the places he brings to prove it; 1. Gods words to Gain concerning Abel, will not do it, His desires shall be subject unto thee, and thou shalt rule over him. For first, this might be spoken only personally to Cain, and not to give a Right to all Eldest Sons. Secondly, the words do not signifie an absolute Despotick Power, but a ruling or governing by perswasion or fair means; as when a man is ruled, that is, advised by another in his concerns. Then as for the blessing upon Jacob by his Father Isaac, Be Lord over thy Brethren, and let the Sons of thy Mother bow before thee, ’twas never litterally fulfilled. For Jacob was never Lord over Esau, who was a Prince of Mount Seir in Jacob’s life-time, whilst Jacob was at best but Lord of his own family. And as for bowing and other Rights of Superiority, we read [Gen. 33. 3.] that Jacob, at his Interview with his Brother Esau, called him Lord, and bowed seven times to the ground before he came to him. So that this Text is no more than a Prophecy, to shew why the Jews, or descendents of Jacob, should have Right in After-times to rule over the Edomites, or Posterity of Esau. Lastly, this Example makes against the Authour: for it seems it is not the Eldest Son, but whom the Father pleases to appoint, is Heir after his death: Since here Esau looses his Birth right by his own act, but chiefly by his Fathers Will.
Yet if after all, some will urge from the Principles I have laid down, that it seems more to conduce to the happiness and peace of Families, and in that to the great end I have before laid down, the common good of Mankinde, rather to allow this absolute Power of Life and Death to Parents over their Children, and an absolute Subjection to them as long as they live, since Parents do usually take that care to breed up their Children, and to have that tender Affection towards them, that they will seldom take away their Lives, or sell them for Slaves, or keep them so themselves, unless there be very great cause; of which the Father only ought to be Judge, since it being the nature of most Children to be apt to contradict and disobey their Fathers commands, or perhaps resist them, pretending they would kill them, when they only go about to give them due correction; And since most young people hate restraint, and love to be gadding abroad, they having a Right by these Principles to judge when they are able to shift for themselves, would take any slight pretence to run away from their Father assoon as they were grown pretty big, and so perhaps leave their Parents in their old Age, when they had no body to take care of them: whereby nothing but confusion and quarrels would happen in Families, great mischief to the Parents, and often ruine to the Children; who being often opiniatred, and self-will’d, would think better of their own abilities than they really deserved. And therefore divers Nations seeing these great Inconveniencies, did by their Laws leave Parents the Power of Life and Death over their Children.See Patriarcha, p. 38. chap. 2.Such were (those the Author instances in) the Persians, Gauls, and many Nations in the West-Indies: And the Romans even in their Popular State had this Law in force: Which Power of Parents was ratified and amplified by the Laws of the XII Tables, enabling of Parents to sell their Children three times. And the Law of Moses gives full power to the Father to stone his disobedient Son, so it be done in presence of a Magistrate. And yet it did not belong to the Magistrate to inquire and examine the justness of the cause; but it was so ordained, lest the Father should in his Anger suddenly or secretly kill his Son.
To all which I answer, that since this Argument quits the natural Power of a Father by Generation, and only sticks to the acquired one of education, and appeals to the common good of Mankinde; I do acknowledge it is a better than any of the rest. Yet I think it is not true, that Parents in the state of Nature would more seldome abuse their power, than Children would this Natural Liberty I here allow them, of defending and providing for themselves in cases of extreme Danger and Necessity. For this Temptation to do ill is greater on the Fathers side, than that of the Children: For they looking on themselves as having an absolute and unquestionable power over them, and that they may deal with them as they please, are apt to think themselves slighted and disobeyed by their Children, perhaps on very light occasions; and their Passion often rises to that height (as not considering the Follies and Inconsiderateness of Youth) that they may, if Cholerick or Ill-natur’d, strike them with that which may either kill them, or else cripple or maim them; and perhaps out of an immoderate Anger, or being weary of them, murder them on purpose. And Fathers being more apt, as having oftner occasion to be angry with their Children, than their Children with them, it is evident to me, that in the state of Nature (where there is no Magistrate to keep the Father in awe) Fathers will be as apt to kill or maim their Children, as Children their Parents. And if the Fathers (as I said before) are intended for the good and preservation of their Child; and that where their Right ceases, the Childrens Right to preserve themselves takes place: It seems to conduce more to the general good of Mankinde, that the Children should make use of this last refuge of defending themselves, when they cannot otherwise preserve their Lives and Members, than that Fathers should have such an absolute Right to deal with them as they pleased, without any power in the Children to resist or defend themselves. So likewise Fathers being so much older, understand their own advantage better than their Children; and being somtimes more ill-natur’d, and often (by reason of their Age) more covetous than they, may be tempted to sell their Children for Slaves, whereby they may fall into a condition worse than Death itself; and may not the Son then endeavour to run away, or use all lawful means possible to escape so great a misery? Or if the Father will keep his Son as a Slave all the days of his life, without any hopes of ever being free? For when the Father dies, the Son (according to this Authour) is to be Servant to his Eldest Brother, or to whomever else his Father pleased to bequeath him. Is not the case the same? And as for the quiet of the Family, which is supposed to be preserved by the Sons absolute submission, rather than his resistance in any circumstance, I think it would rather increase Dissentions, by encouraging of Fathers to use their Power over their Children, not as Reason, but Drunkenness or Passion may impel them: Whereas this Right of Children in defending their Lives, and not being obliged to give them up at their Fathers pleasure, will rather make Parents act moderately and discreetly towards their Children, when they know they are not obliged to stay or bear with them upon other conditions, than that they may enjoy their Lives in safety, and the ordinary means thereof with some comfort. Not that I give Children any Right, as I said before, to disobey their Parents, or resist them upon every slight occasion; but rather to bear with their Infirmities, as far as it is possible; And to suffer divers Hardships and Inconveniencies from them, rather than to resust or leave them; considering the great obligation they owe them. So that I do not allow this Remedy, but in case of extreme Necessity, yet of which the Sufferer only in the state of Nature can be Judge; since in that state where there is no Umpire, (without both their consents) but God only, every man is Judge when his Life is in danger.
And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission, without any respect to this Right, then it would be his duty to give himself up to be robb’d or kill’d by any one who had the wickedness to attempt it; because himself being innocent, may go to Heaven; and the other being guilty of an intent to rob or murder, may be damned if he be killed. And besides, it would more conduce to the preservation of Mankinde, that but one man should be lost, whereas by resistance they may both perish. Yet I suppose no man is so sottish, as to hold he ought quit his own preservation in these cases; or if he do hold it for discourse sake, I am sure he would not be so mad as to observe it. For this were such an Argument, as to hold, Because some men may abuse that Law of Self-preservation to another mans destruction; Therefore it were unlawful to defend a mans self at all.
As for the Examples of those Nations and Commonwealths who have permitted Fathers to exercise a Despotick Power over their Children; The Law of Nature or right Reason, is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth, which are often different and contrary to each other. Therefore as to the Jewish Law, though I will not say it was contrary to the Law of Nature, yet it was extremely rigorous and severe in all its dispensations, and does not now oblige Christian Commonwealths in this particular, as in divers others, much less in the state of Nature. And as for the Romans, they saw the inconveniencies of this Absolute Power, and retrenched it by degrees, until it came to be no more than now with us, and in most Countreys of Europe. So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children, depending upon the Roman and Jewish Law, may be easily answered from these grounds.
Having, as I hope, clear’d this main point of Paternal Authority, and of Natural Obedience, without giving an extravagant power to Parents on the one hand to abuse their power, or a privilege to Children on the other side to be stubborn or disobedient to their Parents; If then this Paternal Authority extend farther than I have seated it, I shall own my self beholding to any Friend of the Authour’s, or his Opinions, to shew me my errour. But if they cannot, I desire they would consider, whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution, can extend farther than the natural Authority of Fathers, from whom they are supposed to derive it, and on which it is founded. And if it appear that Princes have such Power as our Fathers, then all that the Authour hath writ on this subject signifies just nothing.
Therefore I shall now proceed to examine the rest of his Principles; and shall I hope prove, that (supposing this Fatherly Power as absolute as the Authour fancies) yet that his Divine Absolute Monarchy cannot however be derived from thence.
The Authour seems to think it a Question very easie to be answered. If any one asks what comes of this Right of Fatherhood, in case the Crown, Fatherly power, escheat for want of an Heir, whether it fall to the People, or what else becomes of it?Patriarch. P. 20. To which his Answer is, That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir; for anHeir there is always. If Adam were still living, and now were ready to die, it is certain that there is but one Man, and but one in the world, who is next Heir; although the knowledge who should be that one Man be quite lost.
So that this fine Notion signifies nothing now, for Adam being dead, and his right Heir not to be known, it is all one as if he had none; since, for ought I know to the contrary, the Authors Footman may be the Man.Directions for Obedience, p. 69. But to help this, the Author hath found out a couple of Expedients, (such as they be;) The first is, That an Usurper of this Power, where the knowledge of the right Heir is lost, being in by possession, is to be taken and reputed for the true Heir, and is to be obeyed by them as their Father.Patriarch. p. 21. And if this will not do, he gives us another, and tells us, The Government in this case is not devolved upon the multitude; but the Kingly power escheats in such cases to the Fathers and independent Heads of Families: For every Kingdom is resolved into those parts of which it was first made.
Each of which we will examine in their turn. To begin with the former, let us see if it be so easie a thing as the Authour makes it, to know who was Adam’s, or any Monarch’s right Heir (setting the Municipal Laws of the Country aside;) so that the People cannot be excused of wilful Ignorance or Negligence, if they loose this knowledg. Where by the way I observe, that as easie a thing as it was to know who was Adam’s right Heir, and upon whom by the Laws of God and Nature the Crown is to descend, upon the Death of the Monarch; yet he no where positively answers this important Question: For sometimes he is to claim by descent, as in this instance of the Heir of Adam; sometimes by his Father’s last Will, as in the case of Noah’s Sons, according as the Examples out of Scripture do best serve his turn. So that I believe he did not either negligently or ignorantly avoid settling this point, because he might still have a hole left to creep out at, or else because he could do it no better than the Instances he brings would permit.
He says, [Direct. for Obedience, pag. 68.] A Son is always to live under the subjection of his Father, unless by Gods immediate appointment, or by the Grant or Death of his Father, he become himself possess’d of that Power to which he was subject.
By which words he seems to imply, that this Power is to descend to the Eldest Son, when his Father dies. So likewise in this Treatise we are now upon, [P. 12.] he says, Civil Power not only in general is by Divine Institution, but even the assignment of it specifically to the eldest Parents. By which words I suppose he means, (if any thing) eldest Sons; though I know not why he should limit it to Parents: for methinks it were very hard the eldest Son should forfeit his Right, in case he were not a Parent when his Father died. So likewise he tells us, [P. 19.] That these Heirs of this Fatherly Power, are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Father. Yet tells us not plainly which of the Sons is Heir; only says a little before, That when God made choice of any special Person to be King, he always intended that the Issue also should have the benefit thereof. Though this general Rule was false in the case of Saul, whose Children were disinherited by God to establish the Crown upon David and his Line. So uncertain things are Instances drawn from Scripture without any due consideration of the Reason of them.
But to return to the subject: I grant that it is not impossible but from the command of a Father of a Family, who hath divers other Families under him, there may spring a Civil Government, though the Fatherly Authority doth properly regard the Education of the Children, and the Masterly Power to encrease Riches: And though it is not changed barely by the great number of Children or Servants; yet the difference between them is not so wide, that there can be no transition from one to the other, unless a new Right of Soveraign Majesty be produced by God. For if a Father of a Family being provided of a great stock of Children and Slaves, will by way of Manumission permit them to enjoy their own Goods and Families apart, on that condition that they submit to his Government for their common Security; I do not see what is wanting to the making him a Prince, if he have strength sufficient to perform the ends of a Commonwealth. But he dying, and nominating a Successour, if his Sons will consent to him, and confirm his Will, they may if they please; if not, all of them, as in an Interregnum, may appoint what sort of Government they will have for the future. Nor will the Law of Nature be violated, if the youngest Son, having most Votes, should be elected in his Fathers stead.
I should be glad any man could demonstrate to me from the Laws of God and Nature, that Adam’s eldest Son was by the Right of Eldership to be Lord over his Brethren, without their Election or Consent, when their Father died. Indeed the Jewish Law allow’d a preheminence to the Elder Brother, and that he should have a double portion, and be reverenced by all his Brethren, exprest by this Phrase of, Let thy Mothers Sons bow before thee: But this proves not that as Eldest Son he had therefore a Right of exercising all that Authority, upon the Death of their Father, over his Brethren, which his Father had before: Neither had Jacob any such Right over Esau, though he sold his Birthright, or the eldest or any other Son of Jacob any such Right over his Brethren; for certainly God would not have abrogated it if they had. So that Jacob’s Authority as a Father, ended with his Life: and for any Despotick Propriety or Dominion over them, I have already proved that the Father has none in the state of Nature. Yet admitting he had, the Children notwithstanding would have been free at his Death. For Servitude being a mere personal Duty, due only to the person of him that acquired this Slave; when the person dies to whom he owed this subjection, the Slave is free in the state of Nature, unless the Lord of this Slave transferr’d his Right in him to another in his life-time; a mans Person not being like a brute beast, to be seiz’d by whoever can lay hold of him; he hath no longer any obligation to serve his Children, (unless he will make himself their Slave of his own accord.) But if it be answered, that the Father may bequeath this Right of Dominion over his Children at his Death, by his Will, to which of his Sons he pleased; and that he that is so constituted by their Father, is Lord over all the rest of his Brethren; and endeavour to prove this from Genesis the 9. vers. 25, 26, 27, where Noah cursing Canaan, because Ham his Father had derided his nakedness, says, He shall be a Servant unto his Brethren: I desire you would take notice, that this Answer quite gives up the Natural Right of the Heir, or Eldest Son. 2. I suppose this rather was a Prediction or Curse to be fulfilled in Canaan’s Posterity, than upon himself.Observat. on Grotius, p. 49, 50. For first, this Right was not given, as it ought to have been, over the Person of Ham the Offender, whom this Authour allows to have had an equal share with his Brethren in the division of the World, and so to have been in all Prerogatives equal with them. Neither doth he give this Right to one of them, but to both alike; saying both of Shem and Japhet, that Canaan should be their Servant: which could not be meant of his person, since that could not be divided by them both, who were like to live at so great a distance; therefore it can onely signifie, that his Descendants should be slaves to the others. And several Commentators upon this place, do suppose that Moses related this Curse of Noah upon Ham, onely to shew the Jews the Right they had to make slaves of the Canaanites, because they were descended from Canaan. And as for the Right of bequeathing slaves by Testament, it is much disputed whether by the Law of Nature Testaments have any force in this case; those that have written of it, being much divided about it in the state of Nature, since all Propriety in that state being but Occupancy or Possession, which ceases with the life of the Occupant. Therefore since a Testament commences onely from the Testators death, who as soon as he died, lost his Right in the Goods bequeathed, since the dead can have no interest in any thing; neither can the Legatee sustain the person of the Testator, since this Right ceased before that of the Legatees could begin. So that it seems to me at present, that the power of bequeathing either the persons of men or goods, was but a consequence of an absolute Propriety in things which arises from Compact in a Commonwealth, as I shall hereafter prove.
Therefore out of this State, a Will cannot bind the persons of the Children or Servants so bequeathed: And for this cause we find Abraham, Gen. 24. v. 2, 3. binding his Servant that ruled over his House, with an Oath not to take a Wife for his Son of the Daughters of the Land. And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt; because they doubted whether they could oblige them to do it by their Testament. But as for the Right of bequeathing Crowns or Kingdoms by Testament, as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution, and others become so by Custom; yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature, but proceeds purely from a continued Custom of the Kingdom, or Civil Law thereof; else why had not Henry VIII, or Edward VI, power to limit or bequeath the Crown to whom they pleased, as well as William the Conquerour? And to look into other Countries, what now renders Women uncapable of succeeding to the Crown of France, yet capable of inheriting that of England, Spain, and divers other Kingdoms of Europe, but the Customs or particular Constitutions of the Estates of these Kingdoms? which no Will or Testament can alter. What else hinders the Grand Seignior, that he cannot disinherit his eldest Son if he survive him, but the Custom of the Ottoman Empire?Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. And what is this Custom, but (as the Author himself acknowledges in the case of England) the Commom Law of the Country, which is said to be Common Custom? Thus to protect the Customs which the Vulgar shall chuse, is to protect the Common Laws of England. So that it was the Will of the People, and not the Prince alone, that made this a Law:Freeholders Inquest. p. 62. for if this Law of the Succession of the Crown depended upon his Will, then if he be an absolute Monarch, that (when sufficiently declared) being the onely Law, might alter it when he would and so he might bequeath the Crown to whom he pleased. But every one that understands the present Laws of Descent of the Crown of France, or the manner of Succession in the Ottoman Empire, knows that in the King of France or Grand Seignior (as absolute as they are) should bequeath their Kingdoms to any other than the right Heir, this Will would signifie nothing, and no body would obey this Successor of their appointing. And if any man think to evade this, by saying, That the Succession of the Crown is a Fundamental Law of the Government, and that a Prince may be Absolute, and yet not have a power to alter that as he may every thing else; I would ask him who made this a Fundamental Law at first, whether the King then in being, or the King with the Consent of the People, upon the first institution of the Government? If the King made it alone, since he is supposed to have made it at first for the good of the People, of which he is the Judge (and is supposed in Law never to die) why then is not he as competent a Judge of what is good for the People now, as a King that lived a thousand years agone was what was fit for the People then? and consequently hath as much Right of altering the Succession for the Peoples benefit, as he that established it at first, since every Law may be altered by the same Power that made it? But if he say it is a Fundamental Law, because long custom hath made it so, then it is apparent such a Law hath its force from the Consent of the People at first or since, Custom being nothing else. Or lastly, if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution, then it can neither be altered without their Consent; and so consequently no Princes Testament is good as to that, farther than the People or their Representatives give their assent thereunto: And the same Law holds in the Father of a Family, since this Author will have no difference between him and a King, but onely secundum Magis & Minus.
If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament, let us return again to that of Descent, and see if that will prove a better foundation to build this natural Right of Princes upon. For my part, I think that it is not onely impossible to know who was Adam’s right Heir of his Fatherly Power now, after five or six thousand years, but might likewise be as uncertain, as soon as ever the breath was out of his body: For supposing Eve survived him, why should not her natural Right of governing the Children which she her self brought forth (and which out of Wedlock would have belonged to her) revive and take place before any Right of her eldest Son; to whom upon this ground she must have become subject, if she would continue part of the Family or natural Commonwealth, (which she could not avoid, there being none but her Children or Grandchildren in the world) and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth? So that for ought I see, the Mother of the Family hath the best Right to the Government in the state of Nature, after the Husbands death, upon the Authors own grounds: For if the Commandment of Honour thy Father and thy Mother, signifie more than bare Reverence and Respect, as appears by the Apostles Exposition of this Commandment, Ephes. 6. v. 1. Children, obey your Parents in the Lord, which he makes the same with Honour thy Father and thy Mother; then this Obedience which was due to the Father, belongs likewise to her when his power ceases.
But passing over this difficulty, and allowing this Fatherly Authority to descend to Adam’s next Heir, it might have been a great Question, who this next Heir was, supposing Cain to have been disinherited for the murder of Abel, and to have gone away and built a City, and set up a Government by himself? Yet let us suppose Abel left a Son behind him, who survived Adam his Grandfather; which he might very well do, and yet the Scripture be silent in it, since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews, and therefore says little of his other Children but by the by. I would ask the Author or any man else, who was Adam’s Heir after his death, whether this Son of Abel or Seth; (whom we will suppose likewise to have survived his Father?) If he say that Adam might leave it to Seth by Will, this is gratis dictum; and it lies upon him to prove that Adam made a Will; or if he did, how it could bind his true Heir. If he say that Seth ought to succeed and govern his Brethren, as being nearer in bloud to Adam, what reason was there that the eldest Son’s son should be punished and lose his Birthright for that which was not his fault, but misfortune, viz. that his Father was murdered before his Grandfather died? Nor could Seth claim, being elder and consequently wiser than his Nephew: for his Nephew must be older, since Seth was not born until after Abel was killed. But if it be affirmed, that the eldest Son of Abel ought to succeed and represent his Father; I ask, by what Law? If it be replied, that it is to be supposed that Adam, if he had made a Will, would rather have had his Grandson succeed him than his younger Son; this is gratis dictum, and were to affirm that the Right of governing is bequeathable; which I have already confuted. But if it be said, that this Son of Abels should succeed because he represents his Father; I would ask them, by what Law this Right of Representation should take place before propinquity of Bloud? or how could the Fathers expectation onely confer a Right to his Son, in that which the Father was never possessed of? So that there being equal Reasons on both sides, and neither Law nor Precedent in the case, there remained no way to decide this Controversie, but either Combate, or the Judgment or Arbitration of the rest of Adam’s Descendants. I suppose the Author will not allow the former sufficient to confer a good Title, since the best Title might have the worst success in that Appeal to the Sword. If he allows the latter, then this hereditary Monarchy of Adam became Elective, and depended upon the Will of all the Heads of the Families which descended from Adam: (For it is not likely in so doubtful and material a point as who should govern, any of them would lose the priviledge of giving his Vote.) And if so, this Right of Succession depended upon their Wills, which might give it to which of the two Competitors they liked best; and this being once done, might for quietness pass into a Custom or Law for the future. And that this Right of Representation, where the Son dies before his Father, cannot be decided by the Law of Nature or Reason alone, is evident, in that divers Nations or distinct Tribes of People have had different Customs about it, and have established this Right of Succession divers ways: For though the Roman or Civil Law allow of this Right of Representation, yet the Germans and all Nations descended from them, did not admit it until very lately; which shews there is nothing but Custom in the case.See Grotius de J. B. Li. cap. 7. And upon this pretence the League in France admitted the Cardinal of Bourbon King, by the name of Charles the X, before his Nephew the King of Navar, his elder Brothers Son, who died before him. And that this difficulty who shall succeed, the Uncle or the Nephew, hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom, (which is but the continued Will of the People) may appear by those different Judgments that have been in all Ages made on this matter: for when there arose a Controversie between Areus, Son of Acrotatus, eldest Son to Cleomenes King of Lacedæmon, and Cleomenes the second Son of the said Cleomenes, the Senate adjudged the Royalty for Areus against Clomenes.Mariani, l. 13. c. 3. But in Spain, after the death of Alphonso the V, King of Castile, the States of Spain acknowledged his younger Son Sancho to be King, and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son, though he had the Crown left him by his Grandfathers Will.Vicerius in Vita Henry 7. And when Charles the II, King of Sicily died, and left a Grandson behind him by his eldest Son, surnamed Martel, and a younger Son called Robert; the matter being referred to Pope Clement V, he gave judgment for Robert the younger Son of Charles; who was thereupon proclaimed King of Sicily. And it seems Glanvil, who was Lord Chief Justice under Henry II, makes it a great Question who should be preferred to the Crown, the Uncle or the Nephew. So that it was no strange thing for King John to make himself King before his Nephew Arthur, since it was a moot point among the Lawyers of that Age, who ought to succeed. And where no Power could intervene, it was decided by War, and sometimes single Combats, which Historians mention to have been waged between Uncles and Nephews contending for the Principality; and not onely in this case, but in all others where the Succession of the Empire is not settled by such Laws or Customs, it lies continually liable to be disputed between the Sons or Grandsons of the last Prince, nor can ever be decided but by the Sword: Of which there is an Example in one of the greatest and most absolute Monarchies in the world, viz. the Empire of the Mogul, where for want of settling the Succession at first by a positive Law, and making the Raias,See Bernier’s Travels, 1 part. and Tavernier Lib. Sir Tho. Row’s Embassie, Purchas part. Terrey’s Relation of Indostan.Omrahs, or great Lords give their consent to it, and swear to observe it, and so have made and ascertained it as an inviolable Custom (as it is in the Ottoman Empire;) now upon the death of an Emperour, though he declare by his Will who shall be his Successor, yet the Grandees (who are so many petty Princes, and lead the People under their Command after them as they please) do not think themselves at all obliged to observe it, much less to set the Crown upon the eldest Sons head; but every man is for that Son of the last Mogul whom they like best, that is, him they conceive will suit best with their interests and designes: Nor do the Brothers think themselves at all obliged to yield to their eldest Brother, whom they are assured will put them to death, or make them perpetual Prisoners. So that every one provides for himself, and makes his Party as strong as he can by Gifts and Promises among the Grandees, against his Fathers death. Nay, lately this prize hath been played among the Sons even in their Fathers lifetime, as in the case of the late Sha-Jehan, who lived to see all his Sons killed, and his person made a prisoner by his youngest Son Aureng Zebe, who is for ought I know, Mogul at this day. And if any man thinks this onely an Evil peculiar to this Empire, and not to others, let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies, and he shall find them managed much after the same rate. Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first, but even those that have been better constituted, and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years. And of this, Scotland hath been a famous Example; where after the death of King Alexander III, and his Grandaughter Margaret of Norway, two or three several Competitors claimed a Right to succeed: But omitting others, it was agreed that it lay between John Baylliol, and Robert Bruce Earl of Carick; both of them drawing their Discent from David Earl of Huntingdon, Great Uncle to the last King (in whom they all agreed the Right to the Crown would have been, had he survived.) Baylliol claimed, as eldest Son to Dornagilla, Grandaughter to Margaret the eldest Daughter of the said Earl David. Robert Bruce claimed, as eldest Son of Isabel the second Daughter of the said David. So that if Baylliol alledged his Discent from the eldest Daughter, Bruce was not behind-hand; but pleaded, though it was true he was descended but from the second Daughter, yet he being a Grandson, and a degree neerer, ought to succeed; (whereas Baylliol was but great Grandson to Earl David:) And though Dornagilla, Baylliol’s Mother, was in the same degree with himself, yet he being a man, ought to be preferred before a woman in the same Line; and that if the Laws of Scotland would have given it to Dornagilla, if it had been an ordinary Inheritance, yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances. In short, this Dispute did so divide the Nobility into Factions, and puzzle the Estates of the Kingdom, that not being able to decide it, they and all the Competitors agreed to refer the Controversie to Edward I. King of England, one of the wisest and most powerful Princes of his time; who upon long advice and debate with twelve of the learnedest men of both Kingdoms, at last adjudged the Crown to Baylliol; or, as the Scotch Historians relate, because he would do him Homage for it: which, Bruce being of a higher spirit, refused. Yet this did not put an end to this great Controversie; for though Baylliol was thereupon admitted King, yet falling out not long after with King Edward, to whom he owed all his greatness, and having the worst of it, the Nobility and States of Scotland revived Bruce’s Title, and declared him King; who after a long War with England, enjoy’d the Crown quietly at last, and left it to his Issue, whose Posterity (in our present King) enjoy it to this day.
To this I shall adde one Example more from Portugal within these hundred years. King Henry called the Cardinal dying without Issue, there was a great Controversie who should succeed; (for he died suddenly just as the States of the Kingdom were assembled to settle the Succession, for he declared himself unable to decide it:) So that he onely left by his Will twelve Governours of the Kingdom, who should govern during the interregnum, but that the Crown should descend to him that should appear to them to have the best Title. Four eminent Competitors put in their claims: 1. Antonio called the Bastard, who nevertheless pretended that he was lawful Son to Don Lewis, second Brother to Henry the last King: So that he had no more to do but to prove himself Legitimate. 2. Alexander Duke of Parma, who claimed as Grandson to Mary, eldest Daughter to Don Duarte, youngest Brother to the last King Henry, and Son to King Emanuel. 3. The Duke of Braganza, who claimed as Son to Katherine, second Daughter of the said Don Duarte, yet alledged his Title to be best, because he was the next of the Bloud-Royal who was a Native of Portugal (as the Heir of the Crown, as he pretended, ought to be, by a Fundamental Law of that Kingdom:) yet it seems that Law was not then so well known, or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met. 4. Philip the second, King of Spain, who claimed as Son to Isabella Daughter of Emanuel King of Portugal, and so a degree nearer than the rest to Henry the last King. The States and Governours differing, the States were dissolved; and during their recess, the Governours not agreeing among themselves, the King of Spain raised an Army, and entering Portugal, seiz’d the City of Lisbon, and consequently all the rest of the Kingdom submitted to him, and so made himself King by force. And yet we have seen in his Grandson’s time, the Estates of Portugal declare this Title void, and the Crown setled in the Posterity of the Duke of Braganza, who still enjoy it by vertue of this Fundamental Law. And that this Fundamental Law could not be altered but by the consent of the Cortes or States, appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy. And how much even Kings themselves have attributed to the Authority of their Estates, appears by the League made between Philip the Long King of France, and David King of Scots; wherein this Condition was exprest, That if there should happen any difference about the Succession in either of these Realms, he of the two Kings which remained alive, should not suffer any to place himself on the Throne, but him who should have the Judgment of the Estates of his side; and then he should with all his power oppose him who would after this contest for the Crown. So that our Author, without cause, lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown; when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason, determine which was he: And our Author should have done well to have set down some certain Rules, how the People might be assured, without a positive Law before made, that they acknowledge the right Heir, and not an Usurper to his prejudice.
CHAP. II.
Observations on the Directions for Obedience in doubtful times, and other places of his Patriarcha, and other Treatises.
BUT since this Author, rather than the disposal of a Crown shall fall to the decision of the People, or States of the Kingdom, will give an Usurper a good Right to it against all persons but him that hath the Right; we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times, and how far men are bound in Conscience to obey an Usurper, whilst he that hath Right is kept out by him. First, he takes it for granted, that all those that so eagerly strive for an original Power to be in the People, do with one accord acknowledge that originally the Supream Power was in the Fatherhood,Vid. Mezeray Abregé Chron. An. 1318. and that the first Kings were Fathers of Families; which if granted, yet will not prove that this proceeded from that natural perpetual subjection which Children owe their Parents; or that because they are Parents, they are therefore Lords and Kings over them: So that this being the Groundwork of whatever he says in this Discourse, p. 67. if this be faulty (as I hope I have proved it to be) all that he builds upon this foundation, signifies nothing. Secondly, he assumes that this Paternal power cannot be lost; it may be transferr’d or usurped, but never lost, or ceaseth — But as the power of the Father may be lawfully transferred or aliened, so it may be unjustly usurped; and in Usurpation the Title of the Usurper is before and better than the Title of any other than him that had a former Right: for he hath a possession by the permissive Will of God, which permission how long it will last, no man ordinarily knows; every man is to preserve his own life for the service of God, and of his King or Father: and is so far to obey an Usurper, as may tend not onely to the preservation of his King and Father, but sometimes even of the Usurper himself, when probably he may be thereby preserved to the correction or mercy of his true Superiour. And though by humane Law a long Prescription may take away a Right, yet divine Right never dies, nor can be lost or taken away. The same he says p. 70. That in Grants and Gifts that have their original from God or Nature (as the power of the Father hath) no inferiour power of man can limit nor make any Prescription against them. Upon this ground is built that Maxime, That Nullum tempus occurrit Regi, no time bars a King. Which second assumption is likewise false: for I have already proved that all Fatherly power ceases with the life of the Father, as Motherly power with the life of the Mother; or else in the state of Nature a man must be left like other Cattle, to be pickt up and markt by whoever can first seize him. And secondly, that it is false that this power and authority of a Father can be transferred to, or usurped by another; or that the Son owes the person to whom his Father transfers or sells him, any other duty than as his Assignee performs the Office of a Father towards him. Much less that an Usurper acquires any Right over the person of the Son in the state of Nature; for otherwise if a Thief should procure strength enough to drive a Master of a separate Family out of doors, and so this Rogue could subdue the whole House, and set up for Lord and Master of it, that then the Wife, and Children, and Servants, were immediately bound to obey him, because he hath a possession, and is in by the permissive Will of God, and so hath a better Right than any body else, but the Master himself. It is true indeed, in this case every Member of this Family is bound to preserve his own life, and may yield a passive Obedience to this Rogue, for fear of his power, and as far as he thinks it will conduce to his preservation; but I do not see any obligation he hath from Conscience or Reason, to obey this Robber farther than as he cannot help it, but may take the first opportunity to drive him out of the House, and call in his true Father or Master; unless he hath made him any promise to be quiet and not assault him, for then he is in the same state with a Prisoner upon parol: for all Writers on this subject, hold that nothing but a lawful War can give any man a Right over the person of another, unless he become his Servant by some voluntary act of his own; or otherwise the Slaves taken by the Argter-Pyrates were in a sad case, for they were bound in Conscience never to escape, without the consent of their Masters. Nor upon the Authors principles, is there any difference between a Father of a Family, in the state of Nature, and a Prince, since he tells us more than once, that a Kingdom is but a large Family: And consequently no difference between an Usurper of the Fatherly power, and that of a Monarch; onely the Rogue that usurped the one, could call himself but Master of the Family; but the other would stile himself King, Emperour, or Protector. Nor will the place of St. Paul, Rom. 13. v. 1. oblige any man in this case: for though it is said, that St. Paul wrote this Epistle, Nero an Usurper being Emperour of Rome; I deny that Nero was an Usurper: for though it is true that Claudius left a Son, yet since by the Roman Law a man might make whom he pleased his Son by Adoption, which Son so adopted was in all respects looked upon as the true Heir of the adopting Father, and Nero was so adopted by Claudius; and so being elder than his own Son Germanicus,Tacit Annal. 12. c. 25, 26. would succeed before him. And besides, the Adoption being confirmed and passed into a Law by the Senate, Nero was as truly Claudius’s Son by the Roman Law, as Britannicus himself. So that an Usurper hath at first no better Right than another: For Gods permitting a wicked act to be done, as a Banditi or Pyrate to take a man Prisoner, does not therefore confer on this Thief or Pyrate any Right over a mans person. So that the instance the Author gives, p. 73. will not hold, That Usurpers have such a qualified Right to govern, as is in Thieves who have stolen Goods, and during the time they are possessed of them, have a Title in Law against all others but the true Owners; and so such Usurpers, to divers intents and purposes, may be obeyed: For first, this is no Law of Nature or Reason, but onely a positive Law of England; where, for the avoiding of perpetual violence and strife, and for the better securing of Property, they have made possession even in Thieves to confer a Temporary Right against all but the true Proprietor: Whereas in the state of Nature, a Thief by invading another mans Goods unjustly, and taking them away by violence, becomes an Enemy to all Mankind; and so may lawfully be killed, or have what he hath so possessed taken from him by any other. Secondly, Neither does the parallel between the possession of Goods, and that of a Kingdom, hold: for Goods may be possessed by the first Occupant; but Government, which is an Authority over the person of a man can never be seized, since a man without his own act or consent can never lawfully fall into the power or possession of another (as I have already proved:) So that I know not to what purpose this Treatise of the Authors could serve, but to make all men obliged in Conscience to yield not onely a passive but an active Obedience to all the Commands of Cromwel and the Rump, not onely in things lawful and necessary, but indifferent ones too, p. 74. in which consists all Obedience, since all the Authority, even of lawful Powers, extends onely to indifferent things; all other actions being sufficiently setled by the Law of God or Nature.
But the Author perceiving this difficulty, endeavours to extricate himself, by saying, p. 75. That though granting in things indifferent, an Usurper may be obeyed as well as a lawful Prince, yet that it does not therefore follow that there is as much Obedience due to an usurped Power as a lawful; but that herein lieth a main difference between them, that some things are indifferent for a lawful Superiour, which are not indifferent but unlawful for an Usurper to enjoyn. Usurpation is the resisting and taking away the Power from him who had such a former Right to govern the Usurper, as cannot lawfully be taken away. So that it cannot be just for an Usurper to take advantage of his own unlawful act, or create himself a Title by continuation of his own Injustice. And if it can never be an act indifferent for the Usurper to disobey his lawful Soveraign, much less can it be indifferent for him to command another to do that to which he hath no Right himself. It is onely then a matter indifferent for an Usurper to command another when the actions enjoyned are such as the lawful Superiour is commanded by the Law of God to provide for the benefit of his Subjects, by the same or the like restrictions of such indifferent things; and it is to be presumed, if he had not been hindered, would have commanded the same or the like Laws.
Let us now see how far this distinction will serve his turn. I should in the first place be glad to know what he means by these words, lawful Soveraign or Superiour: If he means such a Superiour who was particularly appointed by God, God never since David and Solomon expresly appointed a King in any Nation. Secondly, If one who was elected by the People, or whose possession is confirmed by their acknowledgement publickly declared, and so passed into a Law; this were to set up what he so much abhors, an elective King, who must claim by Law. If by lawful, he means such a one who upon a bare possession, hath by his own power alone made a Law declaring himself to be the lawful Superiour; this Law is unlawful for him to make, or for the Subjects to obey: And if it be such a one to whom possession gave a Right (as he will have it) being in possession by the permissive Will of God, though at first an Usurper; Why hath not this second Usurper as good a Title to take the Government from the former, as he or his Ancestors had to take it from him that had it before? But indeed Occupancy onely confers a Right in the state of Nature to such things as are meerly necessary for a mans subsistence; but Government is an Office of Trust and Power, and which the Usurper might very well have lived without: And why should a bare possession of this, though of three or four hundred years, confer a better Right than that of a year or two? for this last possession seems, according to the Authors principles, to be the better Title. For he says, a little before, p. 69. That the first Usurper hath the best Title, being now in by the permissive Will of God: And if so, may not the last Usurper use the like Argument, since he tells us, p. 67. That this last Usurper hath a better Title than any other, except him who had a former Right; for he hath a possession by the permissive Will of God: which permissionhow long it may endure, no man ordinarily knows? Now which is best, a Right which once a man onely had by the permissive Will of God, but is now ended (God having otherwise declared himself,) or a present possession which he hath by the same permissive Will; which when it will have an end, no body knows? But if he answers, as he does, p. 69. That this Usurper is onely then to be obeyed and reputed by the Subjects for the true Heir, where he hath continued so long that the knowledge of the right Heir is lost by all the Subjects; for no man hath an infallible certainty, but only a moral knowledge, which is no other than a probable Perswasion grounded on a peaceable Possession; which is a Warrant for Subjection to Parents and Governours: I know not what the Author means here by true Heir, and as little when he will have this knowledge to be lost. If he means by right Heir, the Son or descendant of the first Usurper, I should be glad to know how he that had no Right himself, could confera Title upon another; or by what Law his Son had a Right to succeed him? If by the consent of the People, this were to grant that which he before denies as at all necessary to any Princes Title. If because he or his Descendants have an uninterrupted long possession, the difficulty still remains, how this long possession can confer a Right, for the Reasons already given. But if it be said that the Heir of this Usurper hath a better Right than any body else, as having possession, and that it were destructive to the Peace of the Commonwealth to put him out, after so long an enjoyment of the Crown: it’s true, this were a good Argument not to make any alteration in the Government, as it is setled; but they must likewise consider, that the same may be as well made use of by the last Usurper and his Party, since he having now the possession in as full a manner as he that had it before, cannot perhaps be put out of it, without involving the Nation in a tedious bloudy War. It is likewise as uncertain, when the knowledge of this right Heir of the first Usurper shall be said to be lost by all the Subjects. If he means personal knowledge, when all the people that could remember the Prince that was turned out are dead, and none left alive that certainly know who is his next Heir, the Right of this true Heir will quickly be lost in one Generation: but if he means a traditional moral knowledge (as he seems to do) then this can never be lost as long as there is any Authentick or Historical Tradition of the Descent of this Heir; which Tradition may be continued for a thousand years together: during all which time, the Princes that succeed being Heirs of such Usurpers, can never require a perfect Right to their Crowns, the Author holding it an undoubted truth, p. 60. That though Prescription may take away a common Right, yet divine Right (or that to a Crown) never dies, or can be taken away thereby. And upon this ground the common Maxime is built, Nullum tempus occurrit Regi. So that as long as this kind of moral knowledge of this right Heir can be had from any Authentick History or Record, the Prince in being hath onely a Right from Possession, and can never create himself a Title by the continuation of his own Injustice, or command any of his Subjects to fight against this true Heir, since they are to obey this Usurper, (p.72.) or his Heirs, onely in such things as tend to their own preservation, and not to the destruction of the true Governour. By which Principle, the Author at once renders the Titles of all the Crowns in Europe disputable, and all Allegiance uncertain and questionable by their Subjects; as I shall shew in several instances, as I shall prove from Histories of unquestionable credit. I shall begin with our own Country, England. If therefore, as the Author will have it, p. 69. the Usurper is onely then to be taken for the true Heir, when the knowledge of the right Heir is lost by all the Subjects; it will follow, that all the Kings and Queens that reigned in England until the coming in of K. James, were Usurpers: for the Right of Succession to the Crown of England, could not be obtained by Conquest alone. (And I suppose this Authour does not allow it to be bequeathable by Will) as long as the right Heir was in being, and could be known from authentick Histories and Traditions. Now the Right of the Crown by Descent belonging, after the death of Edward the Confessor, to Edgar Atheling his Cousen; he dying without Issue, the Right fell to Mawd his Sister, who married Malcolm III,Buchanan de Rebus Scoticis, lib. 7. King of Scotland; and though her Daughter Mawd was married to Henry the first, King of England, from whom all our Kings are descended, yet the Right was not in her, but in Edgar King of Scotland, her Brother, from whom all the Kings of Scotland to King James were descended. It is true, the Kings of Scotland were too wise ever to set up this Title, because they knew the Norman Race were quietly possessed of the Throne, and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy, Nobility, and People: yet did not this absolve the People, who might very well retain the traditional knowledge of this right Heir; For divine Right never dies, nor can be lost or taken away, or barr’d by Prescription. So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants, were absolutely void and unlawful, by our Authors principles; and so likewise all Wars made against the King of Scotland in person, were absolutely sinful and unlawful, since (according to this Authors principle) the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour. So by the same Principle, all Laws made in France about the Succession of the Crown, are absolutely void: and it would be a mortal sin in the French Nation to resist any King of England of this Line, if he should make War in person upon the French King then in being, since according to the ancient Laws of Descent in that Kingdom, he is true Heir of the Crown of France. Nor can the French here plead ignorance, since there is scarce a Peasant there but knows our King stiles himself King of France, and quarters the Arms of that Kingdom; and so ought to understand the justness of his Title.Mariana de Rebus, Hisp. lib. 13. cap. 7. So likewise in Spain, all the Kings of Castile are likewise by this Rule Usurpers, since the time of Sancho III, who succeeded to the Crown after the death of Alphonso V his Father, who had bequeathed it to Alphonso and Ferdinand de la Cerda, his Grandsons by Ferdinand his eldest Son, who died before him: Yet notwithstanding this Testament, and their Right, as representing their Father the elder Brother, Sancho their Uncle was admitted as King by the Estates of Castile; and his Descendants hold that Kingdom by no better Right to this day. Nor is this a thing stale or forgotten; for the Dukes of Medina Cæli, on whom (by Marriage of the Heiress of the House de la Cerda) the right descends, do constantly put in their Claim upon the death of every King of Spain; and the answer is, The place is full. Nor can those of this Author’s opinion plead possession, or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants: for it will be replied out of this Author, p. 70. That the right Heir having the Fatherly Power in him, and so having his Authority from God, no inferiour Power can make any Law of Prescription against him, and Nullum tempus ocurrit Regi: And this were to make the Crown elective and disposable according to the Will of the Estates or People. I shall now return to the Author’s distinction, and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent, signifies nothing: for suppose that an Usurper, as several have been in England and other Kingdoms, either dares not, or thinks it not for his interest to alter the form of the Government, but is contented for his own safety to govern upon the same Terms his Predecessors did, and so will not raise any Money, or make new Laws without the consent of the Estates, whom he summons for that purpose; Now they must either obey his Writs of Summons, or they must not: if they do not obey them, he will perhaps be encouraged to take their Goods by force (perhaps by a standing Army which he may have ready in pay) and then say it is long of their own stubbornness, who would not give it him freely when they might have done it; and they shall likewise be without these good Laws the Author supposes he may make: but if they meet, he will not let them sit, unless they first by some Oath or Recognition acknowledge his Title to be good, and own him as their lawful Prince. Now what shall they do in this case? they must either lose their Liberties, and alter the form of the Government, or acknowledge him to the prejudice of their lawful Prince. But if the Laws are once made, and they appear evidently for the good of the Commonwealth, they then are no longer indifferent, since all private Interests are to give place to the publick Good of the Commonwealth; since in the instance before given of the Father of a Family’s being driven out of doors by a Robber, no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall, and he would take upon him to give orders for the quenching or securing it from falling; for they did this not to own his Authority, but from the obligation they owe to their Father or Master, who would have done the same, had he been at home. So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth, is not to acknowledge these usurped Powers as lawful. I do less understand the force of another distinction he makes use of, p. 155. That an Usurper is so far to be obeyed, as may tend to the preservation of a mans King and Father, nay sometimes even to the preservation of the Usurper himself; when probably he may thereby be reserved to the correction or mercy of his true Superiour. For how Obedience to an Usurper can tend to the preservation of the lawful Prince, I understand not. And as for the other instance of preserving the person of the Usurper for the mercy or correction of the true Superiour, it had been a very good pretence for Obedience to Cromwel and the Rump; nay, to fight for them, since this was but to preserve them for his Majesties mercy or correction another time, though their Power might have continued until now; since they had a Possession by the permissive Will of God, which how long it would endure, no body could tell. Such untoward things are Arguments drawn from false Principles, that they flie in the faces of those that make use of them, and will either reduce them to absurdities, or else prove weapons against themselves.
But I shall now come to his last Refuge, when he can no longer evade, but that by the Peoples ignorance of Adam’s right Heir, or of the Heirs to the last Prince, the supreme Power is devolved upon the People, who may chuse what kind of Government they please, (Patriarch. p. 21.) This he denies, saying, [That in such cases the Kingly Power escheats to the Fathers or independent Heads of Families. The same Answer he gives to this Objection in his Anarchy of a limited Monarchy, p. 272. where he replies (very pleasantly) That no King can die without an Heir, as long as there is one man living in the world; it may be the Heir may be unknown to the People, but that is no fault in Nature, but the negligence of the People whom it concerns.] So that it seems the next Heir being often not to be known, any man, when the Prince dies, may step into the Throne; and if he have Power enough, is next Heir: for a King can never die without an Heir, as long as any one man is left alive in the world; and who can disprove him that he is not the man? So that the power he hath given to his Masters of Families to chuse an Heir, or one to ease them of their Fatherly Power, signifies nothing: For this Usurper that can first seize it, may be right Heir to Adam for ought any body knows. And certainly having Possession, which is the permissive Will of God, he hath a better Right than any other, as we have often heard before: And are told farther in the Anarchy of a limited Monarchy, p. 273. That if the true Heir of the Crown come to be dispossessed, in such cases the Subjects Obedience to the Fatherly Power must go along and wait upon Gods Providence; who onely hath Right to give and take away Kingdoms, and thereby adopt Subjects into the Obedience of another Fatherly Power. So that Man is not onely a Creature who is his Goods that can first catch him, but, according to this Author, is in a worse condition than Brutes: for whereas if a Dog be taken up by a Stranger, and a Collar clapt about his neck, and so led away, it is left to Jowler’s discretion how far he will obey his new Master; and as he may either stay with him, if he likes his Quarters, & finds himself well used, so surely he may without any sin, knaw his halter (nay bite the fingers of this Usurper of his Liberty) and run away. But poor Man does not onely fall to the first Occupant, whom he may not either obey or disobey, as he finds it most conduce to his interest and preservation, but is peg’d down to an absolute Obedience, and obliged in Conscience to obey this Usurper (let him use him well or ill) with the same respect and duty as if he were his Father: Which I think God was a better friend to Mankind than ever to intend. But to return to the subject from whence we digressed, our Author, for fear he should seem by admission of a Power in Fathers of Families to chuse a Head or Prince over them, and to have granted it to them as the whole People, he distinguishes, saying,Anarchy of limited Monarchy, p. 272.It does not escheat to the whole People, but onely to the supream Heads and Fathers of Families; not as they are the People, but quatenus Fathers of the People, over whom they have a supream Power devolved unto them after the death of their Soveraign. Chief Fathers in Scripture are accounted all the People, as all the Children of Israel, as all the Congregation, as the Text plainly expounds it self, 2 Chron. 1. 2. where Solomon speaks to all Israel, that is, to the Captains, the Judges, and to every Governour, the chief of the Fathers; and so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel, 1 King. 8. 1. and 2 Chron. 5. 2.
By all which it appears, that the Author allows in this case the Government escheats to part, but not to all the People, or whole multitude of Men, Women and Children taken together, to chuse what Government they please. And indeed in this sence there was never any Democracy or Government of the People in nature: for though a Democracy may be defined to be that kind of Government where the supream Power is in a Council or Assembly consisting of all the Citizens: And although it does not less concern the Women and Children in that kind of Government to be happier than in others, yet who ever thought it a new sort of Commonwealth, and not a perfect Democracy, though Women, Children, and Slaves were excluded the publick Councils and Assemblies? And therefore if it be esteemed a perfect Democracy (and was so at Athens, which all must grant to have been so) where onely Free men, or at their own dispose, and such who were supposed at first to have by their meeting together instituted this Government, which is likewise continued by those who have succeeded into their Places and Rights: I see no reason why these should not be looked upon as representing the whole promiscuous body of the People, to whom the Power devolves upon the want of a Successour. For it is likely that Commonwealths were first instituted by Fathers of Families, having Wives, Children, and Slaves under their Domestick Government; whom nevertheles they would neither equal with themselves, by admitting them to a Vote in the Government, neither yet would abdicate their power over them. But then the Author urges,Anarchy of a limited Monarchy, p. 270, 271.If Infants and Children be concluded by the Votes of their Parents, this destroys the whole Cause: for if it be allowed that the Acts of Parents bind their Children, then farewel the Doctrine of the natural freedom of Mankind. Where subjection of Children to Parents is natural, there can be no natural freedom: and if any reply, that all Children shall not be bound by their Parents consents, but onely those that are under age; it must be considered, that in Nature there is no Nonage. If a man be not born free, she doth not assigne him any other time when he shall attain his freedom: or if she did, then Children attaining that age, should be discharged of their Parents contract. So that in conclusion, if it be imagined that the People were but once free from subjection by Nature, it will prove a meer impossibility ever lawfully to introduce any kind of Government whatsoever, without apparent wrong to a multitude of People. It is fartherobservable, that ordinarily Children and Servants are a far greater number than Parents and Masters; and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject to, is most unnatural, and in effect to give the Children the government over their Parents.
To which Objection I reply, 1. That the Author is here mistaken, and that there is really an Age of Nonage in nature (as hath been already proved) in which though the Child be indeed free, yet (by reason of his own want of strength and discretion to judge what is necessary for his own good and preservation) is obliged to submit himself to his Parents judgment in all things conducing to that end. 2. That Children, neither Infants or others, are obliged to the Acts or Agreements of their Ancestors in the state of Nature, farther than it conduces to their benefit or preservation. So that if a married man out of a Commonwealth, should sell or yield himself to a Master of a Family for a Slave, upon condition that his Master should provide him all the necessaries of life (without which such a grant or sale of a mans self cannot be supposed good) certainly if he had then no Children, this could not bind his Issue that was to be born, so that they should be perpetual Slaves to all Generations; since natural Equity, and the favour of Liberty, will interpret, that the Aliment which the Master affords the Children of this Slave, are understood to be contained under that provision which the Master is obliged to make for him and his, by vertue of their Contract. Or admit that there was no express provision made in the Conditions for the maintenance of the Children, yet in this case, I see no Right the Master can claim in the persons of these Children, longer than ’till he hath satisfied himself out of their labour for the charges he hath been at in feeding and providing for them; which may very well be by twenty five years of age (as I have already proved.) So that about that time I see no reason why such Children may not lawfully shift for themselves, if they do not like their Master. And if any Friend of theirs undertake to satisfie their Master before that time, I think they are free, though he should refuse to accept it, since it was lawfully tendered. Indeed for Slaves taken in a just War, there may be some appearance of reason, why their Children should also be Slaves, since the Parents accepted of their lives upon that condition that they should live in perpetual servitude, and their Master undertook to maintain them upon no other consideration: So that these Children do implicitely owe their lives to their Master, since he might by the Laws of War have slain their Parents, and so they could never have been born. But I will not assert, that even this slavery is perpetual in relation to the Children: But as for Subjects, though they are not directly or expresly bound by the Acts or Consents of their Ancestors, who first instituted the Government, yet indirectly or consequentially they are obliged to stand to what their Ancestors have done: For since, as I said before, no man will deny to accept of the Promise or Conditions of his Ancestor, if it be for his advantage, and since the Institution of Government was for the common good of mankind in general; so this or that particular Government being for the preservation and security of every Subject that enjoys the priviledges thereof, no man can believe that the Posterity of those that first instituted this Government, will go about to undo what their Ancestors have done so much for their benefit, and reduce all things to the state of Nature again. So that as long as they submit to, and enjoy the benefits of the Government which was first establisht by the consent of their Forefathers, they are supposed to yield a tacite Assent to those Compacts which they long since made, and implicitely become Subjects to that Government under which they were born. So that those that first instituted Government in any Country, have no necessity expresly to promise or engage for the Subjection and Obedience of their Children, or those who should succeed them. And if any private persons will not own this Government, and so take upon to resist it, pretending they are not obliged by the Compacts of their Forefathers to obey it as established by them; such persons, if they enter into a state of War, or make Confederacies to that end, may justly be looked upon as Enemies to the Government, and punished accordingly, since they will go about to disturb the common Peace and Tranquility of the Nation for their own private Discontents or Advantage: for the People being once entred into Society, can never be supposed to alter their Judgments all at once without very good cause, much less to die, though the particular persons that constituted it do: for as a River is still esteemed the same as long as the water runs in the same Channel, though the same individual water never stays in the same place, but one part still pushes out another; so those are not less to be esteemed in the politick capacity (of a Civil State) the same people, than those by whom the Commonwealth was at first founded. And though it is true that Governments may have been at first begun by Fathers of Families and other Freemen, who first submitted their Wills to that of one person or more, and so the Women, Children, and Servants, who had had no Votes in its Institution, might be supposed as represented by their Husbands, Fathers, and Masters: And since they enjoy all the common benefits of the Commonwealth, and are likewise capable of enjoying all those priviledges and advantages which are proper and peculiar to Free Subjects, whenever they come to be at their own disposal, and that they owe their breeding up and preservation to its protection; they may well be lookt upon as under an higher Obligation in Conscience and Gratitude to this Government, than Strangers of another Country, who onely staying there for a time to pursue their own Occasions, and having no Right to the same priviledges and advantages of the Commonwealth, do onely owe a passive obedience to its Laws.
But to let you see more plainly, that upon such a devolution of the Government as the Author grants, not onely the Masters of Families, as Fathers, ought to have Votes, but all others that are at their own dispose; I will ask any of his opinion, what he thinks of a single man living in a house alone, or with a Wife, without either Children or Servants, or perhaps boarding in another mans house for their money, why they should not have Votes as well as those that are his independant Fathers and Masters? I can see no reason, nor I believe they neither. So though the Author by the words Supream and Independant Heads of Families, seems to exclude all Sons from having Votes whilst their Fathers are alive, although they are married, and have separated into distinct Families; yet since I have proved that neither Paternal Authority nor Filial Subjection is absolute or perpetual in the state of Nature (into which the Commonwealth is by the death of the Prince now supposed to be resolved) and if it were otherwise, yet unless they will void all those Laws and Constitutions that have been before settled both for descent of Inheritances, and the distinguishing of Property. So that if these Laws stand in force during this interregnum (unless they will fall to absolute confusion) these Sons so making divers Families, and having Estates distinct from their Fathers, ought likewise to have Votes in the Government, upon the Authours own principles, since the Laws of the Country have set them free from all Paternal subjection, more than what the Rules of Piety and Gratitude oblige them to. And as for such Sons as (though of mature age, yet) remain as Servants in their Fathers Families, and so are under a greater subjection than those that are separated from it; I see no reason why they may not appoint their Father, as him they could best trust, to vote for them, and represent them in the choice of a Governour; and then they are as much obliged as any man can be by the act of a person whom he hath impowered to act for him, or as these Fathers of Families would be by Representatives of their own chusing: it being morally impossible, if this devolution of the Government should happen in a populous Country, for all the Authors independent Heads or Fathers of Families, ever to meet in Person to chuse a King; these being vastly numerous, and divided from each other at great distances.Anarchy of a mixt Monarch. p. 269 So that all the Author’s Objections against a mixt Popular Election will prove as strong against this of Fathers alone: For how, except by some secret miraculous instinct, should they all meet at one time and place? What one Head of a Family or Company, less than the whole Body of these Fathers of the People, can have power to appoint either time or place of Election, where they are all free and independant by Nature? and without a lawful Summons, it is most unjust to binde those that are absent. So neither can the whole Body of the Fathers of Families summon it self: One man is sick, another is lame, a third is aged, and a fourth (though a Father of a Family, may be under years of discretion, or not in his right senses) and many more may have business of their own which they cannot leave, to run two or three hundred miles up to the chief City to chuse a King. So that either the People may elect, or else his Fathers of Families cannot, for the same reasons. And if the major part of these Fathers should agree to chuse Representatives, how can this Agreement of the major part bind the minor that did not consent, since according to the Authors principles,Patriarcha, pag. 44. Where the Arguments against Elections by a major part, are proposed at large. in Assemblies that take their original from the Law of Nature, no one man or multitude can give away the Right of another? So that though the Author seems to have been so good-natured as to have given these independent Fathers of Families a Power in this case of Escheat to chuse a Governour, yet all this signifies nothing, since they can never all meet or agree to chuse Representatives: They are still like to be his Slaves who can make a Party strong enough to seize the Government, and usurp an Authority over them: Whom yet they must obey, since he either is or represents the right Heir of Adam; and so no body hath a better Right than himself, who is in by the permissive Will of God; which how long it will last, no body can tell. And God does but adopt Subjects into the obedience of another Fatherly Power, or else they must fall into a down-right Anarchy, and every Father of a Family may set up for an absolute Prince. But to return whither we have digressed; for I have said this, onely to shew that this Authors principles (as well as those of others) contradict themselves in this subject; and either these Fathers of Families are the People, and consequently cannot, according to this Authour, ever meet or agree to chuse a Prince; or else the whole People may as well. But since it may be objected, that it does not serve to find out truth, or settle the Question in hand, barely to recriminate and shew the same flaws in his Principles as he finds in those of others;Patriarcha, p. 41. let us see if his Objections against Bellarmine and Suarez, and all those who place Supream Power in the People, be such terrible things, that the poor Jesuits are absolutely run down in this Dispute. He therefore first asks, If their meaning be, that there is but one and the same Power in all the People of the World, so that no Power can be granted, except all the men upon the Earth meet and agree to chuse a Governour? To which Suarez answers, That it is scarce possible, nor yet expedient, that all the men in the world should be gathered together into one Community. It is likelier that either never, or for a very short time, this Power was in this manner in the whole Multitude of men collected together; but a little after the Creation men began to be divided into several Commonwealths, and this distinct Power was in each of them. To which our Author replies, That this Answer of scarce possible, nor yet expedient, &c. begets a new doubt how this distinct Power comes to each particular Community, when God gave it to the whole Multitude onely, and not to any particular Assembly. Can they shew or prove, that ever the whole Multitude met, and divided this Power which God gave them in gross, by breaking it into parcels, and by appointing a distinct Power to each Commonwealth? Without such a Compact, I cannot see (according to their own Principles) how there can be an Election of a Magistrate in any Commonwealth, but a meer Usurpation upon the Priviledge of the World. If any think that particular Multitudes at their own discretion had power to divide themselves into several Commonwealths, those that think so, have neither Reason nor Proof for so thinking: and thereby a Gap is opened for every petty factious Multitude to make more Commonwealths than there be Families in the world.
In which Dispute I conceive the Jesuit hath gone too far, in asserting an undivided Soveraignty in the whole Multitude collected together before any Civil Government instituted; That being onely the Compact or Agreement of those that entred into it, and binding none else at first. So likewise this is a meer Chimera of the Author’s, that Adam or Noah were absolute Monarchs and Heirs of the World; so that no man could withdraw themselves from the Obedience of their right Heirs, without being guilty of Rebellion. Whereas I have already proved, that all the Sons of Noah, and their Descendants, were independant Governours of their Families, without any subordination to the eldest Son or Heir. And if every Brother had a Right to set up an Independant Family or Principality distinct from that of the eldest, I would fain know what became of this absolute Right of Adam or Noah, and by what authority this undivided Soveraignty which God had conferred on Noah, was thus crumbled into parcels. If by Gods appointment, then it seems God did not countenance this notion of the right Heir of the world: If they did it of their own heads, then all the ancient Patriarchs, or first Peoplers of the world, were guilty of Rebellion and Usurpation against their elder Brother and his Descendants. But if the Author’s Friends think he hath the advantage, because I grant that the World was peopled after the Flood under the conduct or government of distinct Heads or Fathers of Families; this does not grant any natural Right in those Heads of Families to have an absolute power over their Descendants, since perhaps God divided the Language of the World by so many Tribes or Families, for the better conservation of the mutual Love and Concord of neer Relations, since men would more readily obey their Ancestor or common Father, than a meer stranger; or for other reasons best known to his infinite Wisdom. So that there was a necessity that those of the same Stock should upon the dispersion march off together, since none else understood one another. Yet the Scripture does not tell us whether in this division and plantation of the World, the Headship of these Families was according to eldership of birth, or whether they elected the fittest man of their Tribe or Family to be their Leader: And if the eldest were the man, it was not from any Right over them, but either of reverence to his Wisdom, or to avoid the Dissentions that might arise by other kind of choice on Eldership; though indeed it confers no Right of it self, yet is often preferred as a kind of natural Lot. So that every one of these Heads of Families being independant from each other, they could never agree upon a Ruler over them, but by Compact among themselves: And if so, he was their Leader that all the rest liked and agreed upon. So that there needed no Compact of all the People of the world, since every Father of a Family being independant upon any man else, had a power to confer his Authority of governing himself and his Family upon whom he pleased: which Power, whether, and how far it was from God, and what kind of Authority it was, we shall examine hereafter. So that though I grant all Government might be at first instituted by Fathers of Families, yet this does not prove any despotick Power that such Fathers had over their Children or Descendants; and so consequently could confer no such Authority over them. So that all the rest of the Authors Queries about the distinct power of the Multitude vanish, since though there never was any Government where all the promiscuous Rabble of Women and Children had Votes, as being not capable of it, yet it does not for all that prove all legal. Civil Government does not owe his Original to the consent of the People, since the Fathers of Families, or Freemen at their own dispose, were really and indeed all the People that needed to have Votes; since Women, as being concluded by their Husbands, and being commonly unfit for civil business, and Children in their Fathers Families being under the notion of Servants, and without any Property in Goods or Land, had no reason to have Votes in the Institution of the Government.
So likewise all the Authors Objections and Cavils, p. 44. how the greater part of a Multitude could overrule the rest in the state of Nature, signifie nothing; since if many men meet to chuse a Governour, the first Question must be, whether the Votes of the major part shall not conclude the rest; and then all that agree that they shall, are bound by their own consent; and those that will not agree to it, are still in the state of Nature toward all the rest, and are free to go and set up a Government by themselves, that they all can agree to Nemine Contradicente. And if they disturb those that have agreed, that they will be concluded by the majority, they may be lawfully used as Enemies. And for Proxies or Representatives, though the beginnings of most Kingdoms and Commonwealths, like the head of Nilus, are hard to be traced up to their Heads or Fountains, and no man can positively tell the manner of their beginning; yet if they began from some small quantity of men collected into one Army or City, there needed no Proxies at all, since every man might give his Vote himself. But since the Author puts me to name any Commonwealth out of History, where the Multitude, or so much as the greatest part of it ever consented, either by Voice or Proxies, to the election of a Prince; I will name him two Commonwealths: The first was Rome, where all the People or Freemen consented to the election of Romulus, being formerly proposed. See Dionysius Halicarnasseus, lib. 3. And the second shall be that of Venice, where though it is true the whole promiscuous Rabble did not chuse a Prince, yet all the Masters of Families, or Freemen at their own dispose, had a Vote in the choice of the first Duke and Senate; which plainly proves some Governments to have had their beginning by the consent of the People. And though some Governments have begun by Conquest, yet since those Conquerours could never perform this without men over which they were not always born Monarchs, it must necessarily follow, that those Souldiers or Volunteers had no obligation to serve them, but from their own agreements with their General, and for those advantages he proposed to them in the share of those Conquests they should make.Read likewise our Historians of the manner of Will the Conquerors coming over, and you will finde those that helped him in that expedition were Volunteers, to whom he promised a share of his Conquests; which he after made good to them. Thus were the Goths, Vandals, and our Saxon Kingdoms erected by such Generals of Armies, who not being Kings at home, nor able to subsist there, were forced to seek their fortunes abroad; which when they had obtained, they could have no farther Right over the men they brought with them, than what sprung from their mutual Compacts and Consents. And as for Proxies, as there was no need of them in the instituting of those Commonwealths we read of, since taking their Original from all the People of one City or Army, they might easily give their Votes themselves; but where the People or Masters of Families are more numerous and dispersed than can well meet all together, it is impossible, upon the Authors Concession of an Escheat of the Crown, that ever a new Monarch can be chosen without their making Representatives. As for what he says about the silent Acceptation or tacite Consent (or non-contradiction) of the People, no man will say that it alone confers a Right, where there was none before; as in the case of Conquerours or Usurpers, whom perhaps People dare not speak against: So likewise a tacite Consent to a Government, whether Paternal or Civil, justly instituted, does confer a Right, as I have already granted, and shall now farther shew in answer to the Authors Objections. The Author urges farther, That if Children under years of discretion, and Servants, are not absolutely and in Conscience obliged to submit to the Votes of their Fathers and Masters in the choice of the Government, farther than they receive benefit and advantage by it; then every man is at liberty that does not like the Government,Anarchy of a mixt Monarchy, p. 268.to be of what Kingdom he pleases: and so every petty Company hath a Right to make a Kingdom by it self; and not onely every City, but every Village, and every Family, nay, and every particular man would have a liberty to chuse himself to be his own King if he pleased; and he were a madman, that being by Nature free, would chuse any man but himself to be his Governour; and so no man would be tyed to obey the Government farther than he found it for his interest and advantage, and consequently would think he might lawfully resist it whenever he found it impose upon him what he did not like, or was contrary to his interest.
In answer to which, I grant, first, That every Possessor of a propriety in Land or Goods in any Government, is not onely bound to obey, but likewise to maintain it; since those that first instituted the Government, did likewise tye themselves and all those that should at any time possess those Lands or Goods, to the maintenance of the Government which they had establisht: And it is just and reasonable, that those that claim under such first possessors, should, if they like to enjoy the Lands or Goods, perform the Conditions annexed to them; since men may by their own private Deeds, much more by a common consent, change their Estates with what Conditions they please; which those that afterwards come to enjoy the same under their Title, are certainly bound in Law and Conscience to make good. Secondly, As for all others who possessing no share in the Lands or Goods of a Kingdom, yet enjoy the common benefits of the Government, I conceive they are likewise bound to obey and maintain it as first instituted, for the reasons before given. So on the other side, if they do not like the Government they live under, the world is wide enough, and they may remove themselves elsewhere: for I cannot think that the positive Laws of any Government do oblige any man in Conscience (who is not a slave by his own act or fault) never to go out of the Country where he was born, or can oblige him to return again if he once go out of it, or can hinder him from becoming a Subject to another Prince or Commonwealth, unless he have taken an Oath of Allegiance to the Prince where he was born, and then he is tyed by his Oath not to act any thing contrary thereunto: And if one man may do this, why not more, and so on to an indefinite number? But if any Lawyer tells me there is a native Allegiance due by the Laws of divers Countries precedent to any Oath, and that in some Countries (as anciently in England, and in Russia at this day) there are Laws that no man shall travel out of the Kingdom without leave; I suppose these are but positive Laws, and as such bind onely to a submission to the punishment as to forfeiture of Estate, or the like, but do not bind the Conscience to observe them farther than as it is convinced the thing commanded is more than indifferent in its own nature, and conduces to the good of Mankind in general, or of the whole Commonwealth in particular. Nor indeed was this notion of a native Allegiance known to our Saxon Ancestors, since they counted no man an absolute Subject until he was sworn in the Tourn or Court of Frankpledge, and was entred into a decenary or Tything. And if it be objected, that upon these Terms the major part of a people may go away and leave the Government without defence; that is not likely, nor so much as to be supposed, as long as the Country continues habitable, and the Government tolerable for the Subjects to live under: which if it prove otherwise, I see no reason that God should have ordained any Country for a common Bridewel, where men should be obliged in Conscience to drudge, be oppressed, and ill-used all days of their lives without remedy. And as for the other part of the bad consequences the Author insists will follow, if this natural freedom of Mankind be allow’d, for which you may consult his Anarchy of a mixt Monarchy, where you will see them at large, p. 268, 269. Every petty Company hath a Right to make a Kingdom by it self, &c. I shall answer him as briefly as I can. The Author discourses after that rate, that one would think, if it were not for his Principle of Patriarchal Power, men could not subsist, his being the foundation of all Civil Government and Property. As for the first absurdity that will follow upon the supposal of the Peoples power, That any man might be his own King; I would ask the Author, What if any man, being weary of the world, will withdraw into some Desert? I think he hath then no other Governour than Adam had: Nor is this unlawful; or else all the ancient Hermits, who in times of persecution retired into Deserts, sinn’d in so doing. But for the absurdities that follow the supposal of a natural state of Freedom, As that every particular City or Family may chuse what Government they please, if they do not like what is already established; I have already granted, that where a Commonwealth is established, and men are come out of the state of Nature, and constitute one Politick Body, all the Members of it are obliged in Conscience to maintain this Government according to its first Institution. But if it be to be constituted anew, as upon his Escheat of the Crown among the Fathers of Families, Who are to chuse one? who must take upon him this Fatherly Power over them? The inconvenience will be the same upon his own Principles: For all Cities, Towns, and Families consting of so many independant Heads of Families, if the major part of an Assembly cannot conclude the minor (as this Author supposes) then though all the Fathers of Families in a Nation should agree in the choice of a King, and but those of one Town or Family dissent, these Dissenters, if they do not like the Prince the rest have elected, may certainly (if they are able) divide from them, and set up a distinct Government of their own; since all these Fathers of Families being alike free and independant, can in the state of Nature claim no Superiority over each other. So that the Author, from his own Principles, falls into the same inconveniencies which he finds fault with in those of others; whereas indeed there is no absurdity in this Supposition.
I shall now consider in the last place that part of his Hypothesis (Patriarch. p. 21.) where he supposes, That all such prime Heads and Fathers of Families have power to consent in the uniting or conferring their Fatherly Right of Soveraign Authority on whom they please; and he that is so elected, claims not his Power as a Donative from the People, but as being substituted properly by God, from whom he receives his Royal Charter of an universal Father, though testified by the ministry of the Heads of the People. I have already pull’d up the foundations of this Notion in the beginning of these Observations, by shewing that God hath not ordain’d or conferred any such Power on any particular Father or other Relation, and therefore neither on all the Fathers of Nations or Countries taken together, they not having any Ownership or Property in their Childrens persons, but a Right to govern and direct them for their benefit and preservation; which Fatherly Right cannot be transferred to another, much less survive his person, as I have already proved. Yet to render this as clear as may be, granting him what he contends for, that this Fatherly Power may be transferred to another; I should be glad to know, though the Monarch so nominated by them may have a supreme Power over all their Children and Servants, yet whence does he derive this Right of commanding absolutely over the Persons and Estates of these Fathers of Families themselves: Not from succession from Adam; for his right Heir cannot now be known: nor from their transferring the power of governing their own persons upon him; for then this Right commences from their own Act or Election, and not from the Fatherly power supposed to be at first conferred on Adam. And if they transfer onely their Fatherly or Masterly Authority upon this new Monarch, then he hath onely a Right to govern their Children and Servants, the Persons and Estates of these Fathers not being included in this Grant. And again, if this Election in the state of Nature could confer a Right, then this Monarch must owe his Power to these Fathers of Families; and so these being (as I have already proved) the representative Body of the People, he must receive his Authority as a Donative from them; which he will by no means admit of. But since he will have him properly and immediately substituted by God, from whom he receives his Power of an universal Father, then these Fathers of Families do not create or constitute the Monarch, but onely are Instruments or Ministers to put him in possession: and if so, it is the possession of the Crown, and not their Election, that gives him this Right. But (as the Author words it) He receives from God thisCharter of an universal Father. Upon which Principle, see not to what purpose this Nomination or Election serves; for if any body during this interregnum, can by force or fraud slip into the Throne, he is more properly Gods Substitute, and to be obeyed accordingly, than if he had come in by their Nomination or Election, since he is in possession by the immediate Will of God, and declared by the success. So that these Fathers are in a fine case, after all their Priviledge to elect, since whoever can usurp this Authority over them, must immediately be their Father and Master, whether they ever give their consents or not: For this Author says, Paternal Power cannot be lost; it may be either transferred or usurped, but never lost.Obedience to Government, p. 66, 67. But I have sufficiently exposed the absurdity of this notion before, in what I have said about Obedience to Usurpers, and shall lay it more open when I come to shew in what sence Princes owe their Authority to God.
Therefore, since these Fathers of Families had in the state of Nature an absolute Power of governing themselves, I shall now enquire in the next place, Whether they may not pass over this Power upon some certain Conditions, and reserving some Rights and Priviledges to themselves and Children, upon the making of the Compact with their new Prince. Secondly, How the person so elected owes his Authority to them, and in what sense to God. As to the first, I see no reason but that these Fathers of Families may, if their number be not too great, agree to govern all alike together; and that whoever is a Master of a distinct Family, or a single man at his own dispose, and not a Servant, shall have a Vote in the Government, and that the major part of the Votes shall conclude all the rest, and then it will be as perfect a Democracy as ever was; since, as I have granted already, there was never such a Government where all Women and Children promiscuously had Votes with their Husbands, Fathers, or Brothers. So that if ever there was any such thing as a Democracy in the world, this would be one. Or lastly, if they may all govern themselves, they may as well agree to chuse a certain number of their own Body to represent them and to meet in a common Council or Assembly, and to govern them either for life or yearly, as they shall make the Conditions with them; and then this Government will become an Aristocracy, where a few of those that are reputed the best do govern, though by a Power derived from these Fathers of Families. And if they may bestow this Power upon more than one under certain Conditions, I see no reason why they may not do the same, if they confer it upon one man after the same manner, either by making a Compact with him upon his accepting the Government, how much of this Power he shall exercise, and how much they will reserve to themselves. If they agree that he shall have no more but a Presidency in their Council in time of Peace, and shall not have any power more than that, unless in time of War; he then is the Mouth of the Senate in time of Peace, and their General in War. And of this kind was the Lacedemonian King: And in modern times the ancient Dukes of Venice, when they went out to War: And so are those Caciques that the Indians in the Caribbeé Islands and Brasile chuse to be their Leaders in War, but in Peace have little or no power. So likewise these Masters of Families or Freemen agreeing with him that they would chuse for their Prince, what Power he should exercise or they would confer upon him; as suppose that he should not condemn any of them to death, unless many of the same condition with himself find him guilty; or that he should not make any Laws or levie Taxes for the publick Charges of the Commonwealth, but what they propose to him; and that he swear for himself and his Posterity to observe these Conditions: There will then be produced a Limited Kingdom, consisting of a Prince as the Head of all Civil Power, and of an Aristocratical or Democratical Council, according as that Assembly consists either of the whole, or but of the People. And that such a Government is no Solœcism in Politicks, I shall prove farther when I come to make some Observations upon this Authors Treatise of the Anarchy of a mixt Monarchy. Nor can any man imagine from the Priviledges of the Nobility and People that are found to have been almost the same in all these Northern Kingdoms of Europe, as ancient as the Government, could ever have owed their Original to any other Cause than the Original Constitution of the Government. And if these Fathers of Families may limit the power they confer upon their new Prince, upon this Escheat of the Soveraign Power, and retain some of it to themselves; they might do the same upon the first institution of the Government, either as when so many Masters of Families who had before lived apart and without any dependance upon each other, did agree in the state of Nature to erect a Civil Government among them; or else when a Colony or Army of men was led out by some particular Captains or Leaders for the conquest of a foreign Country, which when conquered and settled, every free Souldier in the Army would certainly have as good a Vote in the creating of their General to be their King, as their Captain or Colonel; since they all were at first but Volunteers, and followed these Captains not from any Civil Authority they had over them, but by their own consent. But since the Author will by all means have it, that these Fathers of Families must needs transfer their power upon one man absolutely, who must be endued with all this power, without any reservation; I shall now give you his best Arguments for this absolute Monarchy, and try whether they are unanswerable or not.
Patriarch. p. 49. His first reason for it, is built upon Bellarmine’s Concession, That God when he made all mankind of one man, did seem openly to signifie, that he rather approved the government of one man than of many. This had been somewhat of an Argument, if Adam’s power had been purely Monarchical over Eve and all his Children and Descendants, as it was not; but if it had, Gods bare Approbation lays no Obligation for all mankind to practise it now, any more than it is a good Argument to say, that it is now not onely lawful, but necessary for men to marry their Sisters, because God approved of that way of propagation of mankind at first. Secondly, God declared his Will, when he endued not onely Men, but all Creatures with a natural Propensity to Monarchy; neither can it be doubted but a natural Propensity is to be referred to God, who is the Author of Nature. What he means by a Propensity in all Creatures to Monarchy, I understand not; neither know I any Monarchy among Brutes, besides that of the stronger over the weaker; and in that Authors sence, the master-Buck in a Herd of Deer, the master-Bull in that of Cows, and the Bell-weather of the Flock, are all of them so many Monarchs, endued with Fatherly Authority over the Herd; or else, which is as good, are Usurpers of that Authority, and so the Herd are all bound in Conscience to submit to them. As for the Monarchical Government of Bees, whether under a King or Queen, I doubt it would pose even those Vertuosi who have glass-Hives, to prove their Government an absolute Monarchy both in War and Peace; and that none of the Princes of the Bloud or other Bee-grandees have any share in it; or that never a Bee in the Hive dare place any Honey in the Combs, or eat a drop of what the hath gathered her self, without the Queens orders. But if the Government of Bees be Monarchical, and that were a good Argument for Monarchy, then that of Emmets might be so for a Democracy, since most Naturalists not being able to distinguish any Kings or Princes in the Ant-hill, do suppose them to be a Commonwealth. But Raillery apart, I would be glad to be fully satisfied whether Mankind naturally incline to be governed by an absolute Monarchy. It is true, the greatest part of the Eastern Governments in the world are absolute Monarchs; but the Author cannot bring this as an Argument of any Propensity, according to his principles: For if all of them were founded upon the Right of Fatherhood, or else the Usurpation of that Right; this proves rather a natural Obligation to this kind of Government, than a Propensity: for an Obligation cannot be drawn from a bare Propensity; Since then a man would have an Obligation to drink Wine, because as soon as he tasts it he hath a Propensity to it, and perhaps may take so much of it until he be drunk, and then sick, and so this Propensity may turn to a surfeit. So some Nations (as Rome for example) having taken a Cup too much of Monarchy, this Surfeit produced an absolute aversion, hatred, and a propensity to the contrary extream. But as the Eastern Nations have inclined to an Absolute, so have the Western either to Commonwealths or limited Kingdoms. Witness the Grecians of old, and the modern Kingdoms of the Gothick Model; as also those petty Governments of several Nations in America. His third Reason is, That God confirmed Monarchy to be the best Government, in that Commonweal which he instituted among the Hebrews; which was not Aristocratical (as Calvin saith) but plainly Monarchical. If the Author here means before they desired a King, it is true that God himself was their King, and govern’d them upon extraordinary occasions, by men divinely assisted or inspired; and such were the Judges whom God raised up to deliver them from the slavery and oppression of their Neighbours; and being looked upon as having a great portion of the Spirit of God, did likewise judge the People, that is, decide difficult Cases by way of Appeal in time of peace. But that the Government was purely Aristocratical, this Author himself confesses even when he denies it: He tells us, p. 50. at the time when Scripture saith, There was no King in Israel, but that every man did that which was right in his own eyes, even then the Israelites were under the Kingly Government of the Fathers of particular Families: for in the consultation for providing Wives for the Benjamites, we find the Elders of the Congregation bare the onely sway Judg. 21. 16. Now what is an Aristocracy, if this be not? viz. an Assembly of the Elders or chief of the Fathers (that is, the best men) meeting, consulting and resolving of publick business. What power these Fathers of Families had at home, is not declared, whether it was independent, or else did submit to the government of its own Tribe: But that it was Aristocratical, is apparent, if Josephus understood any thing of the History or Antiquities of his own Country, which he undertook expresly to write of: For Antiq. lib. 4. cap. he brings in Samuel speaking to this effect to the People (desiring a King) An Aristocracy is the best Government, neither should you require any other sort of Government. But as for the Kings which God gave them afterwards, there is nothing to be drawn from thence for this Authors advantage; for he himself tells us, there is no use to be made of it:Vid. His Observations upon Milton, p. 20. For speaking against Milton’s sence of the words in Deut. 17. 14. he says, Can the foretelling or the forewarning the Israelites of a wanton wicked desire oftheirs (i. e. of a King) which God himself condemned, be an Argument that God gave or granted them a Right to do such a wicked thing? Or can the narration and reproving of a future Fact, be a donation and approving of a present Right? or the permission of a sin be made a commission for the doing of it? So that it seems sometimes when it makes against the Author’s sence, God is so far from approving Kingly Government, that it is a sin for the People so much as to desire it. But it is likewise as great a Question, whether after Kingly Government was established, it was likewise absolute, so that the King might put any body to death, right or wrong: For we find, 1 Sam. 14. 45. the People rescued Jonathan out of the hands of his Father Saul, and would not permit him to be put to death for his breach of the rash Vow which Saul had made; nor is it imputed to the People, that is, the Army, for a sin. Neither could Ahab take away Naboth’s Vineyard and his Life together, but by colour of Law, and a legal Tryal. Neither could King Zedekiah save Jeremy the Prophet from the power of the Princes who cast him into the Dungeon: for Jer. 38. v. 5. Zedekiah said, Behold, he is in your hand; for the King is not he that can do any thing against you. His fourth reason is, that God in Scripture mentions not, nor takes notice of any other Government than Monarchical. This is but a Negative Argument at best, the Scriptures not being written to teach us Politicks, but to declare God’s Will, and to shew us his merciful and gracious dealing with the Jews, notwithstanding all their backslidings, and rebellions against his Commandments. His fifth reason is, that Aristotle saith in his Ethicks, chap. 11. That Monarchy is the best form of Government, and a Popular Estate the worst: The words are, τȣτὤν [Editor: illegible character] β[Editor: illegible character]λτίςη βασιλεία, χειϱίςη [Editor: illegible character] τιμοϰϱατία. Which, though true, does not enforce any Obligation to the one more than the other: for though a man be obliged to his own preservation, yet he himself is the onely Judge of the means; and if he erre, and use the worst means for the best, they are not in fault if they acted as well as they could, and to the best of their knowledge, for that end. Neither does it follow, that there are no more sorts of Government than these two to be chosen. Nor is it any better Argument, that the world for a long time knew no other sort of Government but onely Monarchy; and that the Platforms of Commonwealths were hatched amongst a few Cities in Greece, and that they were first governed by Kings, until the wantonness, ambition, or faction of the People made them attempt news kinds of Regiment. But let any one read the Greek Histories, and he will find the cruelty and tyranny of Kings did more frequently give occasion to the People to run into Commonwealths, than either the ambition or faction of the People. And as for the antiquity of Monarchy, the alteration of it rather makes against him, since the whole Body of a People seldom alter a Government, unless they find themselves hurt by it, and that it proved inconvenient for them. I shall not dispute which is the better Government, Monarchy or Commonwealth, since in my own judgment I incline to the former, where the Monarch is good. And though I will not affirm, as the Author does,Directions for Obedience, p. 71.That even the Power which God himself exerciseth over mankinde, is by the Right of Fatherhood, as he is both King and Father of us all: Since besides his absolute power, and his being the sole cause of our production, he is also endued with that infinite Wisdom and Goodness, that he still orders all things for the good of his Subjects, and so hath besides his Power, the highest Right to govern, as the best and most perfect being; So likewise Monarchs, as far as they imitate the divine Wisdom and Beneficence, have the like Right to be called Gods Lieutenants. Nor shall I trouble my self, as the Author does, (p. 67. and so on to 73.) to compare the Mischiess and Inconveniencies that have been found in absolute Monarchical and Popular Government, there being various Examples both of Cruelty and Injustice in both; and I think they are both the aptest of any sorts of Governments to run into Extreams: and I know not whether there have not been found out a Regal Government mixt with somewhat of an Aristocracy or Democracy, which if truely observed, were freest from the inconveniencies of either. But this Author is so full of the mischiefs of Commonwealths, that he sometimes mistakes in History, and makes those Disorders to arise from the faults and licentiousness of the People, which proceeded indeed from the Usurpation of their Power. Thus he makes it the height of the Roman Liberty, that its Subjects might be killed by those that would; and sets forth the Tyranny of Sylla as an effect of the Roman Freedom, when indeed it was rather an effect of the absolute Monarchy usurped by Sylla during his Dictatorship. So that Dionysius Halicarnasseus gives us his judgment of those actions of Sylla, in these words:Lib. V. circa finem.I would onely shew, that for these wickednesses the name of Dictator became hateful: for all things seem good and profitable onely whilst they are well used, which if they come to be depraved by those that are in power, the same things are counted wicked and unprofitable. So likewise (p. 73.) he makes the Multitude or People of Rome to have elected Nero, Heliogabalus, Otho, and Vitellius for Emperours, and to have murdered Pertinax, Alexander Severus, Gordiun, and the rest there named; whereas whoever reads the Historians of those times, will find it was not the People or Senate, but the Army that either elected or murdered Emperours: And as for Nero, the Senate had never dared to have declared him a publick Enemy, had he not become so odious and intolerable, that nobody would take Arms for him; and that the Army under Galba, which had revolted and chosen him Emperour, was then marching to Rome. So that indeed these Emperours were torn in pieces by the Dogs they themselves fed, and kept constantly in pay to prevent the People, who had not yet quite forgot their former Liberty, from recovering it again. And the People of Rome had just as great a hand in the setting up and putting down Emperours, as those of Stambola have had in the deposing or setting up those Grand Seigniors which the Janizaries (their Guards) have strangled of late years, setting up their Uncles or Brothers in their rooms; or as the People of England had in setting up either Oliver or his Son Richard for Protectors. But leaving these lesser Mistakes, which I look upon onely as the Transports of the Author’s Resentments against Popular Government, in which I shall not contradict him in the main; onely I would fain lay the Saddle upon the right Horse, and not blame them for the faults committed by a standing Army which in those times domineer’d over both Emperour and the People of Rome, and imposed upon them what Emperour they pleas’d, though never so base and unworthy. I shall therefore in the last place come to the second point I before proposed, whether the person on whom the Fathers of Families upon this Escheat of the Crown confers their Authority, owe the same to them, or else immediately to God. The Author (in the passage before cited) will by no means grant, That the person so elected claims his Power from the People, but as being substituted properly by God, from whom he receives his Royal Charter of an universal Father, though testified bythe Ministry of the Heads of the People. Which Assertion is built upon grounds altogether false and precarious, as I have already proved: For first, he here supposes, That God hath given by divine grant, all Fathers in the state of Nature, an absolute despotick power over the persons of their Sons, so that they may sell or otherwise transfer this Fatherly power to whom they please. And secondly, That the Children are as much obliged to obey those to whom the Fathers transfer this Right, as they were their Fathers themselves. Thirdly, That this Power so transferred, does not properly derive it self from the Fathers who so pass over their Fatherly power, but to God, who conferred it on them at first. In which Hypothesis every one of the Propositions are false: For, first, I have proved that no Father hath by any divine Grant or Charter, an absolute despotick power over the person of his Son: Or, secondly, that God hath given Fathers a power to bequeath or transfer their Authority to another, so that the Grantee should by this Assignement succeed to all the Rights of a Father: and therefore the two former being false, the last of Princes receiving their power immediately from God, which is built upon them, must be so too. And besides, it is evident, that these Fathers do not onely here pass over a Fatherly power of governing of their Wives and Children, but likewise that of governing themselves, not as Fathers, but as men; since they must transfer this power, whether they had Wives or Children or not, else they might onely pass over to this new Monarch their power over their Wives and Children, and reserve the power of governing themselves still: So that it is plain, there is a power different from that of a Father, to be transferred. But if it may be replayed, They may chuse themselves a Father if they please; indeed I have heard of a mans adopting of a Son, which still must be by this Son’s own consent; yet I never heard of a Son’s adopting himself a Father, or that a Father, which is a natural Relation, can be created at mans pleasure: it is true, a Lord or Master may, but he cannot thereby challenge that natural Reverence and Gratitude due onely to a Father. So that if Fathers have a power of governing themselves and their actions in the state of Nature, and that they can confer this Right on any other, it is evident they do not confer this as a Paternal power on their Monarch, which the Author supposes to be granted by God to all Fathers.
We shall now come to the second Head at first proposed, and examine what power a Master of a separate Family hath over his Slaves or Servants in the state of Nature. First, As for hired Servants, though it is true they may submit themselves to the will and disposal of another what Diet they shall eat, and what Clothes they shall wear, what work they shall do, and what hours of rest or sleep they shall have to themselves; and that the Master may beat or correct him if he do amiss, and through wilfulness or negligence disobey his Masters commands; and that these are the Conditions that most hired Servants, being part of their Masters Family, do serve upon: yet is this not so properly an absolute Obedience, as a duty of Truth and Honesty in the Servant; since as he is bound to perform his part of the Contract, so likewise is the Master to perform what he hath promised them, since this service is neither absolute nor perpetual: so that when his time is out, he is free of course. And if in the mean time the Master does not allow him sufficient Food, Clothes, or hours of rest, so that he may be able to perform his work, this Servant in the state of Nature (if he cannot perswade his Master to use him better) may without doubt quit his service as soon as he can; since he was to yield his Master his Labour upon certain Conditions, which not performed on the Masters part, the Servant is not obliged any longer to perform his part of the Bargain, in living with him or serving him. And as for those that have sold or yielded themselves up as absolute perpetual Servants or Slaves to the government of another, I see no reason why they may not in this state of Nature make certain Conditions with their Master, before they will give themselves up to him, since if a man may covenant with another upon what condition he will serve him for seven years, why may he not do the same for his whole life? So that upon the non-performance of these Conditions, this kind of Servant hath the same remedy against his Lord as an hired Servant may have. And of this sort were our ancient English Villains, who though they could claim no property against their Lords, either in Goods or Lands; yet if the Lord killed his Villain, the Wife had an Appeal of Murder of the death of her Husband. Since no man can be supposed so void of common sense (unless an absolute Fool, and then he is not capable of making any Bargain) to yield himself so absolutely up to anothers disposal, as to renounce all hopes of safety or satisfaction in this life, or of future happiness in that to come. So that I conceive that even a Slave (much more a Servant hired upon certain Conditions) in the state of Nature, where he hath no civil power to whom to appeal for Justice, hath as much Right as a Son or Child of the Family, to desend his life, or what belongs to him, against the unjust violence or rage of his Master. Nor do I think any places of Scripture, if well considered, command the contrary: For as for the places in St. Paul’s Epistles, Ephes. 6. 5. Servants, be obedient to them that are your Masters according to the flesh, with fear and trembling. And Coloss. 3. 22. Servants, obey in all things your Masters, &c. does not extend to all things that are, but only to things lawful for them to do, that is, that were not against the Principles of Christian Religion. And in this it is that St. Peter, 1 Pet. 2. 18, 19. commands Servants or Slaves (which there were all one) to be subject to their Masters, not onely to the good and gentle, but also to the froward. For this is thank-worthy, or grateful, if a man for conscience towards God, εἰ διὰ συγείδϰπι Θιȣ͂, endure grief, or trouble, suffering wrongfully. Which words seem to import, that Servants ought to bear with a great deal of bad usage from their Masters; but does not command them in the state of Nature to give up their Lives or Goods to their Masters, without any resistance. But if any shall urge the Example of Christ alleadged in the third verse, who suffered (even to death) for us; I conceive that does not extend to a suffering or submission unto all things, but to such things for which Christ himself suffered, viz. for Conscience toward God, that is, for matters of Religion; which is likewise most agreeable to the sence of the words that follow: For what glory is it, if when you are beaten for your faults, you take it patiently? but if when you do well, and take it patiently, &c. Now who ever can imagine a Servant to be beaten for doing his duty? Therefore doing well, here, signifies the profession of Christianity; which they were not to deny, though they had unbelieving Masters. Therefore since no interpretation of Scripture ought to be against Reason, that can never tell a man that he ought to yield up himself so wholly to anothers disposal, as to give his Master an absolute right and power over him to kill or maim him without cause, or to be so basely and penuriously used as perpetually to suffer hunger, cold, and nakedness, or the like; so that his life should rather become a burden and a punishment, than a satisfaction. For since we have no notions of happiness but in life, nor in that farther than it is accompanied with some contentment of mind, no rational man can be supposed to consent to renounce all the pleasures and ends thereof, (and which onely make life desireable) much less the Right of living and preserving himself. So that even such a Slave may without doubt in the state of Nature, run away from his Master, and set himself at liberty if he can, since his Master hath not performed his part of that tacite condition of his Service; which was, that this Master should for his Labour provide him all the necessaries of life, and suffer him to enjoy the ordinary satisfactions of it. Nor is the worst of Slaves, that is, one taken in War, so absolutely at his Masters dispose, as that because he hath him in his power, he hath therefore a Right to use him as he will: For first, as long as the Conquerour keeps his Slave as a Prisoner, and makes him work in Fetters, though he hath given him his life for the present, yet there does not thence arise any Obligation in the Slave to Obedience; so that the Slave may yet run away if he can, nay, kill his Conquerour, unless he will come to other Terms with him, and make him promise him his Service and Obedience upon the granting him his Liberty and enjoyment of the ordinary Comforts of Life: And if he cannot enjoy these, I believe there is no sober Planter in Barbadoes (who are most of them the Assignees of Slaves taken in War) but will grant such a Slave may lawfully run away if he can. Therefore it is not true what Mr. Hobbes says, That no injury can be done to a Slave: for his reason is not valid, that because a Servant hath absolutely subjected his will to that of his Lords, therefore whatever he does, he does it by his Master’s will, in which his own is included, so that volenti non fit injuria: this proves no more than that the Slave hath no just reason of complaint though his Master give him Victuals that does not suit with his palate, orprescribe him Work which may not please his humour. So on the other side, what rational man will affirm, that this Slave hath given up the natural Rights of living, and being preferved as a man, but that injury may be done to this Slave as any other Servant, if the Task imposed upon him be beyond his strength to perform, or if he be beaten or like to be put to death without cause, or that he hath not Food sufficient to enable him to do his work? for he may still require at his Masters hands the usage of a man, and of a rational Creature. So likewise though this property in the person of a Slave taken in War, may be assigned over to another, yet the Right of commanding a Slave by his own consent, cannot be so, farther than it was agreed upon in the Bargain between him and his Lord: for if he covenanted to be a Slave onely to his Lord and no man else, the Lord cannot in justice assigne nor sell him to another, without his consent, nor leave him to his Heirs; since there might be certain peculiar reasons wherefore a man might subject himself to this man, and not to another. So likewise in absolute Empires which began purely from Conquest, though it is taken for granted that they may be aliened at the Will of the Conquerour, yet it is otherwise in Subjects who have submitted themselves upon certain Conditions, and who have some Liberties remaining to them; and much more in those Kingdoms which are limited by their Institution: for there, not properly the Persons of the men, but the Right of governing them, is said to be transferred as far as it is accompanied with the Honours and Profits annexed to it. For although a Prince may say of his Subject, He is my Man, yet this Property in him is much different from that whereby a Prince calls his Horse his own: for in the first sence he means no more than that the Right of governing this man belongs to me, and not to another, yet cannot be extended as far as he pleases; but that Property which is attributed to a Beast or other Goods, includes a Right of using or consuming that thing as he will himself, without any other reason than that it is his own. But although the Laws of Humanity do not permit, that however a man hath carried himself towards us, all Remains of that Primitive Equality between men should be quite extinguished towards him; and after a man hath entered into a state of Peace with us, that he should be dealt with as a Brute or inanimate thing: though it is true that the Cruelty and Avarice of divers Nations hath proceeded so far, that Slaves are reckoned amongst Houshold-goods, and are ordered not so much by Command, as by the force of an absolute Dominion and Property; yet this is not from the Law of Nature, but the Civil Law of that particular Commonwealth. So that though I grant by the Roman Civil Law, a man might have said of a Slave in the same sence as of a Beast, This is mine; yet this was not from the Laws of Nature, but Custom of that Empire, who taking many Captives in the Wars, almost all their Servants consisted at first of such: yet this is not allowed of in our Law, nor yet in France and other Countries. And this will serve to demonstrate what this Author lays down in his Preface to his Observations on Aristotle’s Politicks to be false, That Adam was a Father, King, and Lord over his Family, and that a Son, Subject, and Slave, or Servant, were all one at first; since it may hereby appear that there is a real difference in Nature between every one of them. And though the express names of Subject, Tyrant, and Slave, be not found in Scripture, yet the things are, and that as plainly described as if they had been called so; though the Hebrew being a barren Language, hath not distinct words for them, without Epithites or Circumlocutions: For (1.) As to Servants, it is apparent out of the Law of Moses, Exod. 21. v. 2. Levit. 25. 39. 44. Deut. 15. 12. there is a vast difference between Hebrew Servants and those that were of other Nations; these latter onely being called Bondservants, whose service was perpetual, and who were as a Possession and Inheritance to their Lords; whereas the former were not to be made to serve with that Rigour, but onely as hired Servants to be set free in the seventh or Sabbatical year. And it is frequent in the Law as well as Prophets, to make mention of the Wages of an Hireling. So that nothing is plainer, than that even among the Jews, there was a difference between hired Servants, Hebrew Servants for years, and forreign Slaves for ever. And before that, when Jacob served Laban for his two Daughters, it is evident that there was then a distinction between an hired Servant and a Slave, since there was a Contract for what Wages Jacob should serve him: And though Laban, for ought appears, according to the custom of those times, was an Independant Father of a Family, as well as Jacob was afterwards, and consequently a Prince, as this Author needs will have it; yet we do not finde it charged upon Jacob as a Crime, no not by Laban himself, but onely as a matter of unkindness, that he had stolen away from him with his Daughters and the Goods he had yearned in his service. So likewise, though the word Tyrant is not found expresly in Scripture, yet the thing it self is, if a Tyrant be one who abuses his Kingly Power to the Oppression of his Subjects; or else Pharaoh in Egypt, and those Kings who after the Israelites coming out of Egypt so cruelly oppressed them, were all good and lawful Monarchs, and had as much Authority as their own Princes which God set over them: and it had been a wicked thing in them to have resisted them and driven them out as they did, whenever they were able; since they were in possession, according to this Author, by the permissive Will of God. Having now shewn the difference of the Power of a Master of a Family, from that of a Father, and that the Right which a Father hath in his Children, is divers from that which he hath in his Servants or Slaves; I will now consider in the last place the Power which Adam had, or any other Husband now hath over his Wife in the state of Nature.
I have already proved that the Authority of the Husband over the Wife, commences from that Contract we call Marriage; and though by the Word of God the Woman is made subject to the Man, yet the reason of that subjection naturally depends upon the Mans being commonly stronger both in body and mind than the Woman; and where that ceases, the subjection will likewise of course cease, even amongst us: For we see that if a Husband be a foolish or a careless man, and either cannot or will not govern his Family and Estate, the Wife may and does, and oftentimes him into the Bargain: Nor does any one finde fault with her for so doing, since somebody must govern the Concerns of the Family; and if the man either cannot or will not, who hath more Right or Interest to do it, than her, who hath an equal share in the happiness and well-being of her Family and Children? Neither can there be at once two absolute Heads in the same house commanding contradictory things, without confusion, since the Children and Servants could never tell whom to obey. So that even this subjection of the womans will to the mans, commanded by Scripture, is still with a supposition that the man is capable or willing to govern: for if he be not, he loses this Prerogative of course. But suppose he is able to govern her and the Family, the Question is, What kind of Power he hath over her, as a Husband, in the state of Nature? I grant, that if she made it part of her Bargain to be so absolutely subject to him as that he might command her in all things as a Slave, and make her do what work he pleased to appoint, and that he may either turn her away, or put her to death, if he find her imbezilling his Goods or committing Adultery; the woman in this case is bound by her Contract, as another Servant, who makes her self so by her own act or consent. But this is not the Question, but what power the man hath naturally over his Wife, as a Husband, supposing no such Conditions or Bargain were made at the Marriage. It is true indeed that the Wife ought to be subject to the Husband in all things tending to the good and preservation of her Children and Family, or else the Family would have two Heads (as I said before.) But it does not therefore follow, that he hath such a despotick power over her, that she may in no case judge when he abuses his Fatherly or Husbandly power: For suppose the Father of a Family, in the state of Nature, should in a mad or drunken fit go about to kill or maim herself or one of his innocent Children, can any body think this were Rebellion against the Monarch of the Family, for the Wife to rescue her innocent Child or self out of his hands by force, if she could not otherwise make him be at quiet? Or suppose the Husband in such a fit should command his Wife to deliver him a sum of money which she had in her keeping, when she was morally sure that he would presently play it or otherwise squander it away; will any rational man affirm that a Wife may not deny to deliver her Husband his own money in such circumstances? So that it is evident, she never so absolutely submitted her will to his, as not to reserve to her self the faculty of a rational woman, as not to judge when her Husband would evidently destroy her self or Children, or absolutely ruine the Family, when he was not in a capacity to govern himself. So likewise if the Husband command her to do any thing against her Conscience, or the Laws of Nature, she is not obliged to obey him: For though the Wife in all matters peculiar to the Marriage-bed, and in all other things that relate to the well-ordering the Family, is obliged to submit her will to that of her Husband; yet it does not therefore follow that she is an absolute Slave, to be commanded or compelled in all actions not tending to this end. And if it be objected, that as Commonwealths cannot be governed without some coactive Empire, so Marriage cannot well subsist by a bare Compact, or the power of Friendship alone, to oblige the Wife to her duty, in case she prove disobedient. As I do not deny but perhaps it may be lawful for the Husband, as Head of the family, in some cases, if the Wife prove palpably obstinate and disobedient to his reasonable commands, and will not hearken to Reason, to compel her by correction; and the rather, since Christ hath taken away the liberty of Divorce, whereby a man might be rid of a cross Wife (as of an ill Servant) if she did not mend her manners; and therefore he hath no way else to mend her, if she will not do her duty by perswasion and fair means: Yet this Power is very rarely to be used, since it is onely some women that either need or will endure to be so handled; and all discreet and rational Wives, as well as Servants, will do their duty without it. Yet this Example of the absolute Obedience of Subjects in a Commonwealth, does not agree with that of a Wife to her Husband, as Head of the family; since Families (especially those who consist of a good number of Children and Servants) may have a twofold end: the one peculiar to it self, the other common with that of Civil Governments. The common end is considered in that defence and security, resulting from the conjunction of many into one Body; in which, although an absolute Empire be necessary, yet since the Wife being but one weak woman, can contribute but very little to this end, it may very well suffice to the peace and unity of the Family, if she be tyed to her Husband onely by a simple Compact by way of Friendship, without any despotick power over her. But the peculiar ends of Matrimony, which are the procreation and breeding up of Children, and providing things necessary for the Family, may well enough be obtained, although the Husband be not invested with this despotick power (which supposes that of life and death, or other grievous punishments) and though the Wife be tyed by her Compact only and the Bonds of Amity; of which Compact the Husband being the Principal, does imitate that of an unequal League between Civil States, in which the Husband being the Head, the Wife owes him all due respect and observance; and he on the other side owes her maintenance and protection. Therefore I am not of the opinion of some, who will have the Husband, in the state of Nature, to be endued with an absolute power of life and death over his Wife; and that in this consists the very quintessence of Marital power, because, forsooth, that all Empire, when it is in its proper subject, and neither is exercised precariously by any man, nor circumscribed by any superiour Power, does always import jus vitæ & necis over the Subject. But this is not so: for a man, in the state of Nature, may become part of anothers Family, and yet make it in his Bargain that the Master of this Family shall not put him to death or misuse, unless it be for Crimes that deserve death by the Law of God or Nature, or become a publick Enemy. And the Supposition is false, which first supposes such an absolute Empire to be in the Husband, as in the proper Subject; neither is them any absolute power of life and death necessary to the ends of Marriage: for if the woman commit small faults, and will not be amended, the Husband may correct her; if greater (as suppose Adultery) he may put her away, and likewise chuse whether he will provide for the Children which he hath reason to believe he did not get himself. If she murder her Children, or commit any other abominable sin against Nature, she may justly be cut off from the Family, and punisht as a common Enemy to Mankind; and so she might be if she had not been his Wife, but Servant, or other Member of the Family. Yet I do not affirm, that this despotick Empire, or power of life and death, is against the Laws of Nature, or inconsistent with the state of Matrimony, any more than the absolute power of a good Prince should destroy the love of his Subjects towards him, or the reverential fear we ought to have of God, destroy our love of him. Therefore as I have allowed that the woman may confer such a power on her Husband over her self, in the state of Nature; so I grant this absolute power may likewise be conferred on Husbands by the Civil Laws of particular Commonwealths. Thus it is murder for a man in England to kill his Wife taken in the very act of Adultery; but it is not so in Spain, Italy, and most other Countries, if he kill his Wife if he find her alone in another mans company, though it cannot be proved they have done any thing else to deserve it.
Having now gone over the whole power of the Head of a separate Family, as a Father, Husband, and Master, and proved that no man is a Slave by Nature, or without his own Consent (as a Slave by Compact) or without his fault, as a Slave taken in a just War; and that no Master of a Family hath such Right in the person of one of these, but that he may do him injury if he take away his life, or punish him without cause; and that such even such, a Slave may lawfully set himself free, if the Master do not perform his part of the Bargain. And having in the last place shewn what power a Husband hath over his Wife in the state of Nature, and from whence it takes its Original; it is now time to answer those Arguments and Objections made by this Author and others, That the Prince or Governour so elected by the Fathers of Families, or Freemen at their own dispose (which I hold to be equivalent to the whole People) hath not onely his Nomination from them, but that it is from God alone that he derives his Soveraign Power and Authority, with which he is endued upon his first acceptance of the Supreme Power; and if he should accept it with any limitation, it were to restrain that Power which God hath conferred upon him by his being made the Supreme Magistrate, and would hinder him from performing that great Duty as he ought. In answer to which I have already proved, that no such unlimited Power was conferred by God to any private man in the state of Nature, as a Father, Husband, or Master; and therefore could not be given to any Civil Soveraign, who is supposed to have no more power than the Father of the Family had before. A second Objection is, That no particular man hath in the state of Nature any power over his own life, and therefore cannot have any over the life of another man; and if one man hath not this power, neither have the People (which is but a universal consisting of fingulars) any such power, and consequently cannot confer it on any other man: therefore every Prince must have this Soveraign Power of life and death, not from the People, but from God. In answer to which, I shall first of all deny the consequence, that because God hath not given a man a power over his own life, therefore he can have none over the person of another. For God gave man a Right to preserve, but not to destroy himself, and so cannot dispose of his own life whenever he is weary of it. Therefore since the first Law of Nature is Self-preservation, it is lawful for a man to use all means conducing to this end, that do not prejudice another mans Right in his particular life or happiness; so that if any man assault me in the state of Nature, I may desend my self, and consequently kill the Assailant, if I cannot otherwise escape. But perhaps it will be replyed, that the intention here is not principally to kill the man, if it may be otherwise avoided; and that this Right is given men onely to preserve their lives from being taken away at another mans pleasure, but that no private man hath power to revenge an injury done to another or ones self, in the state of Nature, with death, but God, or him to whom God hath committed this power, according to St. Paul, Rom. 12. 19. Dearly beloved, avengs not your selves, &c. I shall prove that this place does not destroy that which I maintain: for I grant that all Revenge taken, as the satisfaction some men take in the very doing evil or prejudice to another, is unlawful, even by the light of Nature. Secondly, Likewise where Magistracy is instituted, who is to bear the Sword for the punishment of evil doers? I grant all return of like for like to be unlawful, since he is appointed as a publick Judge to right those that are injured, and maintain the common Peace. But no Text forbids men to punish injuries done either to themselves or those they have a concern for, in the state of Nature; for this is not Revenge, but a natural Punishment to deter men from committing violent and unjust actions that disturb the peace of humane Society, since the wrong doer declares himself thereby a publick Enemy to all Mankind. And on this account Cain feared that (not his Father onely, hut) every one that met him, would slay him, that is, punish him for the death of their Brother or Kinsman. And if this were unlawful, then all War must be so in the state of Nature; and Princes being always in that state in respect of each other, could never make any War for the gaining of Rights usurped, or to punish for Injuries received. So that this power which a man in some cases hath over the life of another, is onely given him by God for the common good and preservation of Mankind, of which every particular person is a part: and so this power conferred upon the supreme Magistrate is no more, nor extends higher than that, though there are more things requisite to the publick peace and safety of a Civil Government, than are to humane Society in the state of Nature: And from hence do supreme Powers derive their Right of making positive Laws, and ordaining higher Punishments for Offences than the Laws of God or Nature do expresly appoint, as for Theft, Coining, and the like. Nor is the Antecedent true, that no man in the state of Nature hath a power to dispose of his own life: For though it may be true that no man hath a Right to make away himself whenever he dislikes his being here; yet it does not therefore follow, but that for a greater good to the publick, any man, nay a Prince himself may lay down his life for his Peoples good: And therefore I doubt not but the Example of Codrus the Athenian King was not onely lawful, but highly commendable, in sacrificing his life for the good and safety of his People, supposing that all their Estates and Liberties depended upon that one Battel; much more for a private man to lay down his life to save some publick person highly useful to humane Society. And this much does the Apostle Paul himself seem to admit, Rom. 5. 7. when he says, For scarcely for a righteous man will one die: yet peradventure for a good man some would even dare to die. Where by a righteous man, Expositors understand one who had sufficiently done his duty in an ordinary private capacity, yet contributed little to the publick good; whereas by a good man, is understood some person highly useful and beneficial to others, and for such a one a man may not onely dare to die, but actually lay down his life if occasion be. A second Objection is, That if the supreme Magistrates Authority be derived from the People, then this Authority must be either inferiour or superiour to it. If inferiour, how can the People be commanded or governed by that which is inferiour to its self? If superiour, how can the Effect be more noble than the Cause, since neither any particular Person nor the whole Multitude had Soveraign Authority, and therefore could not confer it upon others. To this I answer, That this Soveraignty being but the submission of the Wills of the Persons that institute it to the Will of him on whom they confer it, that he should thereby make use of all their Powers for the common good of them all; and being therefore not any physical but moral Quality, may be produced in another by their Compact, who had it not formally in themselves before: As from the Voices of divers men singing together, there may arise a Harmony which was not in their particular Voices alone, though each of these Voices must be musical to produce it. So every particular person having before, in the state of Nature, a Right to preserve himself and to govern his own actions, when many men joyn together to confer this care upon one or more there arises a Political Power indeed more noble, yet of the same kind with the other: for if the singulars had it not before in some measure, the universal could not have it all. So that it is absurd to alleadge, that Soveraignty is not derived from men, because it cannot be found among a mans natural powers or faculties in the same manner, as it is in the supreme Magistrate, as if there were no other than Physical Qualities in nature; yet even in Physicks, admitting Epicurus Hypotheses of Atomes to be true, there will arise from their conjunction that quality in bodies which we call divisibility, and yet each particular Atome considered apart, being indivisible, had it not alone. But to answer a distinction they use in this matter between the immediate efficient and the immediate constituent modus of Soveraignty; they confess indeed, That by this Election and Transferring of the Power of the Fathers of Families, the Civil Soveraign is declared, but that it is from God alone that he receives his Soveraign Authority. If they mean by this transferring of Fatherly Power, any absolute Power which God hath by any Law divine or natural, conferred upon the Fathers over their Children and Families; I have already proved, that this Fatherly power is neither absolute, nor assigneable to another. If they mean any other Soveraignty distinct from this, then they must needs conceive this as an abstracted Ens, or Physical quality, which is immediately produced by God, and conferred upon the person of the Soveraign at his Election or Declaration: but I see no reason of constituting here more Causes than needs (as one efficient, and the other secundary) or why God should do that by an extraordinary unintelligible way of acting, which he may perform by a plain and easie one, since it is contrary to his other methods of acting in the course of Nature: For frustra fit per plura, quod potest fieri per pauciora; and supposing as I have already proved (and as divers who are sufficiently for Kingly Power do admit) that the People or Heads of Families have a freedom of setting up what kind of Government they please, either Monarchical or other; and if there were none other but Aristocracies or Democracies in the world, I would fain know what then would become of this notional Majesty or Soveraignty? Now if any man should ask them where this abstracted Soveraignty exists before it finds a King to settle upon, and whether it be a Substance or an Accident: if the latter, how it can subsist without its Subject? or if the former, when it was created whether it was at the beginning of the world, or like the Souls of men, creando infunditur, & infundendo creatur? or whether there be one single Soul of Soveraignty diffused all over the world, which being distributed, does, as it were, animate so many Kings? Also whether this Majesty dies with the Monarch, or else survives him as the Soul does the Body, and by a new Metempsychosis immediately transfuses it self into his Successour. If the Gentlemen of this Author’s Principles please but to consider these difficulties, I’ll undertake they will finde them as hard to be resolved as any the Author hath proposed about all the Peoples agreeing or being the cause of this Soveraignty: But I will not deny that God is properly the original and efficient Cause of Soveraignty as of all good things, and particularly of that power whereby every individual Freeman in the state of Nature, hath a power to dispose of his actions for his own preservation and the common good of mankind. And the particular powers of many men being put together, constitute that which we call a Politick or Civil Power. And therefore his last Objection is easily answered, That if the People be any Cause of Soveraignty or Civil Power, they must have received this power from God, by which they can confer it on any other: But it can no way be proved that they received it from God; for God having, as I said, imprinted upon mans Soul such a tender care of his own good and preservation, and hath likewise enjoyned him to preserve Peace and Order amongst men, in order to the common good and preservation of mankind, and hath likewise given him reason to find out all means necessary for this end, amongst which the constitution of Civil Government must be reckon’d as the principal; who can doubt but the faculty of constituting of Civil Government likewise proceeds from God the Author of Truth and giver of all good things? Thus the invention of Cloaths, Fire, and Houses, proceed from God, though they were found out by man as his Instrument, for a help to his necessities and natural weakness.See Garcilasso de Vega’s History of Peru. And as in some Countries there is little or no need of Cloaths or Houses, where the weather is always warm and serene; so likewise God hath not imposed upon any People an absolute Obligation of constituting any Civil Government at all, if they can live without it, or at least of its exercising farther than they have need of. Thus among the West-Indians,See Lerius Hist. Brafile, cap. 18. History of the Caribbe Islands, lib. 11. c. 19. in several parts of America, where they have no distinct propriety in Land, more than in their little Gardens, and Cabins, (which in Countries so slenderly inhabited as those, where Land is worth nothing) every man enjoys, by a tacite consent, a living upon Venison, Fish, or other Animals, and Fruits which the Woods produce; they need no Chattels, nor Dishes, but a few Earthen-pots or Cups of Calebasses, besides their Bows and Arrows, and Fishing-tackle, which every man knows how to make for himself. So likewise having no need of Clothes, and living but from hand to mouth, and taking care onely to provide meer necessaries of life, as they never have any superfluities, so they have no Disputes about them: and most of their things being easie to be provided, they are seldom known to steal them one from each other; and if a man catch another stealing any thing from him, he will be sure to beat the Thief soundly, or may be mark him with the sharp Tooth of a Beast they call an Agoutye (which is the disgracefullest punishment any man can suffer:) so that one of the main ends of a supreme power among us, viz. to decide Controversies about Property, and punish Thieves, are there of no use. And as for other Injuries, such as Maims, Adultery, and the like, they have no certain Judges for any of these things; every man that is injured in any of these cases, being his own Judge and Executioner, observing that Law of an Eye for an Eye, and a Tooth for a Tooth; onely in Adultery the man hath power to kill both his Wife and the Adulterer, if taken in the act; and in Murder, and great Hurts or Maims, where the party injured is not able to revenge himself, his neer Relations will not fail to do it; and if they should omit, they would be looked upon as Cowards or infamous: so that being naturally loving to each other, and having no words of disgrace to quarrel about, and other Quarrels happening but seldom, and no man maintaining or taking the part of the wrong-doer, or revenging the death of a Murderer or Adulterer, they have lived many Ages without any common Power to keep them at peace among themselves; and yet they have much fewer Crimes committed amongst them than us. It is true, they have Captains or Cacicks among them, but they have no power but in time of War; and when the Expedition is ended, though they pay them reverence and respect, and make them preside in all their Councils and Assemblies, yet they have no Authority in time of Peace to punish or question any man. So that if they lived in Islands which were either far distant from others, or else were inaccessible, and would make no forein Expeditions, they would not need so much as this Cacick, and so could live together without any other Government than that of the Fathers of Families over their Wives and Children. But perhaps it will be said, these are Man-eaters and barbarous People, and so are not to be quoted as Examples for the rest of mankind. It is true, the Brasilians eat their Enemies taken in War, but the Caribbes do not. But as for the Observation of the other Laws of Nature, I will leave it to any man to judge which part of mankind observe them best; those that can live peaceably together without either Judge or Gallows, or we that can scarce be at quiet, though we have them. But I have done this, onely to shew an intelligent Reader what are the true reasons of the necessity of a Civil Power amongst us that have a full propriety in all Lands and Goods by the particular Laws of our Countries.
Having now I hope dispatcht the first part of my intended Task, which was to prove that the Author’s Hypothesis concerning the Monarchical Despotick Power of Adam over his Wife, Children, or Descendants, is altogether vain, and without just grounds either from Scripture or Reason; and consequently that neither any Fathers of Families, nor the Princes as representing them, can from divine Grant deduce any such absolute Power or Right over their Children or Subjects: I shall not trouble my self with the answering of the rest of this Treatise, having gone a good way in the second Chapter, and answered his most material Objections about the Peoples conferring Soveraignty; so that the rest is of small consequence. I shall not need to examine whether the Jews chose the King, or God, since that Government being purely Theocratical, it concerns other Nations not at all; much less shall I vindicate the Form of the Roman Commonwealth, or dispute whether they were more happy under Kings or Emperours, or whether Democracies or Tyrannies are best; or affirm that the People can correct their King, or that there e’re have been any Tyrants in England since the Conquest, since they are all either foreign to this purpose, or else signifie nothing when his foundations are pulled up. As for what he says concerning a limited or mixt Monarchy, I shall reserve all that is needful to be observed upon that subject, until I come to consider the Author’s Treatise called, The Anarchy of a limited Monarchy; where all or the greatest part of what he hath here written, is there repeated. As for his third Chapter, since Divinity is not my Profession, and that the Texts of S. S. he there quotes, have been debated by so many Expositors both in English and Latine, I count needless to repeat out of others what sense they may bear, though I do not approve of the Author’s interpretation, who would have them applied alike to all Princes, whether good or bad, lawful or unlawful; since upon those Principles there can be no difference between a just Prince and a Tyrant, or between a lawful Monarch and an Usurper. Nor shall I meddle with what he says concerning the Kings Power and Prerogative, though I think there are divers things which he there says, that are false and of very ill consequence; yet since I confine my self purely to the Laws of Nature and Reason, I shall leave it to other more able Pens, and better skill’d in the Laws and Customs of this Kingdom, to give him such an answer as they deserve. Neither would I be thought to encourage Princes to stretch their Power to the utmost limits, nor yet to stir up Subjects to take Arms as soon as ever they think themselves injured, since the Populace is but too apt, where they are left to be their own Judges, to pronounce Sentence in ther own favour. Therefore, quitting all these as unnecessary Disputes, I shall now proceed to take a short view of the rest of those Errors and Mistakes which remain yet to be observed in his other Miscellany-Treatises first published.
CHAP. III.
I Desire the Reader in the first place to take notice that I wholly pass by the first Treatise called, The Freeholders Grand Inquest, since I confess my self no Lawyer verst enough in the learning of Records, to answer him in his own way; I shall therefore leave him to those that have made it their business: And as for great part of it concerning the Antiquity and Power of the Commons in Parliament distinct from that of the Peers or Inheritable Nobility, I shall refer the Reader to Mr. Petyts learned Treatise of the Rights of the Commons of England, where all Objections against it are in my opinion fully answered.See likewiss a late Treatise, intituled Jani Anglorum facies nova, written by a young Gentleman of great Learning and Ingenuity. Therefore I shall begin with his Observations upon Aristotle’s Politicks; which I shall not dwell long upon, since I look upon that as one of the confusedest Pieces he hath written: Nor is it my business, as that great Author said once in the case of Plato, to defend Aristotle, but Truth. I shall likewise pass by the Preface, since it contains nothing considerable but his Hypothesis of Adam’s Monarchy; of which there needs no more to be said. And as for the places out of St. Paul and Peter, it not being my designe to write Divinity-Lectures, I shall refer the Reader to the learned Commentators; onely I shall take notice that his Assertion, That these Apostles wrote their Epistles when the name of the Authority and People of Rome was still in being, though the Emperours had usurped a Military Power: and yet though the Government was for a long time, in most things, in the Senate and People of Rome; yet for all this, neither of the two Apostlestake notice of any such Popular Government; and our Saviour himself divides all between God and Cæsar, and allows nothing to the People. All which, though but a Negative Argument against Popular Government, and so not conclusive, yet the foundation of it is not true: For though in Rome there remained a shadow of the Power in the Senate, yet it was onely in such cases as the then Emperours committed to their judgment (as the Kings of France do now make use of the Parliament of Paris) onely to ease themselves of divers troublesome Causes, or to take off the odium from themselves, as in the condemnation of Sejanus and divers other Conspirators against them; and yet they reserved the last Appeal to themselves in Cases both Civil and Capital, as may be observed in St. Paul’s appeal to Cæsar: and it is certain that the Roman Emperours in those times put men to death as often as they had a mind to it, by their own power made what Edicts they pleased, and appointed Proconsuls and Governours of Provinces as often as they saw it convenient, and had all Money coined with their Image or Superscription; and received and disposed of all Tributes & publick Taxes. And yet this Author doubts whether Tiberius, Claudius, or Nero were absolute Monarchs, when they had all the Prerogatives that a Monarch could have.
I come now to the Author’s Observations on Aristotle’s Politicks. It will be easte to prove that he makes use of him in all places that make for his Hypothesis, but takes no notice of those that make against it (a usual course among Writers, especially in Politicks or Divinity:) Nor does he onely do this, but likewise oftentimes perverts Aristotle’s sence to make it subservient to his own; of which I shall produce these instances. In his first Quotation, p. 3. he renders these words, πασ[Editor: illegible character]δ[Editor: illegible character]ὁιϰεία βασιλεύέ[Editor: illegible character]αι ὑπο τȣ͂ [Editor: illegible character]εσϐυτάτȣ. for the eldest in every house is King: Whereas βασιλεύ[Editor: illegible character] does not here signifie to be an absolute Monarch, but to govern as a Master of a Family or chief Ruler; a power falls short of that of an absolute Monarch: And so Lambinus hath rendered it in his Version. So likewise he hath misplaced these words, [Editor: illegible character] νόμον λε[Editor: illegible character]μεν βα[Editor: illegible character] λεὺ[Editor: illegible character] [Editor: illegible character]ϰ ἵϚτν ε[Editor: illegible character]δ ϰᾴθαπερ εἵπομεν πολιτείας, and makes them to come in as a reason of what he says before concerning a perfect Monarchy; whereas this sentence precedes the former, and there are three or four sentences between them: and therefore it cannot serve for a Consequent, where it is really an Antecedent. Nor is this sentence truely rendered by the Author, For a King according to Law, makes no kind of Gouernment; whereas he should have said, No distinct species of Government: for so are these last words to be rendered; ȣ̓ϰ ἵϚτν ε[Editor: illegible character]δ ϰᾴθαπερ εἵπομεν πολιτείας. or else he would make Aristotle contradict himself, if after he had spoke so much in other **Vid. 3 Pol. c. 14. Speaking of the ancient Heroical Kingdoms. places of a King according to Law, he should make it no kind of Government at all. So likewise p. 4. he misrenders these words: τ[Editor: illegible character] [Editor: illegible character] βελ[Editor: illegible character]Ϛη ἡ β[Editor: illegible character]λ[Editor: illegible character] χειϱίϚη [Editor: illegible character] τιμοϰϱᾳτία, That of all Governments Monarchy is the best, and a Popular State the worst: Whereas any one but meanly skill’d in Greek, knows that βα[Editor: illegible character]λ[Editor: illegible character] does not signifie Monarchy, but Kingship; and τιμοϰϱᾳτίς is not a Popular Estate, but an Aristocratical Commonwealth, and in the same Chapter put in opposition to ὁημοϰϱᾳτία. I shall not trouble my self to inquire whether Aristotle distinguishes well between an Aristocracy and an Oligarchy, or between an Oligarchy and a Democracy; or whether he do well to exclude Artificers from any Vote in the Government: These I shall leave to be defended by those that are greater admirers of him than my self; onely I will see that (if I can) he have fair play, and not that sence put upon him that he never meant. And therefore I shall turn over to p. 12. where he quotes another place out of Aristotle’s fourth Book, cap. 13. That the first Commonwealth among the Grecians, after Kingdoms, was made of those that waged War: From whence he would infer, That the Grecians, after they left off to be governed by Kings, fell to be governed by an Army: So that any Nation or Kingdom that is not charged with the keeping of a King, must perpetually be at the charge of paying and keeping of an Army. Which, though it happened true during the corrupt Oligarchy of the Rump, which was but an armed Faction contrary to the sense of this Nation; yet is not a necessary Consequent of all Commonwealths: Neither is it the Author’s sence in this place, as may appear by what he says before, and what follows these words, That he meant no such thing, a standing Army in constant Pay being a thing unknown among the Greek Commonwealths, where every Freeman served in person as a Horseman or on foot, according to his ability, as any that reads those Histories may easily observe; and a Guard of Strangers, or a constant standing Army, was ever held the Body of Tyranny (as it still continues in all absolute Monarchies from France to China.) But to return to Aristotle, in the place before cited by the Author, where speaking just before of the Government of the Maleans and other Greek Commonwealths, he says, That their Government consisted not onely of those Footmen that bore Arms, but of those that had served in the Army: And then follows these words quoted by the Author, [Editor: illegible character]ὶ ἡ πϱ[Editor: illegible character]τη [Editor: illegible character] πελιτεία. So the words [Editor: illegible character] πολεμȣ́ντων, are not well rendered by those that waged War, since they should rather be rendered by those that went to the Wars; this Force not being to defend them from their own Citizens, but Neighbours with whom they were still at Wars: for it appears that not onely those had a share in the Government who were actually in Arms, but those also that had served in the Army; for Aristotle says immediately after, That their Strength consisted chiefly at first of Horsemen, and that as the Commonwealths increased in the strength and number of them that were of ability or substance to bear Arms, the Administration of the Commonwealth was communicated to more. From whence it appears, that (as also at first among the Romans) they onely had a Voice in their Councils or Assemblies, who were able to maintain themselves in the Wars at their own charge: As amongst us none have a Vote to chuse Parliament-men, but Freeholders? or as in old times, none but those who served in the Wars in person, had Votes in the Withena Gemote, or Great Council: And yet this was no standing Army no more than those in Greece. So likewise neither are these words fairly rendered in the same page, αῦτη γδ ἄ πλήθει, (and that in a Popular State) The Soveraign Power is in the Sword, and those that are possessed of the Arms; but are thus to be rendered, In this kind of Government (i. e. Popular) those govern and have greatest Power, who bear Arms and fight for the rest (which is but reasonable.) I shall not trouble my self with the rest of those Contradictions and Faults he find with Aristotle, since I look upon this Treatise of Politicks as the most confused he hath writ; onely it seems this Author did but skim over Aristotle, when he so confidently asserts, That the natural Right of the People to found or elect their own kind of Government, is not once disputed by him. which whether he asserts or no, let these words judge, lib. 5. Pol. cap. 10. Ἐν δὲ ταῖς [Editor: illegible character]ώ βασιλείας πϑέναι δὶ τῆς φϑο[Editor: illegible character]ὰς αἰτίαν ωρὸς ταἴς εἰρημῴαῖς ϰαὶ τὸ γνέϑαι πολλ[Editor: illegible character] θύ[Editor: illegible character]ταφϱ[Editor: illegible character]νήτοις, ϰαὶ τὸ δύναμιν μὴ ϰεϰτημῴοις τυϱαννιϰἱὼ ἀλλὰ βασιλ[Editor: illegible character]ϰ[Editor: illegible character] πμ[Editor: illegible character]ὼ, ὀϐ[Editor: illegible character]ιζεὶν ῥα δία γδ εγίνετο τί ϰαταλίσις, μὴ βȣλομῴνων γδ ὀ[Editor: illegible character]ϑις ȣ̓[Editor: illegible character] ὁζὶ βασιλεὺς, [Editor: illegible character]λλ’ [Editor: illegible character] τυϱαννὸς η[Editor: illegible character] μὴ βȣλ[Editor: illegible character]μῴ[Editor: illegible character]ν. Which may be thus Englished: But of Kingdoms by discent, this maybe supposed the cause of their dissolution, besides those already mentioned, viz. when it happens to many of them, who not being endued with the power of a Tyrant, but onely with a Kingly Authority, become contemned whilst they will unjustly abuse their Subjects; for then there is an easie dissolution of the Government; for he is not a true King over those that like not his Government, but a Tyrant. P. 20, & 21. He finds fault with Aristotle for making the main distinction between right Forms of Government, and those that are imperfect or corrupt, to consist solely in this, That where the profit of the governed is respected, there is a right Government; but where the profit of the Governours is onely regarded, there is a corruption or transgression of Government. By this it is supposed by Aristotle that there may be a Government (which he calls a Tyranny) onely for the benefit of the Governour. That this Supposition is false, may be proved from Aristotle himself, to instance in the point of Tyranny. And therefore the Author endeavours to make him contradict himself thus: Tyranny (saith Aristotle, lib. 3. cap. 7.) is a Despotical or Masterly Monarchy. Now he confesseth, l. 3. c. 6. That in truth the Masterly Government is profitable both to the Servant by nature, and the Master by nature: And he yields a solid reason for it, viz. It is not possible, if the Servant be destroyed, the Mastership can be saved. Whence it may be inferred, That if the Masterly Government of Tyrants cannot be safe without the preservation of them whom they govern, it will follow, That a Tyrant cannot govern for his own profit onely. And thus his main definition of Tyranny fails, as being grounded on an impossible Supposition. By his own confession, no Example can be shewn of any such Government that ever was in the world, as Aristotle describes Tyranny to be: for under the worst of Kings, though many particular men have unjustly suffered, yet the Multitude, or People in general, have found benefit and profit by the Government.
If Aristotle were alive, I doubt he would say this Author plaid the Sophister with him, and did not onely misquote his words, but pervert his meaning. For first, Aristotle does not say in that place he quotes, (or in any other that I know of) That Tyranny is a Despotical or Masterly Monarchy: And therefore all he builds upon this Concession is false. It is true indeed, Aristotle says, That the Government of the Master is profitable both to the Servant by nature, and the Master by nature, (that is, upon his supposition that they are either so by nature.) But the Author omits what immediately follows, because it would vindicate Aristotle’s true meaning: for his next words are, Nevertheless it (i. e. the Masterly power) regards chiefly the profit of the Master, and of the Servant but by accident; but Oecumenical Government, or that of a Master over the Wife, Children, and Servants, is for their sakes whom he governs, and for the common good of them all. Hence it appears plainly, that Aristotle, when he says that a Tyranny is for the benefit of the Governour alone, he does not mean that the Subjects can have no benefit at all by it, since it is the Tyrants interest they should live and get Children, or else he would quickly want Subjects. Thus the Children of Israel, under the Tyranny of Pharaoh, had Meat, Drink, and Cloaths, and were not so low kept but they got Children apace; and yet we find God thought them opprest, and heard their cry. But Aristotle clears the point, when he distinguishes an absolute Masterly power over a Slave, from that of a Father of a Family; the Master in the former considering onely his own profit, and the preservation of the Slave but by accident; and so an ill-natured brutish Master takes care of the life of his Slave that works in the Mines or Sugar-works in the Indies, not out of any love to the person of the Slave, but because he cannot subsist without him. So a Grasier or Butcher takes care of his Cattel that they thrive and do well (as they call it) yet every body knows that they take this care onely for their Carcasses, which yield them so much ready money at the Market. So that indeed a Tyrant onely considers his own good in the welfare of his Subjects, and looks upon them as no better than brute Beasts, in which he hath an absolute property to shear or kill, as he thinks it most conduces to his own profit; without considering to what end he is set over them: As the Grand Seignior makes use of the bodies of his poor Christian-slaves (for Subjects I cannot call them) to fill up Ditches, and to blunt the edge of his Enemies Swords. But that all Kings are bound to preserve the Lands, Goods, and Lives of their Subjects, the Author himself confesses, (Patriarcha, p. 94.) Though not by any municipal Law, so much as the natural Law of a Father, which binds them to ratifie the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects. So then I hope there is some difference between the Government of a Father over his Children, and that of an absolute Lord over his Slaves, notwithstanding our Author’s Quotation out of Aristotle, whereby he would make them all one, viz. That a Kingdom will be a Fatherly Government: Which is true, if you take it in the best sence, for that affection that Kings like Fathers should have for their Subjects: And so it is plain Aristotle intended it, by the words immediately foregoing, thus;Anarchy of a limited Monarchy, p. 294.For the Society of a Father with his Sons, has an appearance of a Kingdom; not that it is so indeed. But to make an end with Aristotle, I will give you one place more which the Author does not quote fairly; where Aristotle reckoning up the several sorts of Monarchies, The last (says he) isthe Heroick, which flourished in Heroical times; to whom the People did ** The Greek word is ἐϰούσιαι, of their own accord.willingly obey, and they were paternal and † legal. And then reckoning up the occasions & reasons of their Obedience, he concludes thus: ἐγίγνοντε βασιλεῖς ἑϰόντων, And these were chosen Kings by the consent of those that were willing (Lambinus renders it, à voluntariis) and left the Kingdom so obtained to their Children.† [Editor: illegible character] νομὸν. Which confutes the Author’s fancy, that a King according to Law makes no kind of Government. Which whole sentence is omitted by the Author, because it makes against his Hypothesis, and proves that the most ancient Kingdoms began by Election of the People. So true is that excellent Simile of the elder Dr. Don’s, That Sentences of good Authors, whilst they remain in their proper place, like the hairs of an Horses tail, concenter in one root of strength and ornament; but pulled out one by one, serve only to make Snares. And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence; where it makes for them they allow it, and make use of it; but where it is against them, it is false, or signifies nothing.
I shall now cursorily look over the rest of this Discourse; where (p. 23.) though it be true what Aristotle says, That the People must act as a Monarch, and become as one Person, before it can govern: So after they are so united into one Senate or Council, it is no good Argument to say, That the whole Multitude does not govern where the major part onely rules, because many of the Multitude that are so assembled, are so far from having any part in the Government, that they themselves are governed against, and often contrary to their wills; those people (to contract it) being the major part in one Vote, that are perhaps of another opinion in another: and so every change of business begets a new major part. For though it is true, every individual person does not actually agree to every Vote, yet implicitly he does, since at the first institution of the Government, the first Compact was, That the agreement of the major part should conclude the whole Assembly; and whoever either then would not, or now refuses to be so concluded, is still in the state of Nature, in respect of all the rest, and is not to be lookt upon as a Member of that Commonwealth, but as an Enemy, and a Covenant-breaker.
I shall not quarrel with the Author, if he hold that Monarchy does most conduce to the main ends of Government, Religion towards God, and Peace towards men; since I agree with him, that absolute Monarchy (if a man could be sure the Monarch would still continue prudent and just) were the best sort of Government for mankind. Onely I cannot but smile to finde the Author (p. 27.) so much admire the high respect the great Turk pays the Muftí or chief Bishop, as he calls him, (where by the by, I never heard the Turkish Church-Government was Episcopal before) yet every printed Relation can tell us, that this wonderful Reverence is but a meer piece of Pageantry, the Idol being of his own making, and whom he again unmakes at his pleasure; a sort of Ordination I suppose the Author would not allow to those of an indelible Character. It is true indeed what the Author affirms, (p. 29.) That Rome, being in any desperate condition, was still forced to flie to Monarchy, chusing a Dictator with absolute Power: Yet this was onely as a General in time of War, or some great civil Commotion being very near it; where it must be confest that the absolute power of one is best at such times, which needed a speedy Remedy: And argues no more the Romans good opinion of Monarchy, than it does any mans approbation of Martial Law; which though perhaps the best that can be used in War, it will not therefore follow that it were to be chosen in times of Peace, no more than because Brandy may do a man good when he is sick in his stomach, therefore he ought to drink it constantly. So that as one benefit of the Dictatorship was the help it gave them upon an Extremity, so the next happiness they wisht for after that was over was, that the Dictator would lay down his Office again. And the People of Rome were never more tyrannized over and opprest, than when these Dictators held their Power by force, contrary to their Institution, and longer than there was need of them; as may be seen in the Examples of Sylla and Cæsar. But the Consuls, though they had in many things (especially in calling the Senate, and in commanding the Army) a Kingly power, yet it was not absolute, but was liable to be questioned by the Senate and People; as any man that reads the Roman History may observe. [See the Oration of Valerius in Dionysius Halicarnassæus, lib. 7. upon the difference between the Senate and People.] I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin; but besides his personal faults, he was never their lawful King, having ascended the Throne by the murder of his Father-in-Law Servius Tullius, and kept it by the power of a standing Army, without the due Election of the Senate and People; which was contrary to the Institution of that Kingdom, which was Elective.
The Author (p. 32.) makes a great difficulty to grant the Roman Commonwealth to be Popular: It is true, it was not so absolutely, but was mixt with an Aristocracy in the Government of the Senate, and with Regal power in the Authority of the Consuls; yet it is plain, the supreme Power remained in the Body of the People: And though by the unequal division of the Centuries, it is true, the greater part of the common People were seldom admitted to vote, being concluded by the major part of the first 97 Centuries, who consisted of the better and richer men; yet this inequality begot the Tributa Comitia, which (with the Author’s good leave) was more absolute than the former Comitia Centuriata: For Dion. Halicarnas. lib. 9. relating the original of these Tributa Comitia, and how they differed from the other, says, That the latter were transacted in one day without any Auspicia, and could make a Law at once without any precedent Senatus Consultum; which the Curiata Comitia could not. And though it is true that the power of making War and Peace, creating of Magistrates, remained in the Comitia Curiata, yet the judging of great and capital Crimes, and of altering and making Laws, remained in the Tributa Comitia; as may be observed in the panishment of Coriolanus, and other punishments by them inflicted; and all Appeals were to this Assembly. Yet granting that the force of the Government lay in the Curiata Comitia, or better sort of Citizens, yet it was still vertually in the common People, who resumed it when they would. And it was to this whole Body of the People that Valerius Publicola used, when Consul, to make the Lictors abase his Fasces, and in that sufficiently acknowledged where the Soveraign Power Presided.
I shall not trouble my self farther to defend the Model of the Roman Commonwealth, which I look upon is one of the most unequal and irregular that ever were; and if it had not been for the excellent Temper, admirable Discipline, and exact Education of that People, it was impossible it could ever have lasted so long: In which when they began to grow remiss through Riches and Luxury, their Commonwealth soon fell to pieces, being indeed never well compacted at first. Much less shall I take upon me to defend a Popular Government, where the mixt Multitude, without any Representatives, consult of Affairs, or make Laws. Any man that will but read Thucydides and Livy, will see enough of it.
As for the Author’s Arguments against the People being able to agree to institute any Government at all, they are most of them but meer Wrangling, and have been answered in the foregoing Observations, and so need not be repeated. I shall likewise pass by the Author’s Directions for Obedience to Government in doubtful times, since I have already taken notice of all that is considerable in it.
CHAP. IV.
I Shall therefore in the next place look over his miscellany observations. (1) Upon divers modern Authors. As for Mr. Hob’s Leviathan. I shall leave them to decide the controversie as they please, and refer it to the readers judgment who hath the better on’t: For in many things I think neither of them are in the right: only it is a hundred pitties Mr. Hobs did not consult the Author, and take in his Patriarcal Hypothesis, and then all his rights of exercising Soveraign Tyranny would have gone down well enough. But for my part I neither like the foundation nor the building which Mr. Hobs hath set up, and therefore shall here leave the Author to build and pull down as he pleases without my intermedling.
And less shall I take upon me to vindicate Milton, since that were at once to defend downright Murder and Rebellion. So that I shall turn over to his observations upon Grotius, an Author of greater learning, and better reputation, than either of them. Where I shall not trouble my self to defend the manifold distinctions,P. 37. and contradictions of the old Civil Lawyers about the Law of Nature, and the Law of Nations; or whether the natural, and Moral law be all one, it is sufficient if Grotius’s didifinition of the law of Nature be true: Nor does it signifie any thing whether the word Law of nature be found in Scripture; Yet I think Thomas Aquinas may well enough be defended, that there is such a thing too proved from 11. Romans v. 14, 15. For though he doth not say expresly that nature is a Law unto them, but they are a law unto themselves, yet certainly Saint Pauls meaning is to the same: For if the Gentiles by nature did the things contained in the law, and so were a law unto themselves, I know not what else he can mean by their doing by nature the things contained in the law, but their living according to the Laws of nature or right reason, which (all rational men are sensible of as soon as they come of an age able to exert this faculty and so) becomes by nature a Law unto themselves; neither can this be custom, since Saint Paul says they do so by nature &c. the things contained in the Law.
Neither do I see any Reason why Grotius is to be blamed for not taking his Hypothesis concerning the Original of Mankind, of Dominion, and Property out of Genesis, since writing of the rights of Peace and War according to the laws of nature, and the general consent of civilised Nations, and not according to any revealed Will, or Law of God he was not bound (nay it was contrary to his purpose) to make use of Scripture farther than to confirm what could be made out from natural reason alone, for to have done otherwise had been to have written a treatise of cases of Conscience in Divinity, and not of right and wrong by the laws of nature. So that though he sometimes make use of Texts of Scripture, yet it is either to strengthen those, or else to answer some objections that may be drawn from thence against his conclusions. And therefore he was not obliged to take notice, whether God gave a begining to Mankind from one man, or more at once, since it might if he had pleased have been either way. Nor yet did he dream of Adams Monarchy over the whole Creation before he had any Subjects to command, nor of his being sole Lord Proprietor and first occupant of all the earth, and of all the Creatures in it, when neither he, nor his Children ever knew, nor made any use of the 1000. parts; of them, these were Notions too fine spun for a man of his solid judgment ever to light on, so therefore we must be beholding to our Author and some English Divines for this admirable discovery. Yet as I doubt not but if that great man were alive, he could well enough defend himself by that great reason, and learning he was Master of, against what ever this Author or some other lesser Scriblers could reasonably object against a work of that nature; yet I doubt not but most of those things the Author observes as errors, may be well enough defended by one of far meaner parts, and less learning than Grotius himself; so that I am not convinced that he either forgets or contradicts himself (as our Author will needs have him) when he refers alieni abstinentia or abstaining from that which belongs to another,P. 59. to consist with a sociable community of all things, because says the Author, where there is Community, there can be neither meum nor tuum, nor yet alienum; and if there be no alienum, there can be no alieni abstinentia, and so likewise by the Law of nature, men ought to stand to bargains, but if all things were common by nature how could there be any bargains.
In answer to which, it will appear that a Propriety of occupancy or the personal possession of things and applying it to the use of one or more men while they have need of it, may very well consist with community, and is absolutely necessary to the preservation of Mankind: As for Example, a Theater is in Common to all that have a right of coming thither, but no man can say that one place in it is more his than anothers, untill he is seated in it, and then that place is so much his, that whilest the Play lasts no man can without injury put him out of it; so likewise supposing 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.
- This a more innocent, and happy Chace,
- Then when of Old, but in the self same Place;
- Fair Liberty pursued, and meant a Prey,
- To lawless Power, here turned, and stood at Bay:
- When in that remedy all hope was plac’t,
- Which was, or should have been at least the last.
- Here was that Charter Seal’d wherein the Crown,
- All marks of Arbitrary Power lays down:
- Tyrant, and Slave, those Names of hate and fear,
- The happier Style of King, and Subject bear:
- Happy, when both to the same Center move,
- When Kings give Liberty, and Subjects love.
- Therefore not long in force this Charter stood
- Wanting that Seal, it must be seal’d in Blood.
- The Subjects Armed, the more their Princes gave,
- Th’ advantage only took the more to crave:
- Till Kings by giving, give themselves away,
- And even that Power, that should deny betray.
- Who gives constrain’d, him, his own fear reviles;
- Not thankt, but scorn’d; nor are they gifts, but spoiles.
- Thus Kings by grasping more then they could hold;
- First made their subjects by oppression bold:
- And Popular sway by forcing Kings to give
- More then was sit for Subjects to receive,
- Ran to the same extreams, and one excess,
- Made both by striving to be greater, less.
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.
FINIS.
ERRATA.
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. 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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.
ADDENDA.
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.
2: Preface
In his Preface Tyrrell seeks to cast himself as a moderate who opposed Filmer’s absolutist authoritarianism at least in part because Filmer’s view breeds a “Slavish Dread” of Princes and Governments.
Tyrrell insists that he is as much opposed to anti-monarchical democracy as he is opposed to Filmer’s position which takes away “all distinctions between Kings and Tyrants, and between Slaves and Subjects.” Tyrrell tell us “… I know not which is worst, to be knawn to death by Rats, or devoured by a Lion.”
… this asserting of such an unlimited Power in all Monarchs, and such an entire Subjection as this Author exacts from Subjects, can produce nothing but a Slavish Dread, without that Reverence, Esteem, and Affection for their Princes Person and Government which is so necessary for the quiet of Princes, and which they will have, whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression, according to just and known Laws:
James Tyrrell, *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). Chapter: THE PREFACE To the Reader.
Accessed from oll.libertyfund.org/title/2168/200955 on 2008-12-13
The text is in the public domain.
CAROLUS SECUNDUS Dei Gratia, Angl, Scotiæ, Franciæ Et Hiberniæ, Rex, Fide Defensor etc.
F. H. Van Heur [Editor: illegible word]
THE PREFACE To the Reader.
IT may not be unknown to those that have been conversant in Books and Pamphlets published during the late unhappy times, that all the Treatises (except the Patriarcha) which are the subject of the ensuing Observations, were published at first in single Tracts without Name, though they have since come out under that of Sir Robert Filmer Baronet, deceased: All which, though I hope they might be written with an honest designe, and in defence of Kingly Government, and of his then Majesties lawful and just Rights, then trampled upon by a domineering Faction, and may contain some things useful enough to confute divers levelling Notions then too much in fashion; yet whilst this Gentleman (as violent men commonly do) ran into the other extream, and must needs assert an Absolute Monarchy Jure Divino, so that no other Government can be lawfully exercised, nor the least Limitations set to it, without Sacriledge, and diminution of that Soveraignty which is derived from no less an Original than God himself; and by denying that Princes can ever be obliged by any Fundamental, or after-Contracts, or Concessions, or by any Coronation-Oaths, to abstain from the Lives, Liberties, or Properties of their Subjects, farther than as they themselves shall think it convenient; so that there can be no such thing in nature as a Tyrant: I leave it to the judgment of the impartial Reader, whether what this Author might designeas Physick, hath not served rather to inflame the Distemper; and whether he hath not by such rash and ill-grounded Assertions given too much advantage to the Enemies of Kingship to retort, That since all Government was ordained by God for the good of Mankind, that could never be of divine institution which would render all things to be so much the Princes Right, that the Subjects can claim a Property in nothing which he shall please to take from them; and that however they use them, yet they still exercise but their own Royal Rights and Prerogatives. So that by thus taking away all distinctions between Kings and Tyrants, and between Slaves and Subjects, I fear that (like Rehoboam’s harsh Answer to his Peoples Complaints) he hath not given many of his Readers a prejudice against that Government, which temper’d by known Laws, I take to be the best in the World.
For as Superstition can never serve to advance the true Worship of God, but by creating false Notions of the divine nature in mens minds, or render it not as it ought to be, the Object of their Love and Reverence, but servile Fear; so I suppose this asserting of such an unlimited Power in all Monarchs, and such an entire Subjection as this Author exacts from Subjects, can produce nothing but a Slavish Dread, without that Reverence, Esteem, and Affection for their Princes Person and Government which is so necessary for the quiet of Princes, and which they will have, whilst they believe he thinks himself obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression, according to just and known Laws: And that contrary Notions of this Supreme Power, are so far from setling mens minds in a sober and rational Obedience to Government, that they rather make them desperate and careless who is their Master, since let what change will come, they are sure to be no better than Slaves, as may be seen in all the Absolute Monarchies from France to China.
You may also consider whether most of the Argumentsthis Author makes use of for absolute Obedience to Usurpers, as representing the lawful Prince and Father of the People, might not serve for the establishing of Oliver and the Rump-Parliament, as well as a lawful Soveraign; since I am sure Milton makes use of the same places of Scripture for this purpose, which this Author and Salmasius do for another.
So that most moderate men, nay, the Author’s own Friends, may wish that either these Treatises had never been published, or at least have been left in private Studies and Book-sellers shops, amongst those heaps of Pamphlets condemned to dust and oblivion; since no man can imagine to what end this Patriarcha and other Tracts should come out at such a Time as they did, unless the Publishers thought that these Pieces, which printed apart could onely serve to ensnare the Understandings of some unthinking Country-Gentleman or Windblown-Theologue, could do no less, being twisted into one Volume, than bind the Consciences, and enslave the Reasons of all his unwary Readers.
Since therefore short Treatises of this kind, written in a gentile stile, and a formal appearance of Law and Reason, do more mischief among young men, and those that have not leisure to look much into the grounds of this Controversie, than tedious Volumes: And that this Notion of the Divine and Patriarchal Right of absolute Monarchy hath obtain’d so much among some modern Church-men, who cry it up as their Diana, and consequently hath so much infected our Universities, that are the Seminaries where the Youth of this Nation do commonly receive Principles both in Religion and Politicks, which if they have not a mind large enough to overcome the prejudices of Education, will mis-lead them as long as they live, and so make them desire at least to alter that Government, and give up those Priviledges which their Ancestors were so careful to preserve and deliver down to Posterity: I thought my self obliged (having perhaps more leisure, though less parts and learningthan a great many others) to do God, my King, and Country this service, as to lay open the weakness of the Reasons, and the dangerous consequences of this Author’s Principles. And though men of greater abilities may either dispise such weak Arguments as this Author makes use of, or else think it below them to spend so much time from their more useful and benesicial Employments, and that indeed his Reasons are not so knotty or intricate, that they require any more than honest sence and plain English to lay them open to the unprejudiced Reader; yet since the Poyson hath spread so far among the men of Letters, and in the Country among divers of the Gentry and Clergie, I thought it not amiss to do my weak endeavour to undeceive them: And in so doing, I desire to be thought no other than what I really am, a zealous assertor and defender of the Government establisht by Law; being so far from a Commonwealths-man, that for my own part I reverence Monarchy above all other forms of Government, and should be as willing to have it unmixt (it being that by which God Almighty governs the Universe) could humane nature be long trusted with it, and could we be as certain that his Vicegerents on Earth would as easily imitate those divine Attributes of wisdom and goodness, as they are prone to lay claim to his absolute Power. For as where those Perfections direct the Scepter, a Prince is to be loved and reverenced as the best Representative of the divine nature; so the exercise of an absolute unlimited Power, without these, can create no other Idea in mens minds, than what the barbarous Indians have of those perrible Gods they worship, to whom though they often make Oblations of what is dearest to them, yet it is upon no higher motive of Devotion, than that they thereby hope to cajole them not to do them any mischief, and would soon cast them off if they knew how to get rid of them. Therefore the fault is not in the Government as absolute, but in humane Nature, which is not often found sufficient, at least for above one or two Successions, to support and manage sounlimited a Power in one single person as it ought to be. And for this I desire the Reader to look over the Catalogue of all the Persian, Roman, and Turkish Monarchs that have ever succeeded in so many hundreds of years, and see how many good ones they will finde among them, and who truly considered the good and prosperity of that Empire which God had trusted them withal; the effects of which absolute Power being very well known to the Satyrist who lived under it, when he thus shrewdly observes:
— Nihil est quod credere de se NAJuven.
Non possit, cum laudatur Diis æqua potestas. Sat. 4. And how much Christian Religion hath altered the case, I desire all observing Readers to consult the late Histories of France and Muscovy, and other despotick Governments in Europe.
But since the Government of this Nation, as now establisht, I conceive the best in its kind, as most equal and beneficial both to the Prince and People; so that it is onely their faults who would go off from it, if they are not both Prince and People the happiest in the World: I hope I may, without sin, wish those accursed from God, who would remove our ancient Land-marks, and pull up all Limits between Prerogative and Law; and who (as it may justly be feared) would mis-lead Princes, enslave Mankind, and (if occasion were) sacrifice both to their own private Interests and Ambition. The like I may say of those who would destroy this ancient Government, and set up a Democracy amongst us; since I know not which is worst, to be known to death by Rats, or devoured by a Lion.
Nor is it that I am conscious to my self of having writ any thing in these ensuing sheets contrary to Law, destructive to Government, or that Obedience which all good Subjects own their Prince and his Laws, which hath made me forbear prefixing my Name to this Treatise; since perhaps some of those Motives which might perswade this Author to forbear it in the Treatises he published, might likewisehave the same effect upon me; especially since I doubt not but what I have here written will provoke those Craftsmen who esteem this Notion of our Authors (by which they expect to get both Riches and Honour) as the Diana that fell down from Jupiter: And therefore it is no wonder if they are angry with any man that should go about to pull off the specious Vails with which they have covered it, and shew it (as it really is) a wooden Idol of their own making; and if they knew the man, would, according to the usual course of those who abound more in Malice than Reason, quit the matter, and fall upon the person of their Antagonist, and endeavour to stir up both the great Vulgar and the small Vulgar (as Mr. Cowley ingeniously terms men of Title without Sense.)
Besides all which, joyn’d with the small opinion I have of my own performances, or that I think these Papers capable to transmit my Name to Posterity; yet if I were sure I could do it, however writing against an ingenious Gentleman long since deceased (and whose good Name upon all accounts I designe not to diminish) yet I should not think it generous to raise my self a Fame to the prejudice of another mans: And therefore my Request to you is, That you would believe I write these Observations for no other end than for the Truth, and in defence of the Government as it is establisht, and the just Rights and Liberties of all true English-men. All which, I pray God preserve as long as the Sun and Moon endure.
I am your Friend,
Philalethes.
3: Chapter I [untitled]
Filmer holds that the model for monarchical authority is paternal authority and holds that monarchical authority is unlimited and unmixed because paternal authority is unlimited and unmixed. Against Filmer, Tyrrell argues extensively that parental authority is not unlimited and that, under the Law of Nature, limited parental authority is divided between the child’s mother and father. Tyrrell insists that Adam did not possess any unique universal authority — as Cain himself recognized when he expected that anyone he encountered, not just his father, would punish him for killing Abel.
According to Tyrrell, paternal authority and its limits are to be explained by reference to the Law of Nature. Tyrrell provides a utilitarian-sounding explication of the Law of Nature according to which each person is to promote “the common good and preservation of Mankinde.” Indeed, this Law of Nature encompasses a right of children to defend themselves against their fathers.
Since therefore the Father’s greatest interest in his Child proceeds from his having bred it up, and taken care of it, and that this Duty is founded on that great Law of Nature, that every Man ought to endeavour the common good of Mankinde, which he performs, as far as lies in his power, in breeding up, and taking care of his Child; it follows, that this right in the Child, or power over it, extends no farther than as it conduces to this end, that is, the good and preservation thereof: and when this Rule is transgressed, the Right ceases. For God hath not delivered one man into the power of another, merely to be tyrannized over at his pleasure; but that the person who hath this Authority, may use it for the good of those he governs. And herein lies the difference between the Interest which a Father hath in his Children, and that property which he hath in his Horses or Slaves; since his right to the former extends only to those things that conduce to their Good and Benefit; but in the other he hath no other consideration, but the profit he may reap from their labour and service, being under no other obligation but that of Humanity, and of using them as becomes a goodnatur’d and merciful man; yet still considering and intending his own advantage, as the principal end of his keeping of them. Whereas in his Children he is chiefly to design their good and advantage, as far as lies in his power, without ruining himself;
… if the Fathers (as I said before) are intended for the good and preservation of their Child; and that where their Right ceases, the Childrens Right to preserve themselves takes place: It seems to conduce more to the general good of Mankinde, that the Children should make use of this last refuge of defending themselves, when they cannot otherwise preserve their Lives and Members, than that Fathers should have such an absolute Right to deal with them as they pleased, without any power in the Children to resist or defend themselves
James Tyrrell, *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). Chapter: Chap. I.
Accessed from oll.libertyfund.org/title/2168/200957 on 2008-12-15
The text is in the public domain.
Chap. I.
THE reason why I chuse to begin these Observations with this Treatise of the natural Right of Kings, rather than with any of the rest, though published long before it, is, because being (as I suppose) writ after the rest, and on purpose to assert Monarchy to be Jure Divino, is likely to contain the Authors most mature thoughts; and being written with better connection than his other Tracts, contains the substance of them all; which were designed not so much to establish an Hypothesis, as to observe the weakness of other mens: and being published at several times, and on divers occasions, give us but the same Notions repeated, according as the Tenets in the Authors he writ against needed (as he thought) a Confutation: Which how far they do deserve it, I leave to the Reader to judge; and therefore shall not take upon me to defend any mans Opinions, though never so great or learned, farther than I conceive them agreeable to right Reason. Nor shall I trouble my self to criticize on every small Errour or Mistake in this Author’s Writings, but onely set my self to consider such main Arguments as appear to be founded on false or meer precarious Principles; not concerning my self with his other Treatises, but as they contain some other Reasons or newer Matter than I finde here.
Page 2. The designe of this Treatise, is against an Opinion maintained by some Divines, and several learned men, That Mankind is naturally endowed and born with Freedom from Subjection, and at liberty to chuse what form of Government it please; and that the Power which any one man hath over others, was at first bestowed according to the discretion of the Multitude. Page 3. This Opinion, he says, is not to be found in the Fathers of the Primitive Church: that it contradicts the Doctrine and History of the Holy Scriptures, the constant practice of all ancient Monarchies, and the very Principles of the Law of Nature. And upon this Doctrine the Jesuits, and favourers of the Geneva Discipline, have built this perilous Conclusion: That the People or Multitude have power to punish or deprive the Prince, if he transgress the Laws of the Kingdom. And for this quotes the Writings of divers Jesuits.
How far this Tenet deserves the Author’s Censure, and is liable to the Conclusions he says some have drawn from thence, since the truth or falshood of Propositions does not depend upon the men that have made use of them, I shall consider hereafter; now confining my self onely to examine the Reasons he brings either in this or any other of his Treatises to overthrow this Opinion. And if they prove weak, and insufficient for the end the Author designed them, some Friend of his, or his Tenets, had best finde out others; which if they prove and appear evidently true, I shall then rest satisfied, and acknowledge my self absolutely convinced. In the mean time I shall now give you the Author’s Hypothesis all at once, in his words, that you may judge whether I deal fairly with him or no.
P. 5. To pass over therefore his Cautions (which are honest and sober) I shall come to what he observes upon several passages of Bellarmine. And though he does not quote the places from whence he took them, yet I hope he hath dealt fairly with him: Though I shall not take upon me to defend the contradictions or false consequences either of this or any other Author, since I onely observe the onely Answer which (p. 11.) Sir R. F. gives Bellarmine’s Argument for the natural Liberty of the People, is out of Bellarmine himself, whose words are these: If many men had been created together out of the Earth, they ought all to have been Princes over their Posterity. In which words (the Author says) we have an evident confession, that Creation made Man Prince of his Posterity. And indeed not onely Adam, but the succeeding Patriarchs had by right of Fatherhood, Royal Authority over their Children. Nor dares Bellarmine deny this. That the Patriarchs (saith he) were endowed with Kingly power, their deeds do testifie; for as Adam was Lord of his Children, so his Children, under him, had a Command and Power over their own Children:but still with a subordination to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People. Which conception of Bellarmine, though it may destroy his Argument for natural Freedom, yet I conceive that it does not destroy the necessity of supposing all the Kingdoms and Commonwealths now in being in the world, to have had their beginning from Conquest, or else from the Consent or Institution of the People who began it; as I shall endeavour to prove more at large.
But from this concession of Bellarmine’s, the Author taking this as a yielded point, proceeds thus: P. 12. I do not see how the Children of Adam, or any man else, can be free from Subjection to their Parents; And this Subjection of Children being the Fountain of all Regal Authority, by the Ordination of God himself, it follows, That Civil Power not onely in general is by Divine Institution, but even the Assignment of it specifically to the eldest Parents: Which quite takes away that new and common distinction which refers onely Power Universal and Absolute to God; but Power Respective, in regard of the special Form of Government, to the Choice of the People.
P. 13. This Lordship which Adam by command had over the whole World, and by right descending from him, the Patriarchs did enjoy, was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation. For Power of Life and Death, we finde that Judah the Father pronounced sentence of death against Thamar his Daughter-in-law for playing the Harlot; Bring her forth (saith he) that she may be burnt. Touching War, we see that Abram commanded an Army of 318 Souldiers of his own Family; and Esau met his brother Jacob with 400 men at Arms. For matter of Peace, Abraham made a League with Abimelech, and ratified the Articles with an Oath. These Acts of judging in capital Crimes, of making War, and concludingPeace, are the chiefest Marks of Soveraignty that are found in any Monarchy.
And not onely until the Flood, but after it, this Patriarchal power did continue, as the very name Patriarch doth in part prove. The three Sons of Noah had the whole World divided amongst them by their Father; for of them was the whole World overspread, according to the Benediction given to him and his Sons: Be fruitful, and multiply, and replenish the earth.
Then he proceeds upon a vulgar Opinion, p. 14, 15. That at the Confusion of Tongues, there were 72 distinct Nations erected, not as confused Multitudes, without Heads or Governours, but they were distinct Families which had Fathers for Rulers over them: whereby it appears, that even in the Confusion, God was careful to preserve Paternal Authority, by distributing the diversity of Languages according to the diversity of Families. And for this he quotes the Text, Gen. 10. v. 5. Speaking of the division of the Isles of the Gentiles among the Sons of Japhet, it follows, v. 5. These are the Families of the Sons of Noah, after their Generations in their Nations; and by these were these Nations divided in the Earth after the Flood. So that though the manner of this Division be uncertain, yet it is most certain the Division it self was by Families from Noah and his Children.
P. 16. As for Nimrod’s being King over his own Family by Right, and over other Families by Usurpation and Conquest, and not by Election of the People or Multitude, he gives us Sir Walter Rawleigh’s opinion that it was so; (which I think is no better a proof than if he had given us his own:) but if it were true, it proves no more, than that this Patriarchal Right could not long continue, since it was usurped in the Grandchild of Ham, the fourth discent from Noah. But he proceeds thus:
As this Patriarchal Power continued in Abraham, Isaac, and Jacob, even unto the Egyptian Bondage; so we finde it amongst the Sons of Ismael and Esau: it is said, These are the Sons of Ismael, and these are their names by their Castles and Towns, Twelve Princes of their Tribes and Families, &c.
P. 18. He owns this Paternal Government was intermitted during their Bondage in Egypt, because they were in subjection to a stronger Prince: But after the return of the Israelites out of bondage, God, out of a special care of them, chose Moses and Josuah successively to govern as Princes, instead of the supream Fathers: And after them, God raised up Judges to defend his People. But when God gave them Kings, he re-established the ancient and prime Right of Lineal-succession to Paternal Government: And whensoever he made choice of any special person to be King, he intended that the Issue also should have the benefit thereof, as being comprehended sufficiently in the person of the Father, although the Father onely was named in the Grant.
P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis, That it may seem absurd that Kings now are Fathers of their People, since Experience shews the contrary. It is true (says he) all Kings are not the natural Parents of their Subjects, yet they all either are, or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People; and so in their right succeed to the exercise of Supream Jurisdiction: and such Heirs are not onely Lords of their own Children, but of their Brethren, and all others that were Subjects to their Fathers. And therefore we finde that God told Cain of his brother Abel, His desires shall be toward thee, and thou shalt rule over him. Accordingly when Jacob bought his brothers Birthright, Isaac blessed him thus: Be Lord over thy brethren, and let the sons of thy mother bow before thee.
P. 20. As long as the first Fathers of Families lived, the name of Patriarch did aptly belong unto them; but after a few Descents, when the true Fatherhood it self was extinct, and onely the right of the Father descended upon the true Heir, then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy. By this means it comes to pass that many a Child, by succeeding a King, hath a right of a Father over many a gray-headed Multitude, and hath the Title of Pater Patriæ.
It may be demanded, What becomes of the Right of Fatherhood, in case the Crown does escheat for want of an Heir; whether doth it not then devolve to the People? The Answer is, It is but the negligence or ignorance of the People to lose the knowledge of the true Heir: for an Heir there is always. If Adam himself were still living, and now ready to die, it is certain that there is one man, and but one in the world, who is next Heir, although the knowledge who should be that one man, be quite lost.
P. 21. This ignorance of the People being admitted, it doth not by any means follow, that for want of Heirs the Supream Power is devolved to the Multitude, or that they have power to rule, and chuse what Rulers they please. No, the Kingly power in such cases escheats to the Princes and independent Heads of Families: for every Kingdom is resolved into those parts whereof at first it was made. By the uniting of great Families or petty Kingdoms, we finde the greater Monarchies were at first erected; and into such again, as into their first matter, many times they return again. And because the dependancy of ancient Families is oft an obsure and worn-out knowledge, there the wisdom of many Princes have thought fit to adopt those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes, have enabled them, or made them fit and capable of such Royal Favours. All such prime Headsand Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please: And he that is so elected, claims not his power as a Donative from the People, but as being substituted by God, from whom he receives his Royal Charter of an Universal Father, though testified by the Ministry of the Heads of the People.
P. 22. In all Kingdoms or Commonwealths in the world, whether the Prince be the Supreame Father of the People, or but the true Heir of such a Father, p. 23. or whether he come to the Crown by usurpation of the Nobles, or of the People, or by any other way whatsoever; or whether some few or a multitude govern the Commonwealth; yet still the Authority that is in any one, or in many, or in all these, is the onely Right and natural Authority of a Supream Father. There is, and always shall be continued to the end of the world, a natural Right of a Supream Father over a multitude, although by the secret Will of God, many do at first most unjustly obtain the Exercise of it.
To confirm this natural Right of Regal Power, we finde in the Decalogue, that the Law which enjoyns Obedience to Kings, is delivered in the Terms of, Honour thy Father and thy Mother: as if all Power were originally in the Father. If Obedience to Parents be due immediately by a natural Law and Subjection to Princes, but by the mediation of an humane Ordinance, what reason is there that the Laws of Nature should give place to the Laws of Men? as we see the power of the Father over his Child, gives place, and is subordinate to the power of the Magistrate.
P. 24. If we compare Rights of a Father with those of a King, we finde them all one, without any difference at all, but onely in the latitude or extent of them: As the Father over one Family, so the King as Father over many Families, extends his care to preserve, feed, clothe, instruct,and defend the whole Commonwealth. His War, his Peace, his Courts of Justice, and all his Acts of Soveraignty, tend onely to preserve and distribute to every subordinate and inferiour Father, and to their Children their Rights and Priviledges; so that all the Duties of a King are summed up in an Universal Fatherly Care of his People.
I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings, as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words; and so be the better able to judge whether I understand and answer him or not; as because it contains the substance and strength of all that the Author had to say in defence of it.
So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it. His first Argument against the natural Freedom of Mankinde is drawn from Scripture, and from Bellarmine’s own Concession, That Adam was (and consequently every other Father ought to be) a Prince over his Posterity. And as Adam was Lord over his Children, so his Children, under him, had a power over their own Children, suberdinately to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People.
So that neither the Children of Adam or any else, can be free from subjection to their Parents; and this subjection to Parents being the foundation of all Legal Authority, by the Ordination of God himself: therefore no man can be born in a state of Freedom or Equality.
In answer to which, I shall not concern my self what Bellarmine or any other have granted; but would be glad to know where and how God hath given this Absolute power to Fathers over their Children, and by what Law Children are tyed to an Absolute Subjection or Servitude to their Parents, since the Author in another place affirms, that at first a Childe, a Slave, and a Servant, were all one without any difference.Vid. Preface to his Observations on Aristotle’s Politicks. I see no divine Charter in Scripture of any such absolute despotick power granted to Adam or any other Father.
The Author, in his Observations on Grotius de Jure belli, &c. founds this dominion of Adam over the Earth and all Creatures therein, on Gen. 1. 28. and quotes Mr. Selden in his Mare Clausum; where he says, That Adam, by donation from God, was made the general Lord of all things, not without such a private dominion to himself as did exclude his Children, &c. From which words I do not conceive that Adam’s absolute power over his own Off-spring can be made out; for the words are spoken as well to the Female as Male of Mankind: Be fruitful and multiply, and replenish the Earth, and have dominion over the fish of the Sea, &c. and over every living thing that moveth (in the Original, creepeth) upon the face of the Earth. By which words Adam hath no power conferred upon him over his own Children (when he should have them:) These words implying no more than a conferring of a power by God on Mankind, under these words of Male and Female (and was not at all personal to Adam or Eve alone) whereby they might subdue or tame the Brute Creatures for their use, not comprehending those of the same kind with themselves; since the general words extend no farther than to every living thing that creepeth upon the Earth: nor does Gods grant of the Creatures to Noah comprehend more than this: Onely God there gives man a priviledge to kill the Creatures for Food, which Adam had not. Which shews that Adam was so far from having any such power of Life and Death over his own Children, that he had it not so much as over Brute Creatures: Since if he had this power as a Monarch, it is highly probable, that being the Father of all Men in the world, and having by the murder of Abel not onely loft a Son but a Subject, it had been his Right alone to have punished Cain the Murderer: Whereas we finde Cain, Gen. 4. v. 14. upon his conviction of the Murder, telling God, that every one that findeth him, should slay him; and therefore, v. 15. God set a mark upon Cain, lest any finding him should slay him. From whence we may infer, 1. That it was a Law of Nature then, that Murder was to be punished. 2. That this Right of punishing did not belong to Adam, as a Father, alone, so as to have power of Life and Death over his Children, since the Text does not mention that he was afraid his Father should put him to death, but every one that met him: Neither does God set a mark upon him to secure him from Adam, but from any body else that should light on him. From whence it follows, that if Adam had no more right by Gods concession to take away his Sons life for the murder of his Brother, (which is one of the greatest offences he could commit) than any other of his Brethren or Kinsmen; there is no reason why he should have it in any other case. And as for what the Author says, That this Lordship which Adam had over the whole World, the Patriarchs by a Right descending from him, did enjoy; which was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation; I cannot understand how this Right derives it self from Adam: For he tells us but a little before, p. 12. That Civil Power not onely in general is by divine Institution, but even the Assignment of it specifically to the eldest Parents. Therefore granting that all the Patriarchs from Abraham to Jacob’s twelve Sons, inclusively, assumed a power of Life and Death over their own Families, 1. I desire to know how this Right can be derived from Adam: for the Right of supream Monarch of the world descending upon the eldest Son of Adam, whom we will suppose to have been Seth (since Cain might forfeit his Birthright,) this power of Life and Death could onely be truly vested in the eldest Grandchild, or descendant from Seth; which I suppose the Author means by eldest Parents, or else he talks nonsence: And that Abraham was this eldest Grand-son of Seth, will be hard to prove, since it is not apparent from Scripture, whether Shem or Japhet were the eldest Son of Noah, or Abram or Nahor the eldest Son of Terah. And the Fathers and ancient Commentators on this place, are divided in their opinions concerning this point. And it is plain from divers places in Scripture, that the eldest Son is not always first named. But supposing that Shem was the eldest Son of Noah, it does not appear that Arphaxad from whom Abram descended, was his eldest Son, since the Scripture does not undertake to give us the names of all the Sons of Shem, but onely of Arphaxad, as his name was necessary for the deriving of the Genealogy of Abraham the Ancestor of the Jewish Nation. But if any man will answer (as the Author does, p. 21.) that this right Heir of Adam coming by length of time to be lost, this supream Kingly power became devolved to all independent Heads of Families; then this Right of Adam, as Lord and King of the whole World, as the first man, must certainly be extinct, since none but the true Heir could have a Right to that (according to the Author’s principles:) So that this power of Life and Death which the Author will have the Patriarchs to have exercised over those of their Family, must belong to them either as Fathers, or else as Masters, or Heads of their particular Families; and not as Heirs to Adam. But since the Author seems to found this Power of Adam upon Mr. Hunton’s concession, (See Anarchy of a limited Monarchy, p. 264.) That it is God’s Ordinance that there should be Civil Government, because Gen. 3. 16. God ordained Adam to rule over his Wife, and her desire was to be subject to his; and that as hers, so all theirs that should come out of her: First, all Expositors look upon these words as respecting only a Conjugal, and not Filial Subjection. Neither were they spoke in the state of Nature or Innocence, but after the Fall. Neither for all that, did Adam, or any other Husband, by these words acquire an absolute Authority over the Life of his Wife, in the state of Nature, so that she hath no right left her to defend herself from the unjust violence or rage of her Husband. Therefore since this Power of Adam over Eve and her Children, cannot be pretended to belong to him as a Father, but as a Master of a Slave, and those that shall be descended from her; it were worth while to enquire, what Power a Father, if Master of a Family can claim separate from any commonwealth, (as we will suppose these Patriarchs were.) For this will serve toward the solving those examples he puts of Abram’s power of Peace and War, and of Judah’s power of Life and Death over his Daughter-in-law Thamar. We will first then consider the power of a Father by the Law of Nature over his Children, and then that of a Master of a Family over his Wife, Servants, or Slaves. To begin with that of a Father, as the most worthy; I shall endeavour to search into the Original of the Father’s power over the persons of his Children, and how far it extends.
It is evident, that this Power of Fathers over their children, can only take place in the state of Wedlock; so as to Children got out of Marriage, it is uncertain who is their Father; who can only be known by the declaration of the Mother; and she sometimes cannot certainly tell herself. So that no man is obliged to take care of or breed up a Bastard, because the Mother, if she had her liberty of keeping what company she pleased, can never morally assure him that the Child is his: therefore unless he take upon him the care and education of this Child, it belongs to the Mother, and not to him to provide for it. So that the Right of the Father over his Child, commences by vertue of the Marriage, which is a mutual Compact between a Man and a Woman for their Cohabitation, the generation of Children, and their joint care and provision for them. So that though by the Law of Nature (which is confirm’d by the Law of God) the Woman as the weaker vessel, is to be subject to the Man, as the stronger, stouter, and commonly the wiser creature, to whose care and courage she must owe the greatest part of her provision and protection; yet she is not without an Interest in the Children, since she is under an obligation to perform her part (and that the most laborious and troublesome) in their Education; though her Power and Right in them be still subordinate to that of the Man, to whom by force of the Marriage she hath already subjected herself. Some Writers therefore think they have done sufficiently when they tell us, that the Father hath an absolute Dominion over his Child, because he got it, and is the cause of its being. By this Argument the Mother hath greater Right over the person of the Child, since all Naturalists hold the Child partakes more of her than of the Father; and she is besides at greater pain and trouble, both in the bearing, bringing it forth, nursing and breeding it up. But if it be answered, that the Man being Master of his Wife, is by the Contract so likewise of her Issue: Then it follows, that this power of the Father does not commence barely from Generation, but is acquired from the Contract of Marriage; which (till I meet with some reason to the contrary) I see not why it might not be so agreed by the Contracts, that the Father should not dispose of the Children without the Mothers consent: Since we see it often so agreed in the Marriages of Soveraign Princes, who are always supposed to be in the state of Nature, in respect to each other.Vid. Articles of Marriage between King Philip and Queen Mary, in Godwin’s Annals, An. 1554. Thuanus, Lib. IX. So likewise where a Subject marries his Queen, as the Lord Darnley’s Marriage with Mary Qu. of Scotland, the Soveraignty, and consequently the Power over the Children to be born remained entirely in Her. Yet though I will not deny, but some Gratitude and Acknwledgment is due from Children to Parents, even for this, that they did enter into the state of Marriage for their generation, and were the occasion of their Being: Yet I do not see, how by this alone a Father acquires an absolute power and dominion over the person of the Child, to dispose of it as he thinks fit: Since Parents acting here only as Natural, and not Moral Agents, they are not the voluntary Causes of its generation: Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children, upon so slight a foundation.
We must therefore trace this Right of Fathers over his Children to a more true original than any of these. Since then all the Laws of Nature, or Reason, are intended for one end or effect, viz. the common good and preservation of Mankinde; and that Marriage is no otherwise a Duty, than as by the propagation of our Species it conduces to, without the help and assistance of others; and that the Parents entred into this state of Marriage for the procreation of Children: both the Instinct of Nature and Law of Reason dictate, that they are obliged to take care of and provide for that Child, which they as subordinate Causes have produced; as being those on whom God hath imposed this Duty, which is much greater than that of Generation: for now the world is sufficiently peopled, it may be doubted, whether any person is obliged to Marry, further than it may consist with their conveniency, or course of Life. But Parents, when they are Married, are tyed by the Laws of Nature to take care of the Children. Therefore I suppose the highest Right of Parents in their Children, doth arise merely from their discharge of this great Duty of Education, as may appear from this Instance, Suppose the Parents not being willing to undertake the trouble of breeding up the Child, do either expose it, or pass over their Right in it to another, assoon as it is born; I desire to know if the person that finds this Child, or he to whom it is assigned, breed it up until it come to have the use of Reason, what Duty this Child can owe his Parents, if they are made known to him? Certainly, all the obligation he can have to them, must be upon the score of their begetting him; which how small that is, you may observe from what hath been said before: nor can the Parents claim any further Right in this Child, since by their exposing and granting it away, they renounced all the Interest they could have in it; so that the Duty and Gratitude he should have owed them, had they taken upon them the care and trouble of breeding him up, is now due to his Foster-Father or Mother, who took care of him until he was able to shift for himself. From whence it is evident, that the highest Right which Parents can have in their Children, is not meerly natural, from generation; but acquir’d by their performance of that nobler part of their Duty. And so the highest Obedience which Children owe their Patents, proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents, for the trouble and care they put them to in their Education.
Having now, I hope, found out the Original of Parents Right and Interest in their Children, and the chief ground of their Gratitude and Duty to their Parents; we will now proceed to the Second Point proposed, and consider what kinde of Right this is, and how far it extends. Since therefore the Father’s greatest interest in his Child proceeds from his having bred it up, and taken care of it, and that this Duty is founded on that great Law of Nature, that every Man ought to endeavour the common good of Mankinde, which he performs, as far as lies in his power, in breeding up, and taking care of his Child; it follows, that this right in the Child, or power over it, extends no farther than as it conduces to this end, that is, the good and preservation thereof: and when this Rule is transgressed, the Right ceases. For God hath not delivered one man into the power of another, merely to be tyrannized over at his pleasure; but that the person who hath this Authority, may use it for the good of those he governs. And herein lies the difference between the Interest which a Father hath in his Children, and that property which he hath in his Horses or Slaves; since his right to the former extends only to those things that conduce to their Good and Benefit; but in the other he hath no other consideration, but the profit he may reap from their labour and service, being under no other obligation but that of Humanity, and of using them as becomes a goodnatur’d and merciful man; yet still considering and intending his own advantage, as the principal end of his keeping of them. Whereas in his Children he is chiefly to design their good and advantage, as far as lies in his power, without ruining himself; and though he justly may make use of their labour and service while they continue as part of his Family; yet it is not for the same end alone that he uses his Horses or Slaves, but that his Children being bred up in a constant course of Industry, may be the better able either to get their own living, or else to spend their time as they ought to do, without falling into the Vices of Idleness or Debauchery. So that it is evident, the Father has no more right over the Life of his Child than another man; being as much answerable to God if he abuse this Right of a Father, in killing his innocent Son, as if another had done it. Neither hath he from the same Principles any right to maim or castrate his Child, (as this Author allows him to do, in his Directions for Obedience;) much less fell him for a Slave: Therefore it is no part of the Law of Nature, (unless he cannot otherwise provide for it) but of the Roman, or Civil-Law, that a Father should have power to sell his Son three times. For the Father is appointed by God to meliorate the condition of his Child, but not to make it worse; since it is not himself, but God that properly gave him his being. So that I hope I have sufficiently proved there is a great difference between a Child and a Slave, or a Servant for Life, though this Authour will have them in the state of Nature to be all one.
But, for the better clearing of this point, how far the power of Parents over their Children extends, I think we may very well divide (as Grotius does) the life of the Child into three periods or ages.De J. B. l. 2. c. 5. § 2. The first is the time of imperfect judgment, or before the Child comes to be able to exercise his Reason. The second is the period of perfect Judgment, yet whilst the Child still continues part of his Fathers Family. The third is after he hath left his Father’s, and either enters into another Family, or sets up a Family himself. In the first Period, all the actions of Children are under the absolute dominion of their Parents: for since they have not the use of Reason, nor are able to judge what is good or bad for themselves, they could not grow up nor be preserved, unless their Parents judged for them what means conduced to this end; yet this power is still to be directed for the principal end, the good and preservation of the Child. In the second Period, when they are of mature Judgment, yet continue part of their Fathers Family, they are still under their Fathers command, and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns; and in both these Ages the Father hath a power to set his Children to work, as well to enable them to get their own Living, as to recompence himself for the pains and care he hath taken, and the charge he may have bin at in their Education. For though he were obliged by the Law of Nature to breed up his Children, yet there is no reason but he may make use of their labour, as a natural recompence for his trouble. And in this Period the Father hath power to correct his Son, if he prove negligent, or disobedient; since this Correction is for his advantage, to make him more careful and diligent another time, and to subdue the stubbornness of his Will: But in other actions the Children have a power of acting freely, yet still with respect of gratifying and pleasing their Parents, to whom they are obliged for their Being and Education, since without their care they could not have attained to that age. But since this Duty is not by force of any absolute Subjection, but only of Piety, Gratitude and Observance, it does not make void any act, though done contrary to those Duties, as Marriage, and the like; for the gift of a thing is not therefore void, though made contrary to the Rule of Prudence and Frugality. In the third Period, they are in all actions free, and at their own dispose; yet still under those obligations of Gratitude, Piety and Observance toward their Parents as their greatest Benefactors, since if that they have well discharged their Duty toward their Children, they can never in their whole lives sufficiently recompence so great benefits as they have received from them.
But it seems the Authour is not satisfied with these distinctions, but saies, He cannot conceive, how in any case Children can ever naturally have any power or moral Faculty of doing what they please, without their Parents leave; since they are always bound to study to please them.Observations on Grotius de J. B. p. 62.And though by the Laws of some Nations, Children when they attain to years of discretion, have Power and Liberty in many actions, yet this Liberty is granted them by positive humane Laws only, which are made by the Supreme Fatherly Power of Princes, who regulate, limit, or assume the Authority of Inferiour Fathers, for the publick benefit of the Commonwealth: So that naturally the Power of Parents over their Children never ceaseth by any separation, but only by the permission of the transcendent Fatherly Power of the Supreme Prince, Children may be dispensed with, or priviledged in some cases from obedience to subordinate Parents.
For my part, I see no reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary: For he only tells us, He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please, without their Fathers leave; and that naturally the Power of Parents never ceaseth by any separation, &c. but gives us no other reason, than that they are always bound to study to please them. As if this obligation of Gratitude and Complacency, did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children, and an absolute power over them in all cases whatsoever, so that Children shall have no Right left to consult their own good or preservation, in any case whatsoever, farther than the Father pleases.Vid. Bodin de Rep. l. 1. c. 4. As for Bodin, and divers others that have writ on this subject, they do no more than follow others, who have asserted this Absolute Power, upon no other grounds than the Jewish or Roman Municipal Laws; but have never troubled themselves to look into the true Original of Paternal Authority, or Filial Subjection, according to the Laws of Nature or Reason. And most Treatises of this subject being commonly written by Fathers, they have been very full in setting forth their own Power and Authority over their Children; but have said little or nothing of the Rights of Children, in the state of Nature, towards their Parents.Loc. sup. laudar. Therefore Bodin thinks he hath done enough in supposing that if a Father is wise, and not mad, he will never kill his Son without cause, since he will never correct him without he deserve it; and that therefore the Civil Law supposes, that the Will of the Parents in managing the concerns of their Children, is void of all Fraud; and that they will rather violate all Divine and Humane Laws, than not endeavour to make their Children both rich and honourable: And from those instances out of the Roman Law, supposes that Parents cannot so much as will any thing to their Childrens prejudice, or so much as abuse this Fatherly Power of Life and Death: And therefore thinks he hath sufficiently answered the Objection he makes, that there have been some Parents, who have abused this power so far, as to put their Children to Death without cause. He says, They give us no Examples to the contrary: And supposing this to have sometimes fallen out, must therefore Legislators alter a wholsome Law, because some persons may abuse it?
But if we consider what Bodin hath here said, we shall finde every one of his Suppositions false: For, 1. he supposes it to be the Right of all Fathers, by the Law of Nature, to have an absolute power over the lives and persons of their Children. 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point. 3. That Fathers do seldom or never abuse this power. 4. That if they do abuse it, yet it is better to leave it in their hands, than to abrogate it or retrench it. The falseness of all which Assertions, I either have already, or else shall hereafter make manifest: Only I shall remark thus much at present, That upon Bodin’s principle, women that murder their Bastards would have a good time on’t, because having no Husbands, they have full power over the Life of their Children; and there is no reason that it should be retrencht by any positive Laws, because some offend against it. But however, this Argument of Bodin’s would do our Author’s cause no good: for if Parents are to be trusted with this absolute power over their Children, because of the natural affection they are always supposed to bear them; then Princes ought not to be trusted with it, since none but Parents themselves can have this natural affection towards their Children; Princes (as the Author grants) having this power onely as representing these Parents. Whereas Parentage is a natural Relation, and neither can be created nor assigned farther than the Civil Laws of the Country have appointed; and therefore there can be no adopted Son by the Law of Nature, since Adoption arises chiefly from the promise and consent of the person adopted, and partly from the Authority of the Civil Law, or Municipal Law of the Commonwealth: So that in relation to Princes, upon this Reason of Bodin’s, cessante causa, cessat effectus. But indeed Bodin never dreamt of this fine Notion of our Author’s, that all Monarchs were not onely Heads, but Fathers of their people, or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino. But I shall trouble my self no farther with him at present, but shall proceed to consider this point of absolute Obedience a little farther.
I suppose the Author (as any sober man else) would grant, that Children are not obliged so much as to attempt to perform the commands of their Parents, in case they evidently appear impossible or extravagant, such as a Father may give when he is in a fit of drunkenness, madness, or sudden rage, which is all one with madness; and of this who can judge, but the Children who are to perform these Commands? And in this case no man will deny but it is lawful for the Children to hold, nay binde their mad or drunken Parents, in case they cannot otherwise hinder them from doing mischief, or killing either themselves, their Mothers, or Brethren. So that though they may do this from that natural love & charity which all men in the state of nature ought to shew toward each other, yet they may likewise justific the doing of it as Children, who ought to have a greater concern for the good and preservation of their Parents, than meer strangers, and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations; this being for the Fathers good and preservation, and that for which he hath cause to thank them when he comes to himself. And if it be said, that the Son may then refuse his Fathers Commands, or resist them, pretending he is mad, drunk, or in a rage, when he really is not, and thereby take occasion to obey his Father no farther than he pleases: to this I answer, That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned, or else onely pretends that he thinks so, when really he does not. If in the first case he erre in his judgment, and the ignorance did not proceed from his own fault (either of passion, prejudice, or too slight an esteem of his Fathers understanding) he is not culpable, though he make such a false judgment of his Fathers actions: for God considering onely the sincerity of the heart, does not require of any man more than he is able to perform. But if on the other side the Son play the Hypocrite, and refuse his Parents Commands, pretending they are mad or drunk, when really they are not, he is without doubt doubly guilty both, of Hypocrisie and Disobedience. But this does not hinder Children in the state of Nature from judging of the reasonableness or lawfulness of their Parents Commands, and of the condition they are in when they gave them: for otherwise a Child ought to be of his Fathers Religion, though it were Idolatry, if he commanded it; or were obliged to break any of the Laws of Nature, if this Obedience were absolute. And it is a lesser evil that the Commands of Parents should be disobeyed, nay, sometimes their persons resisted, than that they should make a Right to command or do unreasonable and unlawful things in a fit of madness, drunkenness, or passion, destroy either themselves or others.
But it may be replied, that though Fathers in the state of Nature have no Right to act unjustly or cruelly toward their Children, or to command such unlawful or unreasonable things; yet however they are onely answerable to God for so doing; and there is out of a Commonwealth no superiour power that can question the Fathers actions: for since his Children are committed by God to his care, he onely is answerable for them, and for his actions towards them, since no other man hath any interest or concern in them but himself. So that if he kill, maim, abuse, or sell his Son, there is no man that hath Right to revenge, punish, or call him to an account for so doing; and if no others that are his equals, much less his Wife and Children, who are so much his Inferiours, and who ought in all things to be obedient to his Will. Therefore this Power, though it be not absolute in respect of God, yet is so in respect of his Wife and Children: and so in all cases where the Children cannot yield an active Obedience to their Fathers commands, they are notwithstanding obliged (by the Law of God; See Ephes. 6. 1. Colos. 3. 20.) to a passive one; and patiently to submit to whatever evils or punishments he pleases to inflict, though it were to the loss of Life itself.
To which I answer, That though it is true, a Father in the state of Nature, and considered as the head of a separate Family, hath no Superiour but God, and consequently no other person whatsoever hath any Authority or Right to call him to an account, and punish him for this abuse of his paternal Power; yet it doth not follow, that such absolute submission is therefore due from the Children, as does oblige them either to an active or a passive Obedience in all cases to the Fathers Will, so that they neither may, nor ought to defend themselves in any circumstance whatsoever. There is a great deal of difference (in the state of Nature) between calling a man to an account as a Superiour, and defending a mans self as an equal. For a man in this state hath a right to this latter against all men that assault him, by the principle of Self-preservation: But no man hath a right to the former, but onely in respect of those over whom he hath an Authority, either granted him by God, or conferr’d upon him by the consent of other men. So that the evils which an Aggressor, or Wrong-doer, suffers from him he injured, though in respect of God the Supreme Lawgiver they may be natural Punishments ordained by him, to deter men from violating the Laws of Nature, yet they are not so in regard of the Person who inflicts them. For God may sometimes appoint those for the Instruments of his Justice, who otherwise do injury to the person punished; as in the case of Absalom’s Rebellion against his Father David. So that in this case the evils the wrong-doer suffers are not properly Punishments, but necessary Consequences of his Violence and Injustice; and in respect of the Inflicter, are but necessary means of his preservation. So that if a Son have any Right to defend himself in what belongs to him from the unjust violence of his Father, he doth not act as his Superiour; but in this case as his Equal, as he is indeed in all the Rights of Nature, considered only as a Man; Such as are a Right to live, and to preserve himself, and to use all lawful means for that end. Therefore since, as I have already shown, that a Father hath no higher Right or Authority from God over the person of his Child, but as it tends to his good and preservation, or as it conduces to the great end of Nature, the common Good and preservation of Mankinde: So when the Father transgresses this Authority, his Right ceases; and when that ceases, the Sons Right to preserve himself (and in that, to pursue that great end) begins to take place. Therefore out of a Civil state, if a Father will endeavour evidently, without any just cause, to take away his Sons Life, I think the Son may in this case, if he cannot otherwise escape nor avoid it, and that his Father will not be pacified neither with his submission nor entreaty, defend himself against his Father, not with a design to kill him, but purely to preserve his own Life; and if in this case the Father happen to be kill’d, I think his Blood is upon his own head. But if any object to me the Example of Isaac’s submission to his Father, when he intended to sacrifice him: To this I answer, that as this act of Abraham’s is not to be taken as an Example for other Fathers, so neither does the Example of Isaac oblige other Sons. For as Abraham had no right to offer up his Son, but by God’s express Will; so it is rational to suppose, that Isaac being then (as Chronologers make him) about nineteen or twenty years of Age, and able to carry wood enough upon his back to consume the Sacrifice, and of years to ask where the Lamb was for the Offering; was also instructed by his Father of the cause of his dealing so with him: and then the submission was not paid to his Father’s, but to God’s Will, whom he was perswaded would have it so. But if any man yet doubts, whether resistance in such a case were lawful, I leave it to his own Conscience, whether if his Father and he were out of any civil estate, whose assistance he might implore, he would lie still, and suffer his Father to cut his throat, only because he had a minde to it, or pretended revelation for it.
So likewise if a Father in this state should go about to violate his Sons Wife in his presence, or to kill her, or his Grandchildren, I suppose he may as lawfully use the same means for their preservation, (if he cannot otherwise obtain it) as he might for his own; since they are delivered to his charge, and that he only is answerable for them. For since the Father doth not acquire any property in the Sons person, either by begetting or educating him, much less ought he to have it over those the Son hath begotten.
But though Children may have this Right of defending their own Lives, or those of their Wives and Children, from their Fathers unjust violence, when they can by no means else be preserved; Yet I would not be here understood to give Children this right of resisting upon any less occasion; as if the Father should only go about to correct his Son, though without just cause, it were therefore lawful for him to resist or beat his Father. For we are obliged by the Law of Christ to bear smaller Injuries from others, much more from a Father; neither yet would I give them any right to continue this state of War, and to revenge upon their Parents the Injuries they have formerly received at their hands. For all Revenge, taken in this sence, as a satisfaction of the minde in returning of an evil or injury already received, without any respect to a mans own preservation, or the good of the person that did the wrong, is unlawful even in the state of Nature. Therefore this returning Evil for Evil, which some improperly call Revenge, is only justifiable for one or both of these ends; either to make the party that hath done the Injury sensible of his Errour, and seeing the Follies and Inconveniences of it, to alter his minde, and resolve to do so no more; or as it may conduce to a mans own preservation for the future, and be a warning to others not to injure him in like manner, since they see he will not take injuries tamely. But all this is still left to a mans own prudence, how far he will pass them by: And he is certainly obliged to leave off returning them, assoon as he can be safe without it; since otherwise quarrels would be perpetual. Neither ought one, who hath been highly obliged to a man perhaps for his life, to return him evil for evil, since scarce any Injury being great enough to cancel so great an Obligation. Therefore since a Father, who hath truely performed his Duty, is the greatest Benefactor we can imagine in this life; so no man ought to revenge an Injury, though never so great, upon him; since it is not only undutiful, but ungrateful, and cannot serve either of those two ends for which alone this returning evil for evil is allowable. For first, it cannot make the Father see his fault; since this correction being from a Son whom he looks upon as one highly obliged to him, and so much his inferior, will rather serve to exasperate than amend him. Secondly, Neither can this bearing of the Injury encourage others to attempt doing the like; since all that know the case, will likewise consider the person that did the wrong. So that Patience alone is the only lawful means to make the Father see his Errour, and be reconciled to his Child, who ought to embrace it assoon as the Father offers it.
But as for the places of Scripture brought for absolute Obedience to Parents; viz. the fourth Commandment, Honour thy Father and thy Mother. Children, obey your Parents in the Lord, Ephes. 6. 1, 2. and Children, obey your Parents in all things, Col. 3. 20. God did not intend here to give us any new Law or Precept concerning this Duty, but to confirm and explain the fifth Commandment; as that was but a confirmation of the Law of Nature, by which men were obliged to reverence and obey their Parents, long before that Law was given. Therefore since the Laws of Nature (which are but Rules of right Reason for the good of Mankinde) are the foundation of this Commandment, and of all those commands in the New Testament, they are still to be interpreted according to that Rule. Neither are other places of Scripture understood in any other sence; such as are those of turning the right Cheek, of giving away a mans Coat to him that would go to Law, and the like: all which we are not to Interpret Literally, but according to Reason.See Grotius and Dr. Hammond’s Annot. upon these places. And so are likewise these words of St. Paul to be understood, Children, obey your Parents inall things; that is, in all things reasonable and lawful. And this sence must be allowed of, or else Children were bound to obey all commands of their Parents, whether unlawful or lawful; being comprehended under this general word All. Nor will the distinction of an active or passive Obedience help in this case; for passive Obedience cannot be the end of the Fathers command, and consequently his will is not performed in suffering; since no Father can be so unreasonably cruel, as to command a thing meerly because he would have occasion to punish his Son whom he thinks must not resist him. Neither do these places appoint a Son when an infant, a man of full age, and perhaps an old man of threescore, to be all governed the same way, or that the same Obedience is required of them all.
And this brings me to a fuller Answer to the Author’s Argument, and to shew that though Children are indeed always bound in Gratitude to please their Parents (as far as they are able without ruining themselves) and to pay a great reverence to them; yet that this submission is not an absolute subjection, but is to be limited according to the Rules of right Reason or Prudence. And to prove this, I will produce instances from the case of Adam’s Children, since the Author allows no Father to have had a larger authority than himself: We will therefore consider in the first place, Adam’s power as a Father, in respect of his Sons marriage. Suppose then that he had commanded one of his Sons never to marry at all, certainly this command would have been void, since then it had been in Adam’s power to have frustrated Gods Command to mankind of increase and multiply, and replenish the Earth; which was not spoken to Adam and Eve alone, since they could not do it in their persons, but to all mankind represented in them. And likewise Adam had been the occasion of his Sons incontinency, if he had lain with any of his Sisters before marriage. Secondly, Suppose Adam had commanded Abel to marry one of his Sisters (that being the onely means then appointed to propagate mankind) which he could not love, can any man think that he had been obliged to do it? Certainly no: for it would have been a greater sin to marry a wife he knew before-hand he could not live with, than to disobey his Father; for else how could this be true, Therefore shall a man leave Father and Mother, and cleave to his Wife? Since then Adam could not force his Sons affections, but onely recommend such of his Sisters as he thought would best suit with his humour, therefore if the Son could not live without marriage, and that Adam could not force a Wife upon him, it was most reasonable that he should chuse a Wife for himself. And to come to that other great point, that the Son can never separate himself from his Fathers Family nor subjection, as his Lord and Master, without his consent: Suppose then that Adam had been so cruel and unnatural (as some Fathers are) and being sensible of the profit he received from his Sons labours, would never have given them leave to have left his Family, and have set up for themselves, nor to have had any thing of their own, but (onely allowing them and their Wives a bare subsistance) have kept them like slaves as long as they lived; the Author I suppose would reply, That he might have done so if he had pleased; and that the Sons had no lawful means to help themselves, since he onely was Judge when or whether ever it was fit to set them free or no.
But I desire to know whether Adam had this power by a natural Right, or an acquired; not by the latter: for I have already proved, that neither Generation nor Possession can confer an absolute Right over the person of another: Nor yet could he have it by the Sons consent; for they would never give their consent to such an absolute slavish subjection. Nor yet could he have any such Right by the revealed. Will of God, since I have also proved that such an absolute subjection is nowhere requir’d by him in Scripture.
But now to return to the acquired Right of Education, neither can that confer so absolute a power over any mans person, as that therefore he should be a slave to his Fosterer as long as he liv’d; since admitting that the Father, or other person that takes upon him that care, may perhaps justly claim a Right in the service or labour of the Childe, to satisfie them for their trouble and charge in bringing him up: Yet it does not therefore follow, that this service is due as long as the Childe lives, but rather until such time as they can make his labour satisfie them for their charge and trouble in keeping him; which may very well be by that time the Child attains to twenty five years of age at farthest. And there are those that have offered to breed up and maintain all the Foundlings and Bastard-children in England, if they may be bound to serve them until about that age. So that I see no reason why a few years Education should give any man a Right over another person as long as he lived. But if it be urged that the Childe owed his life to his Father or Fosterer, since without his assistance he must have perisht, and therefore the service of the Childs whole life is but little enough to recompence it; to this I answer, That the Parents are under an absolute obligation, by the Laws of God and Nature, to breed up their Childe; and they sin if they do not perform it as they ought: the end of a Father not being chiefly for the breeding up and preservation of the Child, and therefore there is no reason he should acquire such a property in him, meerly because he did his duty; and the intent of a Father being to better the condition of his Son, and not to make it worse, I doubt whether an absolute or perpetual Servitude, or Death it self, were the better bargain; and if this Right will not hold for the Father himself, much less will it for a Fosterer, since he is likewise obliged by the Laws of Nature and Humanity, if he be able, to breed up the Child he finds, and not to let it perish. So that the advantage he may make of the Child ought not to be the principal end of his undertaking, but the doing of good to mankind; and the advantage is to be considered onely as an encouragement, not as the onely motive to his duty, since he is obliged to do the same thing, though he were sure the Childe would either die or be taken away from him, before it could be with him half long enough to satisfie him. Neither does this reason hold true, according to the Scripture-rules of Gratitude, that a man hath Right to exact of one to whom he hath done a Courtesie, or bestowed a Benefit, a Return as great as the Benefit bestowed; since this were not beneficence, but meer bartering or exchange: And a man who had his life saved by anothers assistance (suppose by pulling him out of the water) was obliged by this principle to leave his life at his disposal ever after.
Therefore I see no reason, from all that hath yet been said, why a Son when he comes to be a man able to shift for himself, may not in the state of nature marry, and separate himself from his fathers Family, even without his Fathers consent, if he cannot otherwise obtain his liberty by his entreaty and all fair means: Not but that the Father may, if he please, disinherit his Son for so doing, or for marrying without his consent, since every man is free to dispose of his own upon what conditions he thinks fit. And the Son was to have considered before-hand which he valued most, his own Liberty, or his Fathers kindness, and the hopes of his share of his Estate after his death.
But I now come to the Author’s main Argument from Scripture-Examples: That the Patriarchs, by a Right derived from Adam, did exercise as Heads of their respective Families, a dominion as absolute as that of any Monarch: And so instances in Thamar brought out to be burnt by her Father-in-law Judah: Touching War, Abram’s commanding an Army of 318 Souldiers of his own Family; Esau’s meeting his Brother with 400 men at Arms: For matter of Peace, Abram’s making a League with Abimelech: And that these acts of judging in capital Crimes, of making War and Peace, are the chiefest marks of Soveraignty that are found in a Monarchy. All which I shall endeavour to answer. First, The instance of Judah rather makes against him; for he confines this power before to the chief Father of the Family, and will never have Children to be free from subjection to their Fathers: whereas in this case Judah, as Head of his own Family, exercised an absolute power of Life and Death, and so was free from subjection to his Father Jacob, who was then living. And suppose (as the Text, Gen. 38. expresses) Judah went down from his Brethren to a certain Adullamite, and there married, and set up a distinct Family; yet this will not help the Author, since (p. 33.) he will not allow the Fatherly Authority to be confined to one Family, if the Families were at such a distance as they might receive their fathers commands; which lies upon him to prove: And therefore this subjection was not perpetual. Secondly, I shall shew by another Example, that the Head of a Family hath not absolute power of the lives of his Children and Grandchildren; and that is from Reuben’s pathetical Speech, Gen. 42. to his Father Jacob, when he refused to send Benjamin with him into Egypt; Slay my two sons (says he) if I bring him not unto thee. Now if Jacob had this absolute power as a Father, it had been impertinent in Reuben to have spoke thus, since he knew his Father had power to slay his Sons, if he thought fit, whether he gave him such an authority or not. But if it be replied, that Jacob when his Sons married might set them at liberty, and so give them power of Life and Death; that is, make them absolute in their respective Families: This is gratis dictum, and no proof brought of it out of Scripture, and therefore may as well be otherwise: Nor is it likely that Jacob should thus manumit his Sons, since it is apparent they did not then set up distinct Families; for we finde Jacob still commanding them, as Head of the Family, to go down and buy Corn in Egypt, saying, Go down and buy us (that is, the whole Family, whereof they were Members) a little food. And yet these Sons did not think their Fathers command so absolute, but that they tell him plainly, they will not go down unless he send Benjamin with them.
As for the other Examples of Abram’s exercising the full power of a Prince in making War and Peace, I will not deny that the Heads of separate Families, being out of Commonwealths, have many things analogous to them, though they are not Commonwealths themselves: And the reason why I do not allow them to be so, is, because the ends of a Family and a Commonwealth are divers: and so many parts of a Monarchical Empire are not to be found in Families, yet the Heads of such Families may notwithstanding exercise a power of Life and Death in great Offences, and also of making War and Peace: And this being for the good of the Family they govern, and by their implyed consents, no body will contradict him in the exercise of this power. But this being matter of fact, does not prove an absolute and unquestionable Right in the Father of such a Family, of doing whatsoever he please, and that no Member of the Family hath power in any case to contradict his will; for it is rational to conceive that this Father of a Family having had an authority over his Children and Servants (born perhaps in his house) from their very Infancy, and if he be a wise and a good man, and hath carried himself as a good Father or Master ought to do toward them, should even by their consents (as knowing none more worthy than himself) retain the exercise of that Authority after they are gown up to be men; in which he cannot be contradicted, without disorder and mischief to the whole Family: So that indeed this submission of the Children and Servants, is by a tacite consent to obey the Father or Master in all things tending to the common good of the Family. But this proves not this absolute despotick power the Author contends for, but onely the most reasonable way of acting for the Families good, and whilst the Father exercises this Authority onely for that end, which when he transgresses, his Right to govern ceases: for if this Author would have but considered the state of some parts of Africa, he should have found, that where the Father will exercise this absolute power, and sell his Children for slaves, the Children make as little scruple (where they are strong enough) to put the same trick upon their Fathers: Nor can they be justly blamed for so doing, until any man can shew me that the Father hath some better Right than meer Custom or Power.
I shall now proceed to the consideration of those other places he produces out of Scripture, for the natural Right of Fathers to be Kings over their Descendants.Patriarcha, p. 16.First, As for the example of Nimrod, that makes against him; for here the Grandson of Ham, who ought to have been a Servant to the Children of Shem and Japhet, interrupting this Paternal Empire, domineers and tyrannizes not onely over his own Family, but the Descendants of the elder Brethren. But Sir Walter Rawleigh (of which opinion the Author himself is) will have him to be Lord over his own Family, by Right of Succession; but to enlarge his Empire against Right, by seizing violently on the Rights of other Lords of Families.
But however, after the confusion of Tongues, the Author will have it revive again; and the distinct Nations thereupon erected, were not confused Multitudes without Heads or Governours, and at liberty to chuse what Governours they pleased; but they were distinct Families which had Fathers for Rulers over them: whereby it plainly appears, that even in this confusion God was careful to preserve the Fatherly Authority, by distributing the diversity of Languages according to the diversity of Families. For so it appears by the Text, Gen. 10. 5. 20. 22.
But these places will not prove what the Author quotes them for, viz. the Monarchical or Kingly power of Fathers: for neither does the Scripture or Josephus mention, that this division of the World by Noah’s Posterity was performed by the Fathers of these Families as absolute Monarchs; but it rather seems that their Children and Descendants followed them as Volunteers, as retaining a Reverence and Affection to their persons for their great age, experience, and care of their Families: Which **Sir Will. Temple’s Essay of Government, p. 67. an ingenious modern Author conceives to be the natural original of all Governments, springing from a tacite deference to the Authority of one single person. And of this opinion is excellent Pufendorf.
And of this kind were those first Kings which Aristotle calls Heroical, whom the People did obey of their own accord, because they deserved well of them, and eitherby teaching them Arts, or by warring for them, or by gathering them together when they were dispersed, or by dividing Lands among them. Secondly, If it were true that these Fathers of Families were so many absolute Kings, yet it quite destroys the Author’s Hypothesis, who will have but one true Heir to Adam, who if he could be known, had a natural Right to be Monarch of the whole world. And though Kings now (Patriarch. p. 19.) are not the natural Parents of their Subjects, yet they all either are, or are to be reputed Heirs to those first Progenitors, who were at first natural Parents of the People, and in their right succeed to the exercise of Supreme Jurisdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers. Whereas we see here no such right of Eldership observed, neither among the Sons of Noah nor their descendants; but every one, as appears from the words of the Text, was an independant Head & Leader of his own Family: by these were the Isles of the Gentiles divided, &c. and by these, viz. the descendants of Shem, were the Nations divided, &c. So likewise the other places he brings concerning the Sons of Ishmael and Esau, do destroy the Authours notion of an Heir to the Authority of the Father, or that any Son is more Lord of his Brethren than another. For all the Sons of Esau and Ishmael are reckon’d as so many independant Princes, or Dukes, and Lords of distinct Territories, without any Superiority in the eldest Son, who ought by the Authours Principle to have been absolute Lord over the rest: And if these could divide themselves into as many distinct Governments as there were Sons, Why might not they do so in infinitum? And then there could never be any common Prince or Monarch set over them all, but by Force or Conquest, or else by Election; either of which destroys the notion of the Natural Right of Eldership. And as for the places he brings to prove it; 1. Gods words to Gain concerning Abel, will not do it, His desires shall be subject unto thee, and thou shalt rule over him. For first, this might be spoken only personally to Cain, and not to give a Right to all Eldest Sons. Secondly, the words do not signifie an absolute Despotick Power, but a ruling or governing by perswasion or fair means; as when a man is ruled, that is, advised by another in his concerns. Then as for the blessing upon Jacob by his Father Isaac, Be Lord over thy Brethren, and let the Sons of thy Mother bow before thee, ’twas never litterally fulfilled. For Jacob was never Lord over Esau, who was a Prince of Mount Seir in Jacob’s life-time, whilst Jacob was at best but Lord of his own family. And as for bowing and other Rights of Superiority, we read [Gen. 33. 3.] that Jacob, at his Interview with his Brother Esau, called him Lord, and bowed seven times to the ground before he came to him. So that this Text is no more than a Prophecy, to shew why the Jews, or descendents of Jacob, should have Right in After-times to rule over the Edomites, or Posterity of Esau. Lastly, this Example makes against the Authour: for it seems it is not the Eldest Son, but whom the Father pleases to appoint, is Heir after his death: Since here Esau looses his Birth right by his own act, but chiefly by his Fathers Will.
Yet if after all, some will urge from the Principles I have laid down, that it seems more to conduce to the happiness and peace of Families, and in that to the great end I have before laid down, the common good of Mankinde, rather to allow this absolute Power of Life and Death to Parents over their Children, and an absolute Subjection to them as long as they live, since Parents do usually take that care to breed up their Children, and to have that tender Affection towards them, that they will seldom take away their Lives, or sell them for Slaves, or keep them so themselves, unless there be very great cause; of which the Father only ought to be Judge, since it being the nature of most Children to be apt to contradict and disobey their Fathers commands, or perhaps resist them, pretending they would kill them, when they only go about to give them due correction; And since most young people hate restraint, and love to be gadding abroad, they having a Right by these Principles to judge when they are able to shift for themselves, would take any slight pretence to run away from their Father assoon as they were grown pretty big, and so perhaps leave their Parents in their old Age, when they had no body to take care of them: whereby nothing but confusion and quarrels would happen in Families, great mischief to the Parents, and often ruine to the Children; who being often opiniatred, and self-will’d, would think better of their own abilities than they really deserved. And therefore divers Nations seeing these great Inconveniencies, did by their Laws leave Parents the Power of Life and Death over their Children.See Patriarcha, p. 38. chap. 2.Such were (those the Author instances in) the Persians, Gauls, and many Nations in the West-Indies: And the Romans even in their Popular State had this Law in force: Which Power of Parents was ratified and amplified by the Laws of the XII Tables, enabling of Parents to sell their Children three times. And the Law of Moses gives full power to the Father to stone his disobedient Son, so it be done in presence of a Magistrate. And yet it did not belong to the Magistrate to inquire and examine the justness of the cause; but it was so ordained, lest the Father should in his Anger suddenly or secretly kill his Son.
To all which I answer, that since this Argument quits the natural Power of a Father by Generation, and only sticks to the acquired one of education, and appeals to the common good of Mankinde; I do acknowledge it is a better than any of the rest. Yet I think it is not true, that Parents in the state of Nature would more seldome abuse their power, than Children would this Natural Liberty I here allow them, of defending and providing for themselves in cases of extreme Danger and Necessity. For this Temptation to do ill is greater on the Fathers side, than that of the Children: For they looking on themselves as having an absolute and unquestionable power over them, and that they may deal with them as they please, are apt to think themselves slighted and disobeyed by their Children, perhaps on very light occasions; and their Passion often rises to that height (as not considering the Follies and Inconsiderateness of Youth) that they may, if Cholerick or Ill-natur’d, strike them with that which may either kill them, or else cripple or maim them; and perhaps out of an immoderate Anger, or being weary of them, murder them on purpose. And Fathers being more apt, as having oftner occasion to be angry with their Children, than their Children with them, it is evident to me, that in the state of Nature (where there is no Magistrate to keep the Father in awe) Fathers will be as apt to kill or maim their Children, as Children their Parents. And if the Fathers (as I said before) are intended for the good and preservation of their Child; and that where their Right ceases, the Childrens Right to preserve themselves takes place: It seems to conduce more to the general good of Mankinde, that the Children should make use of this last refuge of defending themselves, when they cannot otherwise preserve their Lives and Members, than that Fathers should have such an absolute Right to deal with them as they pleased, without any power in the Children to resist or defend themselves. So likewise Fathers being so much older, understand their own advantage better than their Children; and being somtimes more ill-natur’d, and often (by reason of their Age) more covetous than they, may be tempted to sell their Children for Slaves, whereby they may fall into a condition worse than Death itself; and may not the Son then endeavour to run away, or use all lawful means possible to escape so great a misery? Or if the Father will keep his Son as a Slave all the days of his life, without any hopes of ever being free? For when the Father dies, the Son (according to this Authour) is to be Servant to his Eldest Brother, or to whomever else his Father pleased to bequeath him. Is not the case the same? And as for the quiet of the Family, which is supposed to be preserved by the Sons absolute submission, rather than his resistance in any circumstance, I think it would rather increase Dissentions, by encouraging of Fathers to use their Power over their Children, not as Reason, but Drunkenness or Passion may impel them: Whereas this Right of Children in defending their Lives, and not being obliged to give them up at their Fathers pleasure, will rather make Parents act moderately and discreetly towards their Children, when they know they are not obliged to stay or bear with them upon other conditions, than that they may enjoy their Lives in safety, and the ordinary means thereof with some comfort. Not that I give Children any Right, as I said before, to disobey their Parents, or resist them upon every slight occasion; but rather to bear with their Infirmities, as far as it is possible; And to suffer divers Hardships and Inconveniencies from them, rather than to resust or leave them; considering the great obligation they owe them. So that I do not allow this Remedy, but in case of extreme Necessity, yet of which the Sufferer only in the state of Nature can be Judge; since in that state where there is no Umpire, (without both their consents) but God only, every man is Judge when his Life is in danger.
And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission, without any respect to this Right, then it would be his duty to give himself up to be robb’d or kill’d by any one who had the wickedness to attempt it; because himself being innocent, may go to Heaven; and the other being guilty of an intent to rob or murder, may be damned if he be killed. And besides, it would more conduce to the preservation of Mankinde, that but one man should be lost, whereas by resistance they may both perish. Yet I suppose no man is so sottish, as to hold he ought quit his own preservation in these cases; or if he do hold it for discourse sake, I am sure he would not be so mad as to observe it. For this were such an Argument, as to hold, Because some men may abuse that Law of Self-preservation to another mans destruction; Therefore it were unlawful to defend a mans self at all.
As for the Examples of those Nations and Commonwealths who have permitted Fathers to exercise a Despotick Power over their Children; The Law of Nature or right Reason, is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth, which are often different and contrary to each other. Therefore as to the Jewish Law, though I will not say it was contrary to the Law of Nature, yet it was extremely rigorous and severe in all its dispensations, and does not now oblige Christian Commonwealths in this particular, as in divers others, much less in the state of Nature. And as for the Romans, they saw the inconveniencies of this Absolute Power, and retrenched it by degrees, until it came to be no more than now with us, and in most Countreys of Europe. So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children, depending upon the Roman and Jewish Law, may be easily answered from these grounds.
Having, as I hope, clear’d this main point of Paternal Authority, and of Natural Obedience, without giving an extravagant power to Parents on the one hand to abuse their power, or a privilege to Children on the other side to be stubborn or disobedient to their Parents; If then this Paternal Authority extend farther than I have seated it, I shall own my self beholding to any Friend of the Authour’s, or his Opinions, to shew me my errour. But if they cannot, I desire they would consider, whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution, can extend farther than the natural Authority of Fathers, from whom they are supposed to derive it, and on which it is founded. And if it appear that Princes have such Power as our Fathers, then all that the Authour hath writ on this subject signifies just nothing.
Therefore I shall now proceed to examine the rest of his Principles; and shall I hope prove, that (supposing this Fatherly Power as absolute as the Authour fancies) yet that his Divine Absolute Monarchy cannot however be derived from thence.
The Authour seems to think it a Question very easie to be answered. If any one asks what comes of this Right of Fatherhood, in case the Crown, Fatherly power, escheat for want of an Heir, whether it fall to the People, or what else becomes of it?Patriarch. P. 20. To which his Answer is, That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir; for anHeir there is always. If Adam were still living, and now were ready to die, it is certain that there is but one Man, and but one in the world, who is next Heir; although the knowledge who should be that one Man be quite lost.
So that this fine Notion signifies nothing now, for Adam being dead, and his right Heir not to be known, it is all one as if he had none; since, for ought I know to the contrary, the Authors Footman may be the Man.Directions for Obedience, p. 69. But to help this, the Author hath found out a couple of Expedients, (such as they be;) The first is, That an Usurper of this Power, where the knowledge of the right Heir is lost, being in by possession, is to be taken and reputed for the true Heir, and is to be obeyed by them as their Father.Patriarch. p. 21. And if this will not do, he gives us another, and tells us, The Government in this case is not devolved upon the multitude; but the Kingly power escheats in such cases to the Fathers and independent Heads of Families: For every Kingdom is resolved into those parts of which it was first made.
Each of which we will examine in their turn. To begin with the former, let us see if it be so easie a thing as the Authour makes it, to know who was Adam’s, or any Monarch’s right Heir (setting the Municipal Laws of the Country aside;) so that the People cannot be excused of wilful Ignorance or Negligence, if they loose this knowledg. Where by the way I observe, that as easie a thing as it was to know who was Adam’s right Heir, and upon whom by the Laws of God and Nature the Crown is to descend, upon the Death of the Monarch; yet he no where positively answers this important Question: For sometimes he is to claim by descent, as in this instance of the Heir of Adam; sometimes by his Father’s last Will, as in the case of Noah’s Sons, according as the Examples out of Scripture do best serve his turn. So that I believe he did not either negligently or ignorantly avoid settling this point, because he might still have a hole left to creep out at, or else because he could do it no better than the Instances he brings would permit.
He says, [Direct. for Obedience, pag. 68.] A Son is always to live under the subjection of his Father, unless by Gods immediate appointment, or by the Grant or Death of his Father, he become himself possess’d of that Power to which he was subject.
By which words he seems to imply, that this Power is to descend to the Eldest Son, when his Father dies. So likewise in this Treatise we are now upon, [P. 12.] he says, Civil Power not only in general is by Divine Institution, but even the assignment of it specifically to the eldest Parents. By which words I suppose he means, (if any thing) eldest Sons; though I know not why he should limit it to Parents: for methinks it were very hard the eldest Son should forfeit his Right, in case he were not a Parent when his Father died. So likewise he tells us, [P. 19.] That these Heirs of this Fatherly Power, are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Father. Yet tells us not plainly which of the Sons is Heir; only says a little before, That when God made choice of any special Person to be King, he always intended that the Issue also should have the benefit thereof. Though this general Rule was false in the case of Saul, whose Children were disinherited by God to establish the Crown upon David and his Line. So uncertain things are Instances drawn from Scripture without any due consideration of the Reason of them.
But to return to the subject: I grant that it is not impossible but from the command of a Father of a Family, who hath divers other Families under him, there may spring a Civil Government, though the Fatherly Authority doth properly regard the Education of the Children, and the Masterly Power to encrease Riches: And though it is not changed barely by the great number of Children or Servants; yet the difference between them is not so wide, that there can be no transition from one to the other, unless a new Right of Soveraign Majesty be produced by God. For if a Father of a Family being provided of a great stock of Children and Slaves, will by way of Manumission permit them to enjoy their own Goods and Families apart, on that condition that they submit to his Government for their common Security; I do not see what is wanting to the making him a Prince, if he have strength sufficient to perform the ends of a Commonwealth. But he dying, and nominating a Successour, if his Sons will consent to him, and confirm his Will, they may if they please; if not, all of them, as in an Interregnum, may appoint what sort of Government they will have for the future. Nor will the Law of Nature be violated, if the youngest Son, having most Votes, should be elected in his Fathers stead.
I should be glad any man could demonstrate to me from the Laws of God and Nature, that Adam’s eldest Son was by the Right of Eldership to be Lord over his Brethren, without their Election or Consent, when their Father died. Indeed the Jewish Law allow’d a preheminence to the Elder Brother, and that he should have a double portion, and be reverenced by all his Brethren, exprest by this Phrase of, Let thy Mothers Sons bow before thee: But this proves not that as Eldest Son he had therefore a Right of exercising all that Authority, upon the Death of their Father, over his Brethren, which his Father had before: Neither had Jacob any such Right over Esau, though he sold his Birthright, or the eldest or any other Son of Jacob any such Right over his Brethren; for certainly God would not have abrogated it if they had. So that Jacob’s Authority as a Father, ended with his Life: and for any Despotick Propriety or Dominion over them, I have already proved that the Father has none in the state of Nature. Yet admitting he had, the Children notwithstanding would have been free at his Death. For Servitude being a mere personal Duty, due only to the person of him that acquired this Slave; when the person dies to whom he owed this subjection, the Slave is free in the state of Nature, unless the Lord of this Slave transferr’d his Right in him to another in his life-time; a mans Person not being like a brute beast, to be seiz’d by whoever can lay hold of him; he hath no longer any obligation to serve his Children, (unless he will make himself their Slave of his own accord.) But if it be answered, that the Father may bequeath this Right of Dominion over his Children at his Death, by his Will, to which of his Sons he pleased; and that he that is so constituted by their Father, is Lord over all the rest of his Brethren; and endeavour to prove this from Genesis the 9. vers. 25, 26, 27, where Noah cursing Canaan, because Ham his Father had derided his nakedness, says, He shall be a Servant unto his Brethren: I desire you would take notice, that this Answer quite gives up the Natural Right of the Heir, or Eldest Son. 2. I suppose this rather was a Prediction or Curse to be fulfilled in Canaan’s Posterity, than upon himself.Observat. on Grotius, p. 49, 50. For first, this Right was not given, as it ought to have been, over the Person of Ham the Offender, whom this Authour allows to have had an equal share with his Brethren in the division of the World, and so to have been in all Prerogatives equal with them. Neither doth he give this Right to one of them, but to both alike; saying both of Shem and Japhet, that Canaan should be their Servant: which could not be meant of his person, since that could not be divided by them both, who were like to live at so great a distance; therefore it can onely signifie, that his Descendants should be slaves to the others. And several Commentators upon this place, do suppose that Moses related this Curse of Noah upon Ham, onely to shew the Jews the Right they had to make slaves of the Canaanites, because they were descended from Canaan. And as for the Right of bequeathing slaves by Testament, it is much disputed whether by the Law of Nature Testaments have any force in this case; those that have written of it, being much divided about it in the state of Nature, since all Propriety in that state being but Occupancy or Possession, which ceases with the life of the Occupant. Therefore since a Testament commences onely from the Testators death, who as soon as he died, lost his Right in the Goods bequeathed, since the dead can have no interest in any thing; neither can the Legatee sustain the person of the Testator, since this Right ceased before that of the Legatees could begin. So that it seems to me at present, that the power of bequeathing either the persons of men or goods, was but a consequence of an absolute Propriety in things which arises from Compact in a Commonwealth, as I shall hereafter prove.
Therefore out of this State, a Will cannot bind the persons of the Children or Servants so bequeathed: And for this cause we find Abraham, Gen. 24. v. 2, 3. binding his Servant that ruled over his House, with an Oath not to take a Wife for his Son of the Daughters of the Land. And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt; because they doubted whether they could oblige them to do it by their Testament. But as for the Right of bequeathing Crowns or Kingdoms by Testament, as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution, and others become so by Custom; yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature, but proceeds purely from a continued Custom of the Kingdom, or Civil Law thereof; else why had not Henry VIII, or Edward VI, power to limit or bequeath the Crown to whom they pleased, as well as William the Conquerour? And to look into other Countries, what now renders Women uncapable of succeeding to the Crown of France, yet capable of inheriting that of England, Spain, and divers other Kingdoms of Europe, but the Customs or particular Constitutions of the Estates of these Kingdoms? which no Will or Testament can alter. What else hinders the Grand Seignior, that he cannot disinherit his eldest Son if he survive him, but the Custom of the Ottoman Empire?Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. And what is this Custom, but (as the Author himself acknowledges in the case of England) the Commom Law of the Country, which is said to be Common Custom? Thus to protect the Customs which the Vulgar shall chuse, is to protect the Common Laws of England. So that it was the Will of the People, and not the Prince alone, that made this a Law:Freeholders Inquest. p. 62. for if this Law of the Succession of the Crown depended upon his Will, then if he be an absolute Monarch, that (when sufficiently declared) being the onely Law, might alter it when he would and so he might bequeath the Crown to whom he pleased. But every one that understands the present Laws of Descent of the Crown of France, or the manner of Succession in the Ottoman Empire, knows that in the King of France or Grand Seignior (as absolute as they are) should bequeath their Kingdoms to any other than the right Heir, this Will would signifie nothing, and no body would obey this Successor of their appointing. And if any man think to evade this, by saying, That the Succession of the Crown is a Fundamental Law of the Government, and that a Prince may be Absolute, and yet not have a power to alter that as he may every thing else; I would ask him who made this a Fundamental Law at first, whether the King then in being, or the King with the Consent of the People, upon the first institution of the Government? If the King made it alone, since he is supposed to have made it at first for the good of the People, of which he is the Judge (and is supposed in Law never to die) why then is not he as competent a Judge of what is good for the People now, as a King that lived a thousand years agone was what was fit for the People then? and consequently hath as much Right of altering the Succession for the Peoples benefit, as he that established it at first, since every Law may be altered by the same Power that made it? But if he say it is a Fundamental Law, because long custom hath made it so, then it is apparent such a Law hath its force from the Consent of the People at first or since, Custom being nothing else. Or lastly, if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution, then it can neither be altered without their Consent; and so consequently no Princes Testament is good as to that, farther than the People or their Representatives give their assent thereunto: And the same Law holds in the Father of a Family, since this Author will have no difference between him and a King, but onely secundum Magis & Minus.
If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament, let us return again to that of Descent, and see if that will prove a better foundation to build this natural Right of Princes upon. For my part, I think that it is not onely impossible to know who was Adam’s right Heir of his Fatherly Power now, after five or six thousand years, but might likewise be as uncertain, as soon as ever the breath was out of his body: For supposing Eve survived him, why should not her natural Right of governing the Children which she her self brought forth (and which out of Wedlock would have belonged to her) revive and take place before any Right of her eldest Son; to whom upon this ground she must have become subject, if she would continue part of the Family or natural Commonwealth, (which she could not avoid, there being none but her Children or Grandchildren in the world) and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth? So that for ought I see, the Mother of the Family hath the best Right to the Government in the state of Nature, after the Husbands death, upon the Authors own grounds: For if the Commandment of Honour thy Father and thy Mother, signifie more than bare Reverence and Respect, as appears by the Apostles Exposition of this Commandment, Ephes. 6. v. 1. Children, obey your Parents in the Lord, which he makes the same with Honour thy Father and thy Mother; then this Obedience which was due to the Father, belongs likewise to her when his power ceases.
But passing over this difficulty, and allowing this Fatherly Authority to descend to Adam’s next Heir, it might have been a great Question, who this next Heir was, supposing Cain to have been disinherited for the murder of Abel, and to have gone away and built a City, and set up a Government by himself? Yet let us suppose Abel left a Son behind him, who survived Adam his Grandfather; which he might very well do, and yet the Scripture be silent in it, since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews, and therefore says little of his other Children but by the by. I would ask the Author or any man else, who was Adam’s Heir after his death, whether this Son of Abel or Seth; (whom we will suppose likewise to have survived his Father?) If he say that Adam might leave it to Seth by Will, this is gratis dictum; and it lies upon him to prove that Adam made a Will; or if he did, how it could bind his true Heir. If he say that Seth ought to succeed and govern his Brethren, as being nearer in bloud to Adam, what reason was there that the eldest Son’s son should be punished and lose his Birthright for that which was not his fault, but misfortune, viz. that his Father was murdered before his Grandfather died? Nor could Seth claim, being elder and consequently wiser than his Nephew: for his Nephew must be older, since Seth was not born until after Abel was killed. But if it be affirmed, that the eldest Son of Abel ought to succeed and represent his Father; I ask, by what Law? If it be replied, that it is to be supposed that Adam, if he had made a Will, would rather have had his Grandson succeed him than his younger Son; this is gratis dictum, and were to affirm that the Right of governing is bequeathable; which I have already confuted. But if it be said, that this Son of Abels should succeed because he represents his Father; I would ask them, by what Law this Right of Representation should take place before propinquity of Bloud? or how could the Fathers expectation onely confer a Right to his Son, in that which the Father was never possessed of? So that there being equal Reasons on both sides, and neither Law nor Precedent in the case, there remained no way to decide this Controversie, but either Combate, or the Judgment or Arbitration of the rest of Adam’s Descendants. I suppose the Author will not allow the former sufficient to confer a good Title, since the best Title might have the worst success in that Appeal to the Sword. If he allows the latter, then this hereditary Monarchy of Adam became Elective, and depended upon the Will of all the Heads of the Families which descended from Adam: (For it is not likely in so doubtful and material a point as who should govern, any of them would lose the priviledge of giving his Vote.) And if so, this Right of Succession depended upon their Wills, which might give it to which of the two Competitors they liked best; and this being once done, might for quietness pass into a Custom or Law for the future. And that this Right of Representation, where the Son dies before his Father, cannot be decided by the Law of Nature or Reason alone, is evident, in that divers Nations or distinct Tribes of People have had different Customs about it, and have established this Right of Succession divers ways: For though the Roman or Civil Law allow of this Right of Representation, yet the Germans and all Nations descended from them, did not admit it until very lately; which shews there is nothing but Custom in the case.See Grotius de J. B. Li. cap. 7. And upon this pretence the League in France admitted the Cardinal of Bourbon King, by the name of Charles the X, before his Nephew the King of Navar, his elder Brothers Son, who died before him. And that this difficulty who shall succeed, the Uncle or the Nephew, hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom, (which is but the continued Will of the People) may appear by those different Judgments that have been in all Ages made on this matter: for when there arose a Controversie between Areus, Son of Acrotatus, eldest Son to Cleomenes King of Lacedæmon, and Cleomenes the second Son of the said Cleomenes, the Senate adjudged the Royalty for Areus against Clomenes.Mariani, l. 13. c. 3. But in Spain, after the death of Alphonso the V, King of Castile, the States of Spain acknowledged his younger Son Sancho to be King, and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son, though he had the Crown left him by his Grandfathers Will.Vicerius in Vita Henry 7. And when Charles the II, King of Sicily died, and left a Grandson behind him by his eldest Son, surnamed Martel, and a younger Son called Robert; the matter being referred to Pope Clement V, he gave judgment for Robert the younger Son of Charles; who was thereupon proclaimed King of Sicily. And it seems Glanvil, who was Lord Chief Justice under Henry II, makes it a great Question who should be preferred to the Crown, the Uncle or the Nephew. So that it was no strange thing for King John to make himself King before his Nephew Arthur, since it was a moot point among the Lawyers of that Age, who ought to succeed. And where no Power could intervene, it was decided by War, and sometimes single Combats, which Historians mention to have been waged between Uncles and Nephews contending for the Principality; and not onely in this case, but in all others where the Succession of the Empire is not settled by such Laws or Customs, it lies continually liable to be disputed between the Sons or Grandsons of the last Prince, nor can ever be decided but by the Sword: Of which there is an Example in one of the greatest and most absolute Monarchies in the world, viz. the Empire of the Mogul, where for want of settling the Succession at first by a positive Law, and making the Raias,See Bernier’s Travels, 1 part. and Tavernier Lib. Sir Tho. Row’s Embassie, Purchas part. Terrey’s Relation of Indostan.Omrahs, or great Lords give their consent to it, and swear to observe it, and so have made and ascertained it as an inviolable Custom (as it is in the Ottoman Empire;) now upon the death of an Emperour, though he declare by his Will who shall be his Successor, yet the Grandees (who are so many petty Princes, and lead the People under their Command after them as they please) do not think themselves at all obliged to observe it, much less to set the Crown upon the eldest Sons head; but every man is for that Son of the last Mogul whom they like best, that is, him they conceive will suit best with their interests and designes: Nor do the Brothers think themselves at all obliged to yield to their eldest Brother, whom they are assured will put them to death, or make them perpetual Prisoners. So that every one provides for himself, and makes his Party as strong as he can by Gifts and Promises among the Grandees, against his Fathers death. Nay, lately this prize hath been played among the Sons even in their Fathers lifetime, as in the case of the late Sha-Jehan, who lived to see all his Sons killed, and his person made a prisoner by his youngest Son Aureng Zebe, who is for ought I know, Mogul at this day. And if any man thinks this onely an Evil peculiar to this Empire, and not to others, let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies, and he shall find them managed much after the same rate. Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first, but even those that have been better constituted, and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years. And of this, Scotland hath been a famous Example; where after the death of King Alexander III, and his Grandaughter Margaret of Norway, two or three several Competitors claimed a Right to succeed: But omitting others, it was agreed that it lay between John Baylliol, and Robert Bruce Earl of Carick; both of them drawing their Discent from David Earl of Huntingdon, Great Uncle to the last King (in whom they all agreed the Right to the Crown would have been, had he survived.) Baylliol claimed, as eldest Son to Dornagilla, Grandaughter to Margaret the eldest Daughter of the said Earl David. Robert Bruce claimed, as eldest Son of Isabel the second Daughter of the said David. So that if Baylliol alledged his Discent from the eldest Daughter, Bruce was not behind-hand; but pleaded, though it was true he was descended but from the second Daughter, yet he being a Grandson, and a degree neerer, ought to succeed; (whereas Baylliol was but great Grandson to Earl David:) And though Dornagilla, Baylliol’s Mother, was in the same degree with himself, yet he being a man, ought to be preferred before a woman in the same Line; and that if the Laws of Scotland would have given it to Dornagilla, if it had been an ordinary Inheritance, yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances. In short, this Dispute did so divide the Nobility into Factions, and puzzle the Estates of the Kingdom, that not being able to decide it, they and all the Competitors agreed to refer the Controversie to Edward I. King of England, one of the wisest and most powerful Princes of his time; who upon long advice and debate with twelve of the learnedest men of both Kingdoms, at last adjudged the Crown to Baylliol; or, as the Scotch Historians relate, because he would do him Homage for it: which, Bruce being of a higher spirit, refused. Yet this did not put an end to this great Controversie; for though Baylliol was thereupon admitted King, yet falling out not long after with King Edward, to whom he owed all his greatness, and having the worst of it, the Nobility and States of Scotland revived Bruce’s Title, and declared him King; who after a long War with England, enjoy’d the Crown quietly at last, and left it to his Issue, whose Posterity (in our present King) enjoy it to this day.
To this I shall adde one Example more from Portugal within these hundred years. King Henry called the Cardinal dying without Issue, there was a great Controversie who should succeed; (for he died suddenly just as the States of the Kingdom were assembled to settle the Succession, for he declared himself unable to decide it:) So that he onely left by his Will twelve Governours of the Kingdom, who should govern during the interregnum, but that the Crown should descend to him that should appear to them to have the best Title. Four eminent Competitors put in their claims: 1. Antonio called the Bastard, who nevertheless pretended that he was lawful Son to Don Lewis, second Brother to Henry the last King: So that he had no more to do but to prove himself Legitimate. 2. Alexander Duke of Parma, who claimed as Grandson to Mary, eldest Daughter to Don Duarte, youngest Brother to the last King Henry, and Son to King Emanuel. 3. The Duke of Braganza, who claimed as Son to Katherine, second Daughter of the said Don Duarte, yet alledged his Title to be best, because he was the next of the Bloud-Royal who was a Native of Portugal (as the Heir of the Crown, as he pretended, ought to be, by a Fundamental Law of that Kingdom:) yet it seems that Law was not then so well known, or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met. 4. Philip the second, King of Spain, who claimed as Son to Isabella Daughter of Emanuel King of Portugal, and so a degree nearer than the rest to Henry the last King. The States and Governours differing, the States were dissolved; and during their recess, the Governours not agreeing among themselves, the King of Spain raised an Army, and entering Portugal, seiz’d the City of Lisbon, and consequently all the rest of the Kingdom submitted to him, and so made himself King by force. And yet we have seen in his Grandson’s time, the Estates of Portugal declare this Title void, and the Crown setled in the Posterity of the Duke of Braganza, who still enjoy it by vertue of this Fundamental Law. And that this Fundamental Law could not be altered but by the consent of the Cortes or States, appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy. And how much even Kings themselves have attributed to the Authority of their Estates, appears by the League made between Philip the Long King of France, and David King of Scots; wherein this Condition was exprest, That if there should happen any difference about the Succession in either of these Realms, he of the two Kings which remained alive, should not suffer any to place himself on the Throne, but him who should have the Judgment of the Estates of his side; and then he should with all his power oppose him who would after this contest for the Crown. So that our Author, without cause, lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown; when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason, determine which was he: And our Author should have done well to have set down some certain Rules, how the People might be assured, without a positive Law before made, that they acknowledge the right Heir, and not an Usurper to his prejudice.
4: Chapter II
The title of this chapter refers to one of the last essays which Filmer published in his lifetime, viz., his “Observations on the Directions for Obedience in doubtful times.” In this 1653 essay, Filmer attempted to explain how a royalist such as himself still owed at least passive obedience to the de facto rule, Oliver Cromwell. Tyrrell argues that Filmer’s case for obedience to usurpers involves a betrayal of Filmer’s own patriarchal theory of legitimate authority.
In one main line of argument, Tyrrell exploits Filmer’s concession that when the true heir to a throne is unknown, fatherly authority reverts to the (male) heads of families who may then choose a new monarch. Tyrrell argues that Filmer cannot both hold that the establishment of government by agreement is impossible and propose the selection of a new monarch by agreement among these heads of families. Moreover, Tyrrell argues, these heads of families could build limits on the monarch’s authority into their authorizing agreement. Hence, Filmer’s concession undermines his case for the necessity of unlimited monarchic authority.
… it being morally impossible, if this devolution of the Government should happen in a populous Country, for all the Authors independent Heads or Fathers of Families, ever to meet in Person to chuse a King; these being vastly numerous, and divided from each other at great distances. So that all the Author’s Objections against a mixt Popular Election will prove as strong against this of Fathers alone: For how, except by some secret miraculous instinct, should they all meet at one time and place?
…since these Fathers of Families had in the state of Nature an absolute Power of governing themselves, I shall now enquire in the next place, Whether they may not pass over this Power upon some certain Conditions, and reserving some Rights and Priviledges to themselves and Children, upon the making of the Compact with their new Prince.
And if these Fathers of Families may limit the power they confer upon their new Prince, upon this Escheat of the Soveraign Power, and retain some of it to themselves; they might do the same upon the first institution of the Government…
James Tyrrell, *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). Chapter: CHAP. II.: Observations on the Directions for Obedience in doubtful times, and other places of his Patriarcha, and other Treatises.
Accessed from oll.libertyfund.org/title/2168/200958 on 2008-12-15
The text is in the public domain.
CHAP. II.
Observations on the Directions for Obedience in doubtful times, and other places of his Patriarcha, and other Treatises.
BUT since this Author, rather than the disposal of a Crown shall fall to the decision of the People, or States of the Kingdom, will give an Usurper a good Right to it against all persons but him that hath the Right; we will now examine how much of that is true which he lays down in his Directions for Obedience to Governours in doubtful times, and how far men are bound in Conscience to obey an Usurper, whilst he that hath Right is kept out by him. First, he takes it for granted, that all those that so eagerly strive for an original Power to be in the People, do with one accord acknowledge that originally the Supream Power was in the Fatherhood,Vid. Mezeray Abregé Chron. An. 1318. and that the first Kings were Fathers of Families; which if granted, yet will not prove that this proceeded from that natural perpetual subjection which Children owe their Parents; or that because they are Parents, they are therefore Lords and Kings over them: So that this being the Groundwork of whatever he says in this Discourse, p. 67. if this be faulty (as I hope I have proved it to be) all that he builds upon this foundation, signifies nothing. Secondly, he assumes that this Paternal power cannot be lost; it may be transferr’d or usurped, but never lost, or ceaseth — But as the power of the Father may be lawfully transferred or aliened, so it may be unjustly usurped; and in Usurpation the Title of the Usurper is before and better than the Title of any other than him that had a former Right: for he hath a possession by the permissive Will of God, which permission how long it will last, no man ordinarily knows; every man is to preserve his own life for the service of God, and of his King or Father: and is so far to obey an Usurper, as may tend not onely to the preservation of his King and Father, but sometimes even of the Usurper himself, when probably he may be thereby preserved to the correction or mercy of his true Superiour. And though by humane Law a long Prescription may take away a Right, yet divine Right never dies, nor can be lost or taken away. The same he says p. 70. That in Grants and Gifts that have their original from God or Nature (as the power of the Father hath) no inferiour power of man can limit nor make any Prescription against them. Upon this ground is built that Maxime, That Nullum tempus occurrit Regi, no time bars a King. Which second assumption is likewise false: for I have already proved that all Fatherly power ceases with the life of the Father, as Motherly power with the life of the Mother; or else in the state of Nature a man must be left like other Cattle, to be pickt up and markt by whoever can first seize him. And secondly, that it is false that this power and authority of a Father can be transferred to, or usurped by another; or that the Son owes the person to whom his Father transfers or sells him, any other duty than as his Assignee performs the Office of a Father towards him. Much less that an Usurper acquires any Right over the person of the Son in the state of Nature; for otherwise if a Thief should procure strength enough to drive a Master of a separate Family out of doors, and so this Rogue could subdue the whole House, and set up for Lord and Master of it, that then the Wife, and Children, and Servants, were immediately bound to obey him, because he hath a possession, and is in by the permissive Will of God, and so hath a better Right than any body else, but the Master himself. It is true indeed, in this case every Member of this Family is bound to preserve his own life, and may yield a passive Obedience to this Rogue, for fear of his power, and as far as he thinks it will conduce to his preservation; but I do not see any obligation he hath from Conscience or Reason, to obey this Robber farther than as he cannot help it, but may take the first opportunity to drive him out of the House, and call in his true Father or Master; unless he hath made him any promise to be quiet and not assault him, for then he is in the same state with a Prisoner upon parol: for all Writers on this subject, hold that nothing but a lawful War can give any man a Right over the person of another, unless he become his Servant by some voluntary act of his own; or otherwise the Slaves taken by the Argter-Pyrates were in a sad case, for they were bound in Conscience never to escape, without the consent of their Masters. Nor upon the Authors principles, is there any difference between a Father of a Family, in the state of Nature, and a Prince, since he tells us more than once, that a Kingdom is but a large Family: And consequently no difference between an Usurper of the Fatherly power, and that of a Monarch; onely the Rogue that usurped the one, could call himself but Master of the Family; but the other would stile himself King, Emperour, or Protector. Nor will the place of St. Paul, Rom. 13. v. 1. oblige any man in this case: for though it is said, that St. Paul wrote this Epistle, Nero an Usurper being Emperour of Rome; I deny that Nero was an Usurper: for though it is true that Claudius left a Son, yet since by the Roman Law a man might make whom he pleased his Son by Adoption, which Son so adopted was in all respects looked upon as the true Heir of the adopting Father, and Nero was so adopted by Claudius; and so being elder than his own Son Germanicus,Tacit Annal. 12. c. 25, 26. would succeed before him. And besides, the Adoption being confirmed and passed into a Law by the Senate, Nero was as truly Claudius’s Son by the Roman Law, as Britannicus himself. So that an Usurper hath at first no better Right than another: For Gods permitting a wicked act to be done, as a Banditi or Pyrate to take a man Prisoner, does not therefore confer on this Thief or Pyrate any Right over a mans person. So that the instance the Author gives, p. 73. will not hold, That Usurpers have such a qualified Right to govern, as is in Thieves who have stolen Goods, and during the time they are possessed of them, have a Title in Law against all others but the true Owners; and so such Usurpers, to divers intents and purposes, may be obeyed: For first, this is no Law of Nature or Reason, but onely a positive Law of England; where, for the avoiding of perpetual violence and strife, and for the better securing of Property, they have made possession even in Thieves to confer a Temporary Right against all but the true Proprietor: Whereas in the state of Nature, a Thief by invading another mans Goods unjustly, and taking them away by violence, becomes an Enemy to all Mankind; and so may lawfully be killed, or have what he hath so possessed taken from him by any other. Secondly, Neither does the parallel between the possession of Goods, and that of a Kingdom, hold: for Goods may be possessed by the first Occupant; but Government, which is an Authority over the person of a man can never be seized, since a man without his own act or consent can never lawfully fall into the power or possession of another (as I have already proved:) So that I know not to what purpose this Treatise of the Authors could serve, but to make all men obliged in Conscience to yield not onely a passive but an active Obedience to all the Commands of Cromwel and the Rump, not onely in things lawful and necessary, but indifferent ones too, p. 74. in which consists all Obedience, since all the Authority, even of lawful Powers, extends onely to indifferent things; all other actions being sufficiently setled by the Law of God or Nature.
But the Author perceiving this difficulty, endeavours to extricate himself, by saying, p. 75. That though granting in things indifferent, an Usurper may be obeyed as well as a lawful Prince, yet that it does not therefore follow that there is as much Obedience due to an usurped Power as a lawful; but that herein lieth a main difference between them, that some things are indifferent for a lawful Superiour, which are not indifferent but unlawful for an Usurper to enjoyn. Usurpation is the resisting and taking away the Power from him who had such a former Right to govern the Usurper, as cannot lawfully be taken away. So that it cannot be just for an Usurper to take advantage of his own unlawful act, or create himself a Title by continuation of his own Injustice. And if it can never be an act indifferent for the Usurper to disobey his lawful Soveraign, much less can it be indifferent for him to command another to do that to which he hath no Right himself. It is onely then a matter indifferent for an Usurper to command another when the actions enjoyned are such as the lawful Superiour is commanded by the Law of God to provide for the benefit of his Subjects, by the same or the like restrictions of such indifferent things; and it is to be presumed, if he had not been hindered, would have commanded the same or the like Laws.
Let us now see how far this distinction will serve his turn. I should in the first place be glad to know what he means by these words, lawful Soveraign or Superiour: If he means such a Superiour who was particularly appointed by God, God never since David and Solomon expresly appointed a King in any Nation. Secondly, If one who was elected by the People, or whose possession is confirmed by their acknowledgement publickly declared, and so passed into a Law; this were to set up what he so much abhors, an elective King, who must claim by Law. If by lawful, he means such a one who upon a bare possession, hath by his own power alone made a Law declaring himself to be the lawful Superiour; this Law is unlawful for him to make, or for the Subjects to obey: And if it be such a one to whom possession gave a Right (as he will have it) being in possession by the permissive Will of God, though at first an Usurper; Why hath not this second Usurper as good a Title to take the Government from the former, as he or his Ancestors had to take it from him that had it before? But indeed Occupancy onely confers a Right in the state of Nature to such things as are meerly necessary for a mans subsistence; but Government is an Office of Trust and Power, and which the Usurper might very well have lived without: And why should a bare possession of this, though of three or four hundred years, confer a better Right than that of a year or two? for this last possession seems, according to the Authors principles, to be the better Title. For he says, a little before, p. 69. That the first Usurper hath the best Title, being now in by the permissive Will of God: And if so, may not the last Usurper use the like Argument, since he tells us, p. 67. That this last Usurper hath a better Title than any other, except him who had a former Right; for he hath a possession by the permissive Will of God: which permissionhow long it may endure, no man ordinarily knows? Now which is best, a Right which once a man onely had by the permissive Will of God, but is now ended (God having otherwise declared himself,) or a present possession which he hath by the same permissive Will; which when it will have an end, no body knows? But if he answers, as he does, p. 69. That this Usurper is onely then to be obeyed and reputed by the Subjects for the true Heir, where he hath continued so long that the knowledge of the right Heir is lost by all the Subjects; for no man hath an infallible certainty, but only a moral knowledge, which is no other than a probable Perswasion grounded on a peaceable Possession; which is a Warrant for Subjection to Parents and Governours: I know not what the Author means here by true Heir, and as little when he will have this knowledge to be lost. If he means by right Heir, the Son or descendant of the first Usurper, I should be glad to know how he that had no Right himself, could confera Title upon another; or by what Law his Son had a Right to succeed him? If by the consent of the People, this were to grant that which he before denies as at all necessary to any Princes Title. If because he or his Descendants have an uninterrupted long possession, the difficulty still remains, how this long possession can confer a Right, for the Reasons already given. But if it be said that the Heir of this Usurper hath a better Right than any body else, as having possession, and that it were destructive to the Peace of the Commonwealth to put him out, after so long an enjoyment of the Crown: it’s true, this were a good Argument not to make any alteration in the Government, as it is setled; but they must likewise consider, that the same may be as well made use of by the last Usurper and his Party, since he having now the possession in as full a manner as he that had it before, cannot perhaps be put out of it, without involving the Nation in a tedious bloudy War. It is likewise as uncertain, when the knowledge of this right Heir of the first Usurper shall be said to be lost by all the Subjects. If he means personal knowledge, when all the people that could remember the Prince that was turned out are dead, and none left alive that certainly know who is his next Heir, the Right of this true Heir will quickly be lost in one Generation: but if he means a traditional moral knowledge (as he seems to do) then this can never be lost as long as there is any Authentick or Historical Tradition of the Descent of this Heir; which Tradition may be continued for a thousand years together: during all which time, the Princes that succeed being Heirs of such Usurpers, can never require a perfect Right to their Crowns, the Author holding it an undoubted truth, p. 60. That though Prescription may take away a common Right, yet divine Right (or that to a Crown) never dies, or can be taken away thereby. And upon this ground the common Maxime is built, Nullum tempus occurrit Regi. So that as long as this kind of moral knowledge of this right Heir can be had from any Authentick History or Record, the Prince in being hath onely a Right from Possession, and can never create himself a Title by the continuation of his own Injustice, or command any of his Subjects to fight against this true Heir, since they are to obey this Usurper, (p.72.) or his Heirs, onely in such things as tend to their own preservation, and not to the destruction of the true Governour. By which Principle, the Author at once renders the Titles of all the Crowns in Europe disputable, and all Allegiance uncertain and questionable by their Subjects; as I shall shew in several instances, as I shall prove from Histories of unquestionable credit. I shall begin with our own Country, England. If therefore, as the Author will have it, p. 69. the Usurper is onely then to be taken for the true Heir, when the knowledge of the right Heir is lost by all the Subjects; it will follow, that all the Kings and Queens that reigned in England until the coming in of K. James, were Usurpers: for the Right of Succession to the Crown of England, could not be obtained by Conquest alone. (And I suppose this Authour does not allow it to be bequeathable by Will) as long as the right Heir was in being, and could be known from authentick Histories and Traditions. Now the Right of the Crown by Descent belonging, after the death of Edward the Confessor, to Edgar Atheling his Cousen; he dying without Issue, the Right fell to Mawd his Sister, who married Malcolm III,Buchanan de Rebus Scoticis, lib. 7. King of Scotland; and though her Daughter Mawd was married to Henry the first, King of England, from whom all our Kings are descended, yet the Right was not in her, but in Edgar King of Scotland, her Brother, from whom all the Kings of Scotland to King James were descended. It is true, the Kings of Scotland were too wise ever to set up this Title, because they knew the Norman Race were quietly possessed of the Throne, and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy, Nobility, and People: yet did not this absolve the People, who might very well retain the traditional knowledge of this right Heir; For divine Right never dies, nor can be lost or taken away, or barr’d by Prescription. So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants, were absolutely void and unlawful, by our Authors principles; and so likewise all Wars made against the King of Scotland in person, were absolutely sinful and unlawful, since (according to this Authors principle) the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour. So by the same Principle, all Laws made in France about the Succession of the Crown, are absolutely void: and it would be a mortal sin in the French Nation to resist any King of England of this Line, if he should make War in person upon the French King then in being, since according to the ancient Laws of Descent in that Kingdom, he is true Heir of the Crown of France. Nor can the French here plead ignorance, since there is scarce a Peasant there but knows our King stiles himself King of France, and quarters the Arms of that Kingdom; and so ought to understand the justness of his Title.Mariana de Rebus, Hisp. lib. 13. cap. 7. So likewise in Spain, all the Kings of Castile are likewise by this Rule Usurpers, since the time of Sancho III, who succeeded to the Crown after the death of Alphonso V his Father, who had bequeathed it to Alphonso and Ferdinand de la Cerda, his Grandsons by Ferdinand his eldest Son, who died before him: Yet notwithstanding this Testament, and their Right, as representing their Father the elder Brother, Sancho their Uncle was admitted as King by the Estates of Castile; and his Descendants hold that Kingdom by no better Right to this day. Nor is this a thing stale or forgotten; for the Dukes of Medina Cæli, on whom (by Marriage of the Heiress of the House de la Cerda) the right descends, do constantly put in their Claim upon the death of every King of Spain; and the answer is, The place is full. Nor can those of this Author’s opinion plead possession, or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants: for it will be replied out of this Author, p. 70. That the right Heir having the Fatherly Power in him, and so having his Authority from God, no inferiour Power can make any Law of Prescription against him, and Nullum tempus ocurrit Regi: And this were to make the Crown elective and disposable according to the Will of the Estates or People. I shall now return to the Author’s distinction, and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent, signifies nothing: for suppose that an Usurper, as several have been in England and other Kingdoms, either dares not, or thinks it not for his interest to alter the form of the Government, but is contented for his own safety to govern upon the same Terms his Predecessors did, and so will not raise any Money, or make new Laws without the consent of the Estates, whom he summons for that purpose; Now they must either obey his Writs of Summons, or they must not: if they do not obey them, he will perhaps be encouraged to take their Goods by force (perhaps by a standing Army which he may have ready in pay) and then say it is long of their own stubbornness, who would not give it him freely when they might have done it; and they shall likewise be without these good Laws the Author supposes he may make: but if they meet, he will not let them sit, unless they first by some Oath or Recognition acknowledge his Title to be good, and own him as their lawful Prince. Now what shall they do in this case? they must either lose their Liberties, and alter the form of the Government, or acknowledge him to the prejudice of their lawful Prince. But if the Laws are once made, and they appear evidently for the good of the Commonwealth, they then are no longer indifferent, since all private Interests are to give place to the publick Good of the Commonwealth; since in the instance before given of the Father of a Family’s being driven out of doors by a Robber, no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall, and he would take upon him to give orders for the quenching or securing it from falling; for they did this not to own his Authority, but from the obligation they owe to their Father or Master, who would have done the same, had he been at home. So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth, is not to acknowledge these usurped Powers as lawful. I do less understand the force of another distinction he makes use of, p. 155. That an Usurper is so far to be obeyed, as may tend to the preservation of a mans King and Father, nay sometimes even to the preservation of the Usurper himself; when probably he may thereby be reserved to the correction or mercy of his true Superiour. For how Obedience to an Usurper can tend to the preservation of the lawful Prince, I understand not. And as for the other instance of preserving the person of the Usurper for the mercy or correction of the true Superiour, it had been a very good pretence for Obedience to Cromwel and the Rump; nay, to fight for them, since this was but to preserve them for his Majesties mercy or correction another time, though their Power might have continued until now; since they had a Possession by the permissive Will of God, which how long it would endure, no body could tell. Such untoward things are Arguments drawn from false Principles, that they flie in the faces of those that make use of them, and will either reduce them to absurdities, or else prove weapons against themselves.
But I shall now come to his last Refuge, when he can no longer evade, but that by the Peoples ignorance of Adam’s right Heir, or of the Heirs to the last Prince, the supreme Power is devolved upon the People, who may chuse what kind of Government they please, (Patriarch. p. 21.) This he denies, saying, [That in such cases the Kingly Power escheats to the Fathers or independent Heads of Families. The same Answer he gives to this Objection in his Anarchy of a limited Monarchy, p. 272. where he replies (very pleasantly) That no King can die without an Heir, as long as there is one man living in the world; it may be the Heir may be unknown to the People, but that is no fault in Nature, but the negligence of the People whom it concerns.] So that it seems the next Heir being often not to be known, any man, when the Prince dies, may step into the Throne; and if he have Power enough, is next Heir: for a King can never die without an Heir, as long as any one man is left alive in the world; and who can disprove him that he is not the man? So that the power he hath given to his Masters of Families to chuse an Heir, or one to ease them of their Fatherly Power, signifies nothing: For this Usurper that can first seize it, may be right Heir to Adam for ought any body knows. And certainly having Possession, which is the permissive Will of God, he hath a better Right than any other, as we have often heard before: And are told farther in the Anarchy of a limited Monarchy, p. 273. That if the true Heir of the Crown come to be dispossessed, in such cases the Subjects Obedience to the Fatherly Power must go along and wait upon Gods Providence; who onely hath Right to give and take away Kingdoms, and thereby adopt Subjects into the Obedience of another Fatherly Power. So that Man is not onely a Creature who is his Goods that can first catch him, but, according to this Author, is in a worse condition than Brutes: for whereas if a Dog be taken up by a Stranger, and a Collar clapt about his neck, and so led away, it is left to Jowler’s discretion how far he will obey his new Master; and as he may either stay with him, if he likes his Quarters, & finds himself well used, so surely he may without any sin, knaw his halter (nay bite the fingers of this Usurper of his Liberty) and run away. But poor Man does not onely fall to the first Occupant, whom he may not either obey or disobey, as he finds it most conduce to his interest and preservation, but is peg’d down to an absolute Obedience, and obliged in Conscience to obey this Usurper (let him use him well or ill) with the same respect and duty as if he were his Father: Which I think God was a better friend to Mankind than ever to intend. But to return to the subject from whence we digressed, our Author, for fear he should seem by admission of a Power in Fathers of Families to chuse a Head or Prince over them, and to have granted it to them as the whole People, he distinguishes, saying,Anarchy of limited Monarchy, p. 272.It does not escheat to the whole People, but onely to the supream Heads and Fathers of Families; not as they are the People, but quatenus Fathers of the People, over whom they have a supream Power devolved unto them after the death of their Soveraign. Chief Fathers in Scripture are accounted all the People, as all the Children of Israel, as all the Congregation, as the Text plainly expounds it self, 2 Chron. 1. 2. where Solomon speaks to all Israel, that is, to the Captains, the Judges, and to every Governour, the chief of the Fathers; and so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel, 1 King. 8. 1. and 2 Chron. 5. 2.
By all which it appears, that the Author allows in this case the Government escheats to part, but not to all the People, or whole multitude of Men, Women and Children taken together, to chuse what Government they please. And indeed in this sence there was never any Democracy or Government of the People in nature: for though a Democracy may be defined to be that kind of Government where the supream Power is in a Council or Assembly consisting of all the Citizens: And although it does not less concern the Women and Children in that kind of Government to be happier than in others, yet who ever thought it a new sort of Commonwealth, and not a perfect Democracy, though Women, Children, and Slaves were excluded the publick Councils and Assemblies? And therefore if it be esteemed a perfect Democracy (and was so at Athens, which all must grant to have been so) where onely Free men, or at their own dispose, and such who were supposed at first to have by their meeting together instituted this Government, which is likewise continued by those who have succeeded into their Places and Rights: I see no reason why these should not be looked upon as representing the whole promiscuous body of the People, to whom the Power devolves upon the want of a Successour. For it is likely that Commonwealths were first instituted by Fathers of Families, having Wives, Children, and Slaves under their Domestick Government; whom nevertheles they would neither equal with themselves, by admitting them to a Vote in the Government, neither yet would abdicate their power over them. But then the Author urges,Anarchy of a limited Monarchy, p. 270, 271.If Infants and Children be concluded by the Votes of their Parents, this destroys the whole Cause: for if it be allowed that the Acts of Parents bind their Children, then farewel the Doctrine of the natural freedom of Mankind. Where subjection of Children to Parents is natural, there can be no natural freedom: and if any reply, that all Children shall not be bound by their Parents consents, but onely those that are under age; it must be considered, that in Nature there is no Nonage. If a man be not born free, she doth not assigne him any other time when he shall attain his freedom: or if she did, then Children attaining that age, should be discharged of their Parents contract. So that in conclusion, if it be imagined that the People were but once free from subjection by Nature, it will prove a meer impossibility ever lawfully to introduce any kind of Government whatsoever, without apparent wrong to a multitude of People. It is fartherobservable, that ordinarily Children and Servants are a far greater number than Parents and Masters; and for the major part of these to be able to vote and appoint what Government or Governours their Fathers and Masters shall be subject to, is most unnatural, and in effect to give the Children the government over their Parents.
To which Objection I reply, 1. That the Author is here mistaken, and that there is really an Age of Nonage in nature (as hath been already proved) in which though the Child be indeed free, yet (by reason of his own want of strength and discretion to judge what is necessary for his own good and preservation) is obliged to submit himself to his Parents judgment in all things conducing to that end. 2. That Children, neither Infants or others, are obliged to the Acts or Agreements of their Ancestors in the state of Nature, farther than it conduces to their benefit or preservation. So that if a married man out of a Commonwealth, should sell or yield himself to a Master of a Family for a Slave, upon condition that his Master should provide him all the necessaries of life (without which such a grant or sale of a mans self cannot be supposed good) certainly if he had then no Children, this could not bind his Issue that was to be born, so that they should be perpetual Slaves to all Generations; since natural Equity, and the favour of Liberty, will interpret, that the Aliment which the Master affords the Children of this Slave, are understood to be contained under that provision which the Master is obliged to make for him and his, by vertue of their Contract. Or admit that there was no express provision made in the Conditions for the maintenance of the Children, yet in this case, I see no Right the Master can claim in the persons of these Children, longer than ’till he hath satisfied himself out of their labour for the charges he hath been at in feeding and providing for them; which may very well be by twenty five years of age (as I have already proved.) So that about that time I see no reason why such Children may not lawfully shift for themselves, if they do not like their Master. And if any Friend of theirs undertake to satisfie their Master before that time, I think they are free, though he should refuse to accept it, since it was lawfully tendered. Indeed for Slaves taken in a just War, there may be some appearance of reason, why their Children should also be Slaves, since the Parents accepted of their lives upon that condition that they should live in perpetual servitude, and their Master undertook to maintain them upon no other consideration: So that these Children do implicitely owe their lives to their Master, since he might by the Laws of War have slain their Parents, and so they could never have been born. But I will not assert, that even this slavery is perpetual in relation to the Children: But as for Subjects, though they are not directly or expresly bound by the Acts or Consents of their Ancestors, who first instituted the Government, yet indirectly or consequentially they are obliged to stand to what their Ancestors have done: For since, as I said before, no man will deny to accept of the Promise or Conditions of his Ancestor, if it be for his advantage, and since the Institution of Government was for the common good of mankind in general; so this or that particular Government being for the preservation and security of every Subject that enjoys the priviledges thereof, no man can believe that the Posterity of those that first instituted this Government, will go about to undo what their Ancestors have done so much for their benefit, and reduce all things to the state of Nature again. So that as long as they submit to, and enjoy the benefits of the Government which was first establisht by the consent of their Forefathers, they are supposed to yield a tacite Assent to those Compacts which they long since made, and implicitely become Subjects to that Government under which they were born. So that those that first instituted Government in any Country, have no necessity expresly to promise or engage for the Subjection and Obedience of their Children, or those who should succeed them. And if any private persons will not own this Government, and so take upon to resist it, pretending they are not obliged by the Compacts of their Forefathers to obey it as established by them; such persons, if they enter into a state of War, or make Confederacies to that end, may justly be looked upon as Enemies to the Government, and punished accordingly, since they will go about to disturb the common Peace and Tranquility of the Nation for their own private Discontents or Advantage: for the People being once entred into Society, can never be supposed to alter their Judgments all at once without very good cause, much less to die, though the particular persons that constituted it do: for as a River is still esteemed the same as long as the water runs in the same Channel, though the same individual water never stays in the same place, but one part still pushes out another; so those are not less to be esteemed in the politick capacity (of a Civil State) the same people, than those by whom the Commonwealth was at first founded. And though it is true that Governments may have been at first begun by Fathers of Families and other Freemen, who first submitted their Wills to that of one person or more, and so the Women, Children, and Servants, who had had no Votes in its Institution, might be supposed as represented by their Husbands, Fathers, and Masters: And since they enjoy all the common benefits of the Commonwealth, and are likewise capable of enjoying all those priviledges and advantages which are proper and peculiar to Free Subjects, whenever they come to be at their own disposal, and that they owe their breeding up and preservation to its protection; they may well be lookt upon as under an higher Obligation in Conscience and Gratitude to this Government, than Strangers of another Country, who onely staying there for a time to pursue their own Occasions, and having no Right to the same priviledges and advantages of the Commonwealth, do onely owe a passive obedience to its Laws.
But to let you see more plainly, that upon such a devolution of the Government as the Author grants, not onely the Masters of Families, as Fathers, ought to have Votes, but all others that are at their own dispose; I will ask any of his opinion, what he thinks of a single man living in a house alone, or with a Wife, without either Children or Servants, or perhaps boarding in another mans house for their money, why they should not have Votes as well as those that are his independant Fathers and Masters? I can see no reason, nor I believe they neither. So though the Author by the words Supream and Independant Heads of Families, seems to exclude all Sons from having Votes whilst their Fathers are alive, although they are married, and have separated into distinct Families; yet since I have proved that neither Paternal Authority nor Filial Subjection is absolute or perpetual in the state of Nature (into which the Commonwealth is by the death of the Prince now supposed to be resolved) and if it were otherwise, yet unless they will void all those Laws and Constitutions that have been before settled both for descent of Inheritances, and the distinguishing of Property. So that if these Laws stand in force during this interregnum (unless they will fall to absolute confusion) these Sons so making divers Families, and having Estates distinct from their Fathers, ought likewise to have Votes in the Government, upon the Authours own principles, since the Laws of the Country have set them free from all Paternal subjection, more than what the Rules of Piety and Gratitude oblige them to. And as for such Sons as (though of mature age, yet) remain as Servants in their Fathers Families, and so are under a greater subjection than those that are separated from it; I see no reason why they may not appoint their Father, as him they could best trust, to vote for them, and represent them in the choice of a Governour; and then they are as much obliged as any man can be by the act of a person whom he hath impowered to act for him, or as these Fathers of Families would be by Representatives of their own chusing: it being morally impossible, if this devolution of the Government should happen in a populous Country, for all the Authors independent Heads or Fathers of Families, ever to meet in Person to chuse a King; these being vastly numerous, and divided from each other at great distances.Anarchy of a mixt Monarch. p. 269 So that all the Author’s Objections against a mixt Popular Election will prove as strong against this of Fathers alone: For how, except by some secret miraculous instinct, should they all meet at one time and place? What one Head of a Family or Company, less than the whole Body of these Fathers of the People, can have power to appoint either time or place of Election, where they are all free and independant by Nature? and without a lawful Summons, it is most unjust to binde those that are absent. So neither can the whole Body of the Fathers of Families summon it self: One man is sick, another is lame, a third is aged, and a fourth (though a Father of a Family, may be under years of discretion, or not in his right senses) and many more may have business of their own which they cannot leave, to run two or three hundred miles up to the chief City to chuse a King. So that either the People may elect, or else his Fathers of Families cannot, for the same reasons. And if the major part of these Fathers should agree to chuse Representatives, how can this Agreement of the major part bind the minor that did not consent, since according to the Authors principles,Patriarcha, pag. 44. Where the Arguments against Elections by a major part, are proposed at large. in Assemblies that take their original from the Law of Nature, no one man or multitude can give away the Right of another? So that though the Author seems to have been so good-natured as to have given these independent Fathers of Families a Power in this case of Escheat to chuse a Governour, yet all this signifies nothing, since they can never all meet or agree to chuse Representatives: They are still like to be his Slaves who can make a Party strong enough to seize the Government, and usurp an Authority over them: Whom yet they must obey, since he either is or represents the right Heir of Adam; and so no body hath a better Right than himself, who is in by the permissive Will of God; which how long it will last, no body can tell. And God does but adopt Subjects into the obedience of another Fatherly Power, or else they must fall into a down-right Anarchy, and every Father of a Family may set up for an absolute Prince. But to return whither we have digressed; for I have said this, onely to shew that this Authors principles (as well as those of others) contradict themselves in this subject; and either these Fathers of Families are the People, and consequently cannot, according to this Authour, ever meet or agree to chuse a Prince; or else the whole People may as well. But since it may be objected, that it does not serve to find out truth, or settle the Question in hand, barely to recriminate and shew the same flaws in his Principles as he finds in those of others;Patriarcha, p. 41. let us see if his Objections against Bellarmine and Suarez, and all those who place Supream Power in the People, be such terrible things, that the poor Jesuits are absolutely run down in this Dispute. He therefore first asks, If their meaning be, that there is but one and the same Power in all the People of the World, so that no Power can be granted, except all the men upon the Earth meet and agree to chuse a Governour? To which Suarez answers, That it is scarce possible, nor yet expedient, that all the men in the world should be gathered together into one Community. It is likelier that either never, or for a very short time, this Power was in this manner in the whole Multitude of men collected together; but a little after the Creation men began to be divided into several Commonwealths, and this distinct Power was in each of them. To which our Author replies, That this Answer of scarce possible, nor yet expedient, &c. begets a new doubt how this distinct Power comes to each particular Community, when God gave it to the whole Multitude onely, and not to any particular Assembly. Can they shew or prove, that ever the whole Multitude met, and divided this Power which God gave them in gross, by breaking it into parcels, and by appointing a distinct Power to each Commonwealth? Without such a Compact, I cannot see (according to their own Principles) how there can be an Election of a Magistrate in any Commonwealth, but a meer Usurpation upon the Priviledge of the World. If any think that particular Multitudes at their own discretion had power to divide themselves into several Commonwealths, those that think so, have neither Reason nor Proof for so thinking: and thereby a Gap is opened for every petty factious Multitude to make more Commonwealths than there be Families in the world.
In which Dispute I conceive the Jesuit hath gone too far, in asserting an undivided Soveraignty in the whole Multitude collected together before any Civil Government instituted; That being onely the Compact or Agreement of those that entred into it, and binding none else at first. So likewise this is a meer Chimera of the Author’s, that Adam or Noah were absolute Monarchs and Heirs of the World; so that no man could withdraw themselves from the Obedience of their right Heirs, without being guilty of Rebellion. Whereas I have already proved, that all the Sons of Noah, and their Descendants, were independant Governours of their Families, without any subordination to the eldest Son or Heir. And if every Brother had a Right to set up an Independant Family or Principality distinct from that of the eldest, I would fain know what became of this absolute Right of Adam or Noah, and by what authority this undivided Soveraignty which God had conferred on Noah, was thus crumbled into parcels. If by Gods appointment, then it seems God did not countenance this notion of the right Heir of the world: If they did it of their own heads, then all the ancient Patriarchs, or first Peoplers of the world, were guilty of Rebellion and Usurpation against their elder Brother and his Descendants. But if the Author’s Friends think he hath the advantage, because I grant that the World was peopled after the Flood under the conduct or government of distinct Heads or Fathers of Families; this does not grant any natural Right in those Heads of Families to have an absolute power over their Descendants, since perhaps God divided the Language of the World by so many Tribes or Families, for the better conservation of the mutual Love and Concord of neer Relations, since men would more readily obey their Ancestor or common Father, than a meer stranger; or for other reasons best known to his infinite Wisdom. So that there was a necessity that those of the same Stock should upon the dispersion march off together, since none else understood one another. Yet the Scripture does not tell us whether in this division and plantation of the World, the Headship of these Families was according to eldership of birth, or whether they elected the fittest man of their Tribe or Family to be their Leader: And if the eldest were the man, it was not from any Right over them, but either of reverence to his Wisdom, or to avoid the Dissentions that might arise by other kind of choice on Eldership; though indeed it confers no Right of it self, yet is often preferred as a kind of natural Lot. So that every one of these Heads of Families being independant from each other, they could never agree upon a Ruler over them, but by Compact among themselves: And if so, he was their Leader that all the rest liked and agreed upon. So that there needed no Compact of all the People of the world, since every Father of a Family being independant upon any man else, had a power to confer his Authority of governing himself and his Family upon whom he pleased: which Power, whether, and how far it was from God, and what kind of Authority it was, we shall examine hereafter. So that though I grant all Government might be at first instituted by Fathers of Families, yet this does not prove any despotick Power that such Fathers had over their Children or Descendants; and so consequently could confer no such Authority over them. So that all the rest of the Authors Queries about the distinct power of the Multitude vanish, since though there never was any Government where all the promiscuous Rabble of Women and Children had Votes, as being not capable of it, yet it does not for all that prove all legal. Civil Government does not owe his Original to the consent of the People, since the Fathers of Families, or Freemen at their own dispose, were really and indeed all the People that needed to have Votes; since Women, as being concluded by their Husbands, and being commonly unfit for civil business, and Children in their Fathers Families being under the notion of Servants, and without any Property in Goods or Land, had no reason to have Votes in the Institution of the Government.
So likewise all the Authors Objections and Cavils, p. 44. how the greater part of a Multitude could overrule the rest in the state of Nature, signifie nothing; since if many men meet to chuse a Governour, the first Question must be, whether the Votes of the major part shall not conclude the rest; and then all that agree that they shall, are bound by their own consent; and those that will not agree to it, are still in the state of Nature toward all the rest, and are free to go and set up a Government by themselves, that they all can agree to Nemine Contradicente. And if they disturb those that have agreed, that they will be concluded by the majority, they may be lawfully used as Enemies. And for Proxies or Representatives, though the beginnings of most Kingdoms and Commonwealths, like the head of Nilus, are hard to be traced up to their Heads or Fountains, and no man can positively tell the manner of their beginning; yet if they began from some small quantity of men collected into one Army or City, there needed no Proxies at all, since every man might give his Vote himself. But since the Author puts me to name any Commonwealth out of History, where the Multitude, or so much as the greatest part of it ever consented, either by Voice or Proxies, to the election of a Prince; I will name him two Commonwealths: The first was Rome, where all the People or Freemen consented to the election of Romulus, being formerly proposed. See Dionysius Halicarnasseus, lib. 3. And the second shall be that of Venice, where though it is true the whole promiscuous Rabble did not chuse a Prince, yet all the Masters of Families, or Freemen at their own dispose, had a Vote in the choice of the first Duke and Senate; which plainly proves some Governments to have had their beginning by the consent of the People. And though some Governments have begun by Conquest, yet since those Conquerours could never perform this without men over which they were not always born Monarchs, it must necessarily follow, that those Souldiers or Volunteers had no obligation to serve them, but from their own agreements with their General, and for those advantages he proposed to them in the share of those Conquests they should make.Read likewise our Historians of the manner of Will the Conquerors coming over, and you will finde those that helped him in that expedition were Volunteers, to whom he promised a share of his Conquests; which he after made good to them. Thus were the Goths, Vandals, and our Saxon Kingdoms erected by such Generals of Armies, who not being Kings at home, nor able to subsist there, were forced to seek their fortunes abroad; which when they had obtained, they could have no farther Right over the men they brought with them, than what sprung from their mutual Compacts and Consents. And as for Proxies, as there was no need of them in the instituting of those Commonwealths we read of, since taking their Original from all the People of one City or Army, they might easily give their Votes themselves; but where the People or Masters of Families are more numerous and dispersed than can well meet all together, it is impossible, upon the Authors Concession of an Escheat of the Crown, that ever a new Monarch can be chosen without their making Representatives. As for what he says about the silent Acceptation or tacite Consent (or non-contradiction) of the People, no man will say that it alone confers a Right, where there was none before; as in the case of Conquerours or Usurpers, whom perhaps People dare not speak against: So likewise a tacite Consent to a Government, whether Paternal or Civil, justly instituted, does confer a Right, as I have already granted, and shall now farther shew in answer to the Authors Objections. The Author urges farther, That if Children under years of discretion, and Servants, are not absolutely and in Conscience obliged to submit to the Votes of their Fathers and Masters in the choice of the Government, farther than they receive benefit and advantage by it; then every man is at liberty that does not like the Government,Anarchy of a mixt Monarchy, p. 268.to be of what Kingdom he pleases: and so every petty Company hath a Right to make a Kingdom by it self; and not onely every City, but every Village, and every Family, nay, and every particular man would have a liberty to chuse himself to be his own King if he pleased; and he were a madman, that being by Nature free, would chuse any man but himself to be his Governour; and so no man would be tyed to obey the Government farther than he found it for his interest and advantage, and consequently would think he might lawfully resist it whenever he found it impose upon him what he did not like, or was contrary to his interest.
In answer to which, I grant, first, That every Possessor of a propriety in Land or Goods in any Government, is not onely bound to obey, but likewise to maintain it; since those that first instituted the Government, did likewise tye themselves and all those that should at any time possess those Lands or Goods, to the maintenance of the Government which they had establisht: And it is just and reasonable, that those that claim under such first possessors, should, if they like to enjoy the Lands or Goods, perform the Conditions annexed to them; since men may by their own private Deeds, much more by a common consent, change their Estates with what Conditions they please; which those that afterwards come to enjoy the same under their Title, are certainly bound in Law and Conscience to make good. Secondly, As for all others who possessing no share in the Lands or Goods of a Kingdom, yet enjoy the common benefits of the Government, I conceive they are likewise bound to obey and maintain it as first instituted, for the reasons before given. So on the other side, if they do not like the Government they live under, the world is wide enough, and they may remove themselves elsewhere: for I cannot think that the positive Laws of any Government do oblige any man in Conscience (who is not a slave by his own act or fault) never to go out of the Country where he was born, or can oblige him to return again if he once go out of it, or can hinder him from becoming a Subject to another Prince or Commonwealth, unless he have taken an Oath of Allegiance to the Prince where he was born, and then he is tyed by his Oath not to act any thing contrary thereunto: And if one man may do this, why not more, and so on to an indefinite number? But if any Lawyer tells me there is a native Allegiance due by the Laws of divers Countries precedent to any Oath, and that in some Countries (as anciently in England, and in Russia at this day) there are Laws that no man shall travel out of the Kingdom without leave; I suppose these are but positive Laws, and as such bind onely to a submission to the punishment as to forfeiture of Estate, or the like, but do not bind the Conscience to observe them farther than as it is convinced the thing commanded is more than indifferent in its own nature, and conduces to the good of Mankind in general, or of the whole Commonwealth in particular. Nor indeed was this notion of a native Allegiance known to our Saxon Ancestors, since they counted no man an absolute Subject until he was sworn in the Tourn or Court of Frankpledge, and was entred into a decenary or Tything. And if it be objected, that upon these Terms the major part of a people may go away and leave the Government without defence; that is not likely, nor so much as to be supposed, as long as the Country continues habitable, and the Government tolerable for the Subjects to live under: which if it prove otherwise, I see no reason that God should have ordained any Country for a common Bridewel, where men should be obliged in Conscience to drudge, be oppressed, and ill-used all days of their lives without remedy. And as for the other part of the bad consequences the Author insists will follow, if this natural freedom of Mankind be allow’d, for which you may consult his Anarchy of a mixt Monarchy, where you will see them at large, p. 268, 269. Every petty Company hath a Right to make a Kingdom by it self, &c. I shall answer him as briefly as I can. The Author discourses after that rate, that one would think, if it were not for his Principle of Patriarchal Power, men could not subsist, his being the foundation of all Civil Government and Property. As for the first absurdity that will follow upon the supposal of the Peoples power, That any man might be his own King; I would ask the Author, What if any man, being weary of the world, will withdraw into some Desert? I think he hath then no other Governour than Adam had: Nor is this unlawful; or else all the ancient Hermits, who in times of persecution retired into Deserts, sinn’d in so doing. But for the absurdities that follow the supposal of a natural state of Freedom, As that every particular City or Family may chuse what Government they please, if they do not like what is already established; I have already granted, that where a Commonwealth is established, and men are come out of the state of Nature, and constitute one Politick Body, all the Members of it are obliged in Conscience to maintain this Government according to its first Institution. But if it be to be constituted anew, as upon his Escheat of the Crown among the Fathers of Families, Who are to chuse one? who must take upon him this Fatherly Power over them? The inconvenience will be the same upon his own Principles: For all Cities, Towns, and Families consting of so many independant Heads of Families, if the major part of an Assembly cannot conclude the minor (as this Author supposes) then though all the Fathers of Families in a Nation should agree in the choice of a King, and but those of one Town or Family dissent, these Dissenters, if they do not like the Prince the rest have elected, may certainly (if they are able) divide from them, and set up a distinct Government of their own; since all these Fathers of Families being alike free and independant, can in the state of Nature claim no Superiority over each other. So that the Author, from his own Principles, falls into the same inconveniencies which he finds fault with in those of others; whereas indeed there is no absurdity in this Supposition.
I shall now consider in the last place that part of his Hypothesis (Patriarch. p. 21.) where he supposes, That all such prime Heads and Fathers of Families have power to consent in the uniting or conferring their Fatherly Right of Soveraign Authority on whom they please; and he that is so elected, claims not his Power as a Donative from the People, but as being substituted properly by God, from whom he receives his Royal Charter of an universal Father, though testified by the ministry of the Heads of the People. I have already pull’d up the foundations of this Notion in the beginning of these Observations, by shewing that God hath not ordain’d or conferred any such Power on any particular Father or other Relation, and therefore neither on all the Fathers of Nations or Countries taken together, they not having any Ownership or Property in their Childrens persons, but a Right to govern and direct them for their benefit and preservation; which Fatherly Right cannot be transferred to another, much less survive his person, as I have already proved. Yet to render this as clear as may be, granting him what he contends for, that this Fatherly Power may be transferred to another; I should be glad to know, though the Monarch so nominated by them may have a supreme Power over all their Children and Servants, yet whence does he derive this Right of commanding absolutely over the Persons and Estates of these Fathers of Families themselves: Not from succession from Adam; for his right Heir cannot now be known: nor from their transferring the power of governing their own persons upon him; for then this Right commences from their own Act or Election, and not from the Fatherly power supposed to be at first conferred on Adam. And if they transfer onely their Fatherly or Masterly Authority upon this new Monarch, then he hath onely a Right to govern their Children and Servants, the Persons and Estates of these Fathers not being included in this Grant. And again, if this Election in the state of Nature could confer a Right, then this Monarch must owe his Power to these Fathers of Families; and so these being (as I have already proved) the representative Body of the People, he must receive his Authority as a Donative from them; which he will by no means admit of. But since he will have him properly and immediately substituted by God, from whom he receives his Power of an universal Father, then these Fathers of Families do not create or constitute the Monarch, but onely are Instruments or Ministers to put him in possession: and if so, it is the possession of the Crown, and not their Election, that gives him this Right. But (as the Author words it) He receives from God thisCharter of an universal Father. Upon which Principle, see not to what purpose this Nomination or Election serves; for if any body during this interregnum, can by force or fraud slip into the Throne, he is more properly Gods Substitute, and to be obeyed accordingly, than if he had come in by their Nomination or Election, since he is in possession by the immediate Will of God, and declared by the success. So that these Fathers are in a fine case, after all their Priviledge to elect, since whoever can usurp this Authority over them, must immediately be their Father and Master, whether they ever give their consents or not: For this Author says, Paternal Power cannot be lost; it may be either transferred or usurped, but never lost.Obedience to Government, p. 66, 67. But I have sufficiently exposed the absurdity of this notion before, in what I have said about Obedience to Usurpers, and shall lay it more open when I come to shew in what sence Princes owe their Authority to God.
Therefore, since these Fathers of Families had in the state of Nature an absolute Power of governing themselves, I shall now enquire in the next place, Whether they may not pass over this Power upon some certain Conditions, and reserving some Rights and Priviledges to themselves and Children, upon the making of the Compact with their new Prince. Secondly, How the person so elected owes his Authority to them, and in what sense to God. As to the first, I see no reason but that these Fathers of Families may, if their number be not too great, agree to govern all alike together; and that whoever is a Master of a distinct Family, or a single man at his own dispose, and not a Servant, shall have a Vote in the Government, and that the major part of the Votes shall conclude all the rest, and then it will be as perfect a Democracy as ever was; since, as I have granted already, there was never such a Government where all Women and Children promiscuously had Votes with their Husbands, Fathers, or Brothers. So that if ever there was any such thing as a Democracy in the world, this would be one. Or lastly, if they may all govern themselves, they may as well agree to chuse a certain number of their own Body to represent them and to meet in a common Council or Assembly, and to govern them either for life or yearly, as they shall make the Conditions with them; and then this Government will become an Aristocracy, where a few of those that are reputed the best do govern, though by a Power derived from these Fathers of Families. And if they may bestow this Power upon more than one under certain Conditions, I see no reason why they may not do the same, if they confer it upon one man after the same manner, either by making a Compact with him upon his accepting the Government, how much of this Power he shall exercise, and how much they will reserve to themselves. If they agree that he shall have no more but a Presidency in their Council in time of Peace, and shall not have any power more than that, unless in time of War; he then is the Mouth of the Senate in time of Peace, and their General in War. And of this kind was the Lacedemonian King: And in modern times the ancient Dukes of Venice, when they went out to War: And so are those Caciques that the Indians in the Caribbeé Islands and Brasile chuse to be their Leaders in War, but in Peace have little or no power. So likewise these Masters of Families or Freemen agreeing with him that they would chuse for their Prince, what Power he should exercise or they would confer upon him; as suppose that he should not condemn any of them to death, unless many of the same condition with himself find him guilty; or that he should not make any Laws or levie Taxes for the publick Charges of the Commonwealth, but what they propose to him; and that he swear for himself and his Posterity to observe these Conditions: There will then be produced a Limited Kingdom, consisting of a Prince as the Head of all Civil Power, and of an Aristocratical or Democratical Council, according as that Assembly consists either of the whole, or but of the People. And that such a Government is no Solœcism in Politicks, I shall prove farther when I come to make some Observations upon this Authors Treatise of the Anarchy of a mixt Monarchy. Nor can any man imagine from the Priviledges of the Nobility and People that are found to have been almost the same in all these Northern Kingdoms of Europe, as ancient as the Government, could ever have owed their Original to any other Cause than the Original Constitution of the Government. And if these Fathers of Families may limit the power they confer upon their new Prince, upon this Escheat of the Soveraign Power, and retain some of it to themselves; they might do the same upon the first institution of the Government, either as when so many Masters of Families who had before lived apart and without any dependance upon each other, did agree in the state of Nature to erect a Civil Government among them; or else when a Colony or Army of men was led out by some particular Captains or Leaders for the conquest of a foreign Country, which when conquered and settled, every free Souldier in the Army would certainly have as good a Vote in the creating of their General to be their King, as their Captain or Colonel; since they all were at first but Volunteers, and followed these Captains not from any Civil Authority they had over them, but by their own consent. But since the Author will by all means have it, that these Fathers of Families must needs transfer their power upon one man absolutely, who must be endued with all this power, without any reservation; I shall now give you his best Arguments for this absolute Monarchy, and try whether they are unanswerable or not.
Patriarch. p. 49. His first reason for it, is built upon Bellarmine’s Concession, That God when he made all mankind of one man, did seem openly to signifie, that he rather approved the government of one man than of many. This had been somewhat of an Argument, if Adam’s power had been purely Monarchical over Eve and all his Children and Descendants, as it was not; but if it had, Gods bare Approbation lays no Obligation for all mankind to practise it now, any more than it is a good Argument to say, that it is now not onely lawful, but necessary for men to marry their Sisters, because God approved of that way of propagation of mankind at first. Secondly, God declared his Will, when he endued not onely Men, but all Creatures with a natural Propensity to Monarchy; neither can it be doubted but a natural Propensity is to be referred to God, who is the Author of Nature. What he means by a Propensity in all Creatures to Monarchy, I understand not; neither know I any Monarchy among Brutes, besides that of the stronger over the weaker; and in that Authors sence, the master-Buck in a Herd of Deer, the master-Bull in that of Cows, and the Bell-weather of the Flock, are all of them so many Monarchs, endued with Fatherly Authority over the Herd; or else, which is as good, are Usurpers of that Authority, and so the Herd are all bound in Conscience to submit to them. As for the Monarchical Government of Bees, whether under a King or Queen, I doubt it would pose even those Vertuosi who have glass-Hives, to prove their Government an absolute Monarchy both in War and Peace; and that none of the Princes of the Bloud or other Bee-grandees have any share in it; or that never a Bee in the Hive dare place any Honey in the Combs, or eat a drop of what the hath gathered her self, without the Queens orders. But if the Government of Bees be Monarchical, and that were a good Argument for Monarchy, then that of Emmets might be so for a Democracy, since most Naturalists not being able to distinguish any Kings or Princes in the Ant-hill, do suppose them to be a Commonwealth. But Raillery apart, I would be glad to be fully satisfied whether Mankind naturally incline to be governed by an absolute Monarchy. It is true, the greatest part of the Eastern Governments in the world are absolute Monarchs; but the Author cannot bring this as an Argument of any Propensity, according to his principles: For if all of them were founded upon the Right of Fatherhood, or else the Usurpation of that Right; this proves rather a natural Obligation to this kind of Government, than a Propensity: for an Obligation cannot be drawn from a bare Propensity; Since then a man would have an Obligation to drink Wine, because as soon as he tasts it he hath a Propensity to it, and perhaps may take so much of it until he be drunk, and then sick, and so this Propensity may turn to a surfeit. So some Nations (as Rome for example) having taken a Cup too much of Monarchy, this Surfeit produced an absolute aversion, hatred, and a propensity to the contrary extream. But as the Eastern Nations have inclined to an Absolute, so have the Western either to Commonwealths or limited Kingdoms. Witness the Grecians of old, and the modern Kingdoms of the Gothick Model; as also those petty Governments of several Nations in America. His third Reason is, That God confirmed Monarchy to be the best Government, in that Commonweal which he instituted among the Hebrews; which was not Aristocratical (as Calvin saith) but plainly Monarchical. If the Author here means before they desired a King, it is true that God himself was their King, and govern’d them upon extraordinary occasions, by men divinely assisted or inspired; and such were the Judges whom God raised up to deliver them from the slavery and oppression of their Neighbours; and being looked upon as having a great portion of the Spirit of God, did likewise judge the People, that is, decide difficult Cases by way of Appeal in time of peace. But that the Government was purely Aristocratical, this Author himself confesses even when he denies it: He tells us, p. 50. at the time when Scripture saith, There was no King in Israel, but that every man did that which was right in his own eyes, even then the Israelites were under the Kingly Government of the Fathers of particular Families: for in the consultation for providing Wives for the Benjamites, we find the Elders of the Congregation bare the onely sway Judg. 21. 16. Now what is an Aristocracy, if this be not? viz. an Assembly of the Elders or chief of the Fathers (that is, the best men) meeting, consulting and resolving of publick business. What power these Fathers of Families had at home, is not declared, whether it was independent, or else did submit to the government of its own Tribe: But that it was Aristocratical, is apparent, if Josephus understood any thing of the History or Antiquities of his own Country, which he undertook expresly to write of: For Antiq. lib. 4. cap. he brings in Samuel speaking to this effect to the People (desiring a King) An Aristocracy is the best Government, neither should you require any other sort of Government. But as for the Kings which God gave them afterwards, there is nothing to be drawn from thence for this Authors advantage; for he himself tells us, there is no use to be made of it:Vid. His Observations upon Milton, p. 20. For speaking against Milton’s sence of the words in Deut. 17. 14. he says, Can the foretelling or the forewarning the Israelites of a wanton wicked desire oftheirs (i. e. of a King) which God himself condemned, be an Argument that God gave or granted them a Right to do such a wicked thing? Or can the narration and reproving of a future Fact, be a donation and approving of a present Right? or the permission of a sin be made a commission for the doing of it? So that it seems sometimes when it makes against the Author’s sence, God is so far from approving Kingly Government, that it is a sin for the People so much as to desire it. But it is likewise as great a Question, whether after Kingly Government was established, it was likewise absolute, so that the King might put any body to death, right or wrong: For we find, 1 Sam. 14. 45. the People rescued Jonathan out of the hands of his Father Saul, and would not permit him to be put to death for his breach of the rash Vow which Saul had made; nor is it imputed to the People, that is, the Army, for a sin. Neither could Ahab take away Naboth’s Vineyard and his Life together, but by colour of Law, and a legal Tryal. Neither could King Zedekiah save Jeremy the Prophet from the power of the Princes who cast him into the Dungeon: for Jer. 38. v. 5. Zedekiah said, Behold, he is in your hand; for the King is not he that can do any thing against you. His fourth reason is, that God in Scripture mentions not, nor takes notice of any other Government than Monarchical. This is but a Negative Argument at best, the Scriptures not being written to teach us Politicks, but to declare God’s Will, and to shew us his merciful and gracious dealing with the Jews, notwithstanding all their backslidings, and rebellions against his Commandments. His fifth reason is, that Aristotle saith in his Ethicks, chap. 11. That Monarchy is the best form of Government, and a Popular Estate the worst: The words are, τȣτὤν [Editor: illegible character] β[Editor: illegible character]λτίςη βασιλεία, χειϱίςη [Editor: illegible character] τιμοϰϱατία. Which, though true, does not enforce any Obligation to the one more than the other: for though a man be obliged to his own preservation, yet he himself is the onely Judge of the means; and if he erre, and use the worst means for the best, they are not in fault if they acted as well as they could, and to the best of their knowledge, for that end. Neither does it follow, that there are no more sorts of Government than these two to be chosen. Nor is it any better Argument, that the world for a long time knew no other sort of Government but onely Monarchy; and that the Platforms of Commonwealths were hatched amongst a few Cities in Greece, and that they were first governed by Kings, until the wantonness, ambition, or faction of the People made them attempt news kinds of Regiment. But let any one read the Greek Histories, and he will find the cruelty and tyranny of Kings did more frequently give occasion to the People to run into Commonwealths, than either the ambition or faction of the People. And as for the antiquity of Monarchy, the alteration of it rather makes against him, since the whole Body of a People seldom alter a Government, unless they find themselves hurt by it, and that it proved inconvenient for them. I shall not dispute which is the better Government, Monarchy or Commonwealth, since in my own judgment I incline to the former, where the Monarch is good. And though I will not affirm, as the Author does,Directions for Obedience, p. 71.That even the Power which God himself exerciseth over mankinde, is by the Right of Fatherhood, as he is both King and Father of us all: Since besides his absolute power, and his being the sole cause of our production, he is also endued with that infinite Wisdom and Goodness, that he still orders all things for the good of his Subjects, and so hath besides his Power, the highest Right to govern, as the best and most perfect being; So likewise Monarchs, as far as they imitate the divine Wisdom and Beneficence, have the like Right to be called Gods Lieutenants. Nor shall I trouble my self, as the Author does, (p. 67. and so on to 73.) to compare the Mischiess and Inconveniencies that have been found in absolute Monarchical and Popular Government, there being various Examples both of Cruelty and Injustice in both; and I think they are both the aptest of any sorts of Governments to run into Extreams: and I know not whether there have not been found out a Regal Government mixt with somewhat of an Aristocracy or Democracy, which if truely observed, were freest from the inconveniencies of either. But this Author is so full of the mischiefs of Commonwealths, that he sometimes mistakes in History, and makes those Disorders to arise from the faults and licentiousness of the People, which proceeded indeed from the Usurpation of their Power. Thus he makes it the height of the Roman Liberty, that its Subjects might be killed by those that would; and sets forth the Tyranny of Sylla as an effect of the Roman Freedom, when indeed it was rather an effect of the absolute Monarchy usurped by Sylla during his Dictatorship. So that Dionysius Halicarnasseus gives us his judgment of those actions of Sylla, in these words:Lib. V. circa finem.I would onely shew, that for these wickednesses the name of Dictator became hateful: for all things seem good and profitable onely whilst they are well used, which if they come to be depraved by those that are in power, the same things are counted wicked and unprofitable. So likewise (p. 73.) he makes the Multitude or People of Rome to have elected Nero, Heliogabalus, Otho, and Vitellius for Emperours, and to have murdered Pertinax, Alexander Severus, Gordiun, and the rest there named; whereas whoever reads the Historians of those times, will find it was not the People or Senate, but the Army that either elected or murdered Emperours: And as for Nero, the Senate had never dared to have declared him a publick Enemy, had he not become so odious and intolerable, that nobody would take Arms for him; and that the Army under Galba, which had revolted and chosen him Emperour, was then marching to Rome. So that indeed these Emperours were torn in pieces by the Dogs they themselves fed, and kept constantly in pay to prevent the People, who had not yet quite forgot their former Liberty, from recovering it again. And the People of Rome had just as great a hand in the setting up and putting down Emperours, as those of Stambola have had in the deposing or setting up those Grand Seigniors which the Janizaries (their Guards) have strangled of late years, setting up their Uncles or Brothers in their rooms; or as the People of England had in setting up either Oliver or his Son Richard for Protectors. But leaving these lesser Mistakes, which I look upon onely as the Transports of the Author’s Resentments against Popular Government, in which I shall not contradict him in the main; onely I would fain lay the Saddle upon the right Horse, and not blame them for the faults committed by a standing Army which in those times domineer’d over both Emperour and the People of Rome, and imposed upon them what Emperour they pleas’d, though never so base and unworthy. I shall therefore in the last place come to the second point I before proposed, whether the person on whom the Fathers of Families upon this Escheat of the Crown confers their Authority, owe the same to them, or else immediately to God. The Author (in the passage before cited) will by no means grant, That the person so elected claims his Power from the People, but as being substituted properly by God, from whom he receives his Royal Charter of an universal Father, though testified bythe Ministry of the Heads of the People. Which Assertion is built upon grounds altogether false and precarious, as I have already proved: For first, he here supposes, That God hath given by divine grant, all Fathers in the state of Nature, an absolute despotick power over the persons of their Sons, so that they may sell or otherwise transfer this Fatherly power to whom they please. And secondly, That the Children are as much obliged to obey those to whom the Fathers transfer this Right, as they were their Fathers themselves. Thirdly, That this Power so transferred, does not properly derive it self from the Fathers who so pass over their Fatherly power, but to God, who conferred it on them at first. In which Hypothesis every one of the Propositions are false: For, first, I have proved that no Father hath by any divine Grant or Charter, an absolute despotick power over the person of his Son: Or, secondly, that God hath given Fathers a power to bequeath or transfer their Authority to another, so that the Grantee should by this Assignement succeed to all the Rights of a Father: and therefore the two former being false, the last of Princes receiving their power immediately from God, which is built upon them, must be so too. And besides, it is evident, that these Fathers do not onely here pass over a Fatherly power of governing of their Wives and Children, but likewise that of governing themselves, not as Fathers, but as men; since they must transfer this power, whether they had Wives or Children or not, else they might onely pass over to this new Monarch their power over their Wives and Children, and reserve the power of governing themselves still: So that it is plain, there is a power different from that of a Father, to be transferred. But if it may be replayed, They may chuse themselves a Father if they please; indeed I have heard of a mans adopting of a Son, which still must be by this Son’s own consent; yet I never heard of a Son’s adopting himself a Father, or that a Father, which is a natural Relation, can be created at mans pleasure: it is true, a Lord or Master may, but he cannot thereby challenge that natural Reverence and Gratitude due onely to a Father. So that if Fathers have a power of governing themselves and their actions in the state of Nature, and that they can confer this Right on any other, it is evident they do not confer this as a Paternal power on their Monarch, which the Author supposes to be granted by God to all Fathers.
We shall now come to the second Head at first proposed, and examine what power a Master of a separate Family hath over his Slaves or Servants in the state of Nature. First, As for hired Servants, though it is true they may submit themselves to the will and disposal of another what Diet they shall eat, and what Clothes they shall wear, what work they shall do, and what hours of rest or sleep they shall have to themselves; and that the Master may beat or correct him if he do amiss, and through wilfulness or negligence disobey his Masters commands; and that these are the Conditions that most hired Servants, being part of their Masters Family, do serve upon: yet is this not so properly an absolute Obedience, as a duty of Truth and Honesty in the Servant; since as he is bound to perform his part of the Contract, so likewise is the Master to perform what he hath promised them, since this service is neither absolute nor perpetual: so that when his time is out, he is free of course. And if in the mean time the Master does not allow him sufficient Food, Clothes, or hours of rest, so that he may be able to perform his work, this Servant in the state of Nature (if he cannot perswade his Master to use him better) may without doubt quit his service as soon as he can; since he was to yield his Master his Labour upon certain Conditions, which not performed on the Masters part, the Servant is not obliged any longer to perform his part of the Bargain, in living with him or serving him. And as for those that have sold or yielded themselves up as absolute perpetual Servants or Slaves to the government of another, I see no reason why they may not in this state of Nature make certain Conditions with their Master, before they will give themselves up to him, since if a man may covenant with another upon what condition he will serve him for seven years, why may he not do the same for his whole life? So that upon the non-performance of these Conditions, this kind of Servant hath the same remedy against his Lord as an hired Servant may have. And of this sort were our ancient English Villains, who though they could claim no property against their Lords, either in Goods or Lands; yet if the Lord killed his Villain, the Wife had an Appeal of Murder of the death of her Husband. Since no man can be supposed so void of common sense (unless an absolute Fool, and then he is not capable of making any Bargain) to yield himself so absolutely up to anothers disposal, as to renounce all hopes of safety or satisfaction in this life, or of future happiness in that to come. So that I conceive that even a Slave (much more a Servant hired upon certain Conditions) in the state of Nature, where he hath no civil power to whom to appeal for Justice, hath as much Right as a Son or Child of the Family, to desend his life, or what belongs to him, against the unjust violence or rage of his Master. Nor do I think any places of Scripture, if well considered, command the contrary: For as for the places in St. Paul’s Epistles, Ephes. 6. 5. Servants, be obedient to them that are your Masters according to the flesh, with fear and trembling. And Coloss. 3. 22. Servants, obey in all things your Masters, &c. does not extend to all things that are, but only to things lawful for them to do, that is, that were not against the Principles of Christian Religion. And in this it is that St. Peter, 1 Pet. 2. 18, 19. commands Servants or Slaves (which there were all one) to be subject to their Masters, not onely to the good and gentle, but also to the froward. For this is thank-worthy, or grateful, if a man for conscience towards God, εἰ διὰ συγείδϰπι Θιȣ͂, endure grief, or trouble, suffering wrongfully. Which words seem to import, that Servants ought to bear with a great deal of bad usage from their Masters; but does not command them in the state of Nature to give up their Lives or Goods to their Masters, without any resistance. But if any shall urge the Example of Christ alleadged in the third verse, who suffered (even to death) for us; I conceive that does not extend to a suffering or submission unto all things, but to such things for which Christ himself suffered, viz. for Conscience toward God, that is, for matters of Religion; which is likewise most agreeable to the sence of the words that follow: For what glory is it, if when you are beaten for your faults, you take it patiently? but if when you do well, and take it patiently, &c. Now who ever can imagine a Servant to be beaten for doing his duty? Therefore doing well, here, signifies the profession of Christianity; which they were not to deny, though they had unbelieving Masters. Therefore since no interpretation of Scripture ought to be against Reason, that can never tell a man that he ought to yield up himself so wholly to anothers disposal, as to give his Master an absolute right and power over him to kill or maim him without cause, or to be so basely and penuriously used as perpetually to suffer hunger, cold, and nakedness, or the like; so that his life should rather become a burden and a punishment, than a satisfaction. For since we have no notions of happiness but in life, nor in that farther than it is accompanied with some contentment of mind, no rational man can be supposed to consent to renounce all the pleasures and ends thereof, (and which onely make life desireable) much less the Right of living and preserving himself. So that even such a Slave may without doubt in the state of Nature, run away from his Master, and set himself at liberty if he can, since his Master hath not performed his part of that tacite condition of his Service; which was, that this Master should for his Labour provide him all the necessaries of life, and suffer him to enjoy the ordinary satisfactions of it. Nor is the worst of Slaves, that is, one taken in War, so absolutely at his Masters dispose, as that because he hath him in his power, he hath therefore a Right to use him as he will: For first, as long as the Conquerour keeps his Slave as a Prisoner, and makes him work in Fetters, though he hath given him his life for the present, yet there does not thence arise any Obligation in the Slave to Obedience; so that the Slave may yet run away if he can, nay, kill his Conquerour, unless he will come to other Terms with him, and make him promise him his Service and Obedience upon the granting him his Liberty and enjoyment of the ordinary Comforts of Life: And if he cannot enjoy these, I believe there is no sober Planter in Barbadoes (who are most of them the Assignees of Slaves taken in War) but will grant such a Slave may lawfully run away if he can. Therefore it is not true what Mr. Hobbes says, That no injury can be done to a Slave: for his reason is not valid, that because a Servant hath absolutely subjected his will to that of his Lords, therefore whatever he does, he does it by his Master’s will, in which his own is included, so that volenti non fit injuria: this proves no more than that the Slave hath no just reason of complaint though his Master give him Victuals that does not suit with his palate, orprescribe him Work which may not please his humour. So on the other side, what rational man will affirm, that this Slave hath given up the natural Rights of living, and being preferved as a man, but that injury may be done to this Slave as any other Servant, if the Task imposed upon him be beyond his strength to perform, or if he be beaten or like to be put to death without cause, or that he hath not Food sufficient to enable him to do his work? for he may still require at his Masters hands the usage of a man, and of a rational Creature. So likewise though this property in the person of a Slave taken in War, may be assigned over to another, yet the Right of commanding a Slave by his own consent, cannot be so, farther than it was agreed upon in the Bargain between him and his Lord: for if he covenanted to be a Slave onely to his Lord and no man else, the Lord cannot in justice assigne nor sell him to another, without his consent, nor leave him to his Heirs; since there might be certain peculiar reasons wherefore a man might subject himself to this man, and not to another. So likewise in absolute Empires which began purely from Conquest, though it is taken for granted that they may be aliened at the Will of the Conquerour, yet it is otherwise in Subjects who have submitted themselves upon certain Conditions, and who have some Liberties remaining to them; and much more in those Kingdoms which are limited by their Institution: for there, not properly the Persons of the men, but the Right of governing them, is said to be transferred as far as it is accompanied with the Honours and Profits annexed to it. For although a Prince may say of his Subject, He is my Man, yet this Property in him is much different from that whereby a Prince calls his Horse his own: for in the first sence he means no more than that the Right of governing this man belongs to me, and not to another, yet cannot be extended as far as he pleases; but that Property which is attributed to a Beast or other Goods, includes a Right of using or consuming that thing as he will himself, without any other reason than that it is his own. But although the Laws of Humanity do not permit, that however a man hath carried himself towards us, all Remains of that Primitive Equality between men should be quite extinguished towards him; and after a man hath entered into a state of Peace with us, that he should be dealt with as a Brute or inanimate thing: though it is true that the Cruelty and Avarice of divers Nations hath proceeded so far, that Slaves are reckoned amongst Houshold-goods, and are ordered not so much by Command, as by the force of an absolute Dominion and Property; yet this is not from the Law of Nature, but the Civil Law of that particular Commonwealth. So that though I grant by the Roman Civil Law, a man might have said of a Slave in the same sence as of a Beast, This is mine; yet this was not from the Laws of Nature, but Custom of that Empire, who taking many Captives in the Wars, almost all their Servants consisted at first of such: yet this is not allowed of in our Law, nor yet in France and other Countries. And this will serve to demonstrate what this Author lays down in his Preface to his Observations on Aristotle’s Politicks to be false, That Adam was a Father, King, and Lord over his Family, and that a Son, Subject, and Slave, or Servant, were all one at first; since it may hereby appear that there is a real difference in Nature between every one of them. And though the express names of Subject, Tyrant, and Slave, be not found in Scripture, yet the things are, and that as plainly described as if they had been called so; though the Hebrew being a barren Language, hath not distinct words for them, without Epithites or Circumlocutions: For (1.) As to Servants, it is apparent out of the Law of Moses, Exod. 21. v. 2. Levit. 25. 39. 44. Deut. 15. 12. there is a vast difference between Hebrew Servants and those that were of other Nations; these latter onely being called Bondservants, whose service was perpetual, and who were as a Possession and Inheritance to their Lords; whereas the former were not to be made to serve with that Rigour, but onely as hired Servants to be set free in the seventh or Sabbatical year. And it is frequent in the Law as well as Prophets, to make mention of the Wages of an Hireling. So that nothing is plainer, than that even among the Jews, there was a difference between hired Servants, Hebrew Servants for years, and forreign Slaves for ever. And before that, when Jacob served Laban for his two Daughters, it is evident that there was then a distinction between an hired Servant and a Slave, since there was a Contract for what Wages Jacob should serve him: And though Laban, for ought appears, according to the custom of those times, was an Independant Father of a Family, as well as Jacob was afterwards, and consequently a Prince, as this Author needs will have it; yet we do not finde it charged upon Jacob as a Crime, no not by Laban himself, but onely as a matter of unkindness, that he had stolen away from him with his Daughters and the Goods he had yearned in his service. So likewise, though the word Tyrant is not found expresly in Scripture, yet the thing it self is, if a Tyrant be one who abuses his Kingly Power to the Oppression of his Subjects; or else Pharaoh in Egypt, and those Kings who after the Israelites coming out of Egypt so cruelly oppressed them, were all good and lawful Monarchs, and had as much Authority as their own Princes which God set over them: and it had been a wicked thing in them to have resisted them and driven them out as they did, whenever they were able; since they were in possession, according to this Author, by the permissive Will of God. Having now shewn the difference of the Power of a Master of a Family, from that of a Father, and that the Right which a Father hath in his Children, is divers from that which he hath in his Servants or Slaves; I will now consider in the last place the Power which Adam had, or any other Husband now hath over his Wife in the state of Nature.
I have already proved that the Authority of the Husband over the Wife, commences from that Contract we call Marriage; and though by the Word of God the Woman is made subject to the Man, yet the reason of that subjection naturally depends upon the Mans being commonly stronger both in body and mind than the Woman; and where that ceases, the subjection will likewise of course cease, even amongst us: For we see that if a Husband be a foolish or a careless man, and either cannot or will not govern his Family and Estate, the Wife may and does, and oftentimes him into the Bargain: Nor does any one finde fault with her for so doing, since somebody must govern the Concerns of the Family; and if the man either cannot or will not, who hath more Right or Interest to do it, than her, who hath an equal share in the happiness and well-being of her Family and Children? Neither can there be at once two absolute Heads in the same house commanding contradictory things, without confusion, since the Children and Servants could never tell whom to obey. So that even this subjection of the womans will to the mans, commanded by Scripture, is still with a supposition that the man is capable or willing to govern: for if he be not, he loses this Prerogative of course. But suppose he is able to govern her and the Family, the Question is, What kind of Power he hath over her, as a Husband, in the state of Nature? I grant, that if she made it part of her Bargain to be so absolutely subject to him as that he might command her in all things as a Slave, and make her do what work he pleased to appoint, and that he may either turn her away, or put her to death, if he find her imbezilling his Goods or committing Adultery; the woman in this case is bound by her Contract, as another Servant, who makes her self so by her own act or consent. But this is not the Question, but what power the man hath naturally over his Wife, as a Husband, supposing no such Conditions or Bargain were made at the Marriage. It is true indeed that the Wife ought to be subject to the Husband in all things tending to the good and preservation of her Children and Family, or else the Family would have two Heads (as I said before.) But it does not therefore follow, that he hath such a despotick power over her, that she may in no case judge when he abuses his Fatherly or Husbandly power: For suppose the Father of a Family, in the state of Nature, should in a mad or drunken fit go about to kill or maim herself or one of his innocent Children, can any body think this were Rebellion against the Monarch of the Family, for the Wife to rescue her innocent Child or self out of his hands by force, if she could not otherwise make him be at quiet? Or suppose the Husband in such a fit should command his Wife to deliver him a sum of money which she had in her keeping, when she was morally sure that he would presently play it or otherwise squander it away; will any rational man affirm that a Wife may not deny to deliver her Husband his own money in such circumstances? So that it is evident, she never so absolutely submitted her will to his, as not to reserve to her self the faculty of a rational woman, as not to judge when her Husband would evidently destroy her self or Children, or absolutely ruine the Family, when he was not in a capacity to govern himself. So likewise if the Husband command her to do any thing against her Conscience, or the Laws of Nature, she is not obliged to obey him: For though the Wife in all matters peculiar to the Marriage-bed, and in all other things that relate to the well-ordering the Family, is obliged to submit her will to that of her Husband; yet it does not therefore follow that she is an absolute Slave, to be commanded or compelled in all actions not tending to this end. And if it be objected, that as Commonwealths cannot be governed without some coactive Empire, so Marriage cannot well subsist by a bare Compact, or the power of Friendship alone, to oblige the Wife to her duty, in case she prove disobedient. As I do not deny but perhaps it may be lawful for the Husband, as Head of the family, in some cases, if the Wife prove palpably obstinate and disobedient to his reasonable commands, and will not hearken to Reason, to compel her by correction; and the rather, since Christ hath taken away the liberty of Divorce, whereby a man might be rid of a cross Wife (as of an ill Servant) if she did not mend her manners; and therefore he hath no way else to mend her, if she will not do her duty by perswasion and fair means: Yet this Power is very rarely to be used, since it is onely some women that either need or will endure to be so handled; and all discreet and rational Wives, as well as Servants, will do their duty without it. Yet this Example of the absolute Obedience of Subjects in a Commonwealth, does not agree with that of a Wife to her Husband, as Head of the family; since Families (especially those who consist of a good number of Children and Servants) may have a twofold end: the one peculiar to it self, the other common with that of Civil Governments. The common end is considered in that defence and security, resulting from the conjunction of many into one Body; in which, although an absolute Empire be necessary, yet since the Wife being but one weak woman, can contribute but very little to this end, it may very well suffice to the peace and unity of the Family, if she be tyed to her Husband onely by a simple Compact by way of Friendship, without any despotick power over her. But the peculiar ends of Matrimony, which are the procreation and breeding up of Children, and providing things necessary for the Family, may well enough be obtained, although the Husband be not invested with this despotick power (which supposes that of life and death, or other grievous punishments) and though the Wife be tyed by her Compact only and the Bonds of Amity; of which Compact the Husband being the Principal, does imitate that of an unequal League between Civil States, in which the Husband being the Head, the Wife owes him all due respect and observance; and he on the other side owes her maintenance and protection. Therefore I am not of the opinion of some, who will have the Husband, in the state of Nature, to be endued with an absolute power of life and death over his Wife; and that in this consists the very quintessence of Marital power, because, forsooth, that all Empire, when it is in its proper subject, and neither is exercised precariously by any man, nor circumscribed by any superiour Power, does always import jus vitæ & necis over the Subject. But this is not so: for a man, in the state of Nature, may become part of anothers Family, and yet make it in his Bargain that the Master of this Family shall not put him to death or misuse, unless it be for Crimes that deserve death by the Law of God or Nature, or become a publick Enemy. And the Supposition is false, which first supposes such an absolute Empire to be in the Husband, as in the proper Subject; neither is them any absolute power of life and death necessary to the ends of Marriage: for if the woman commit small faults, and will not be amended, the Husband may correct her; if greater (as suppose Adultery) he may put her away, and likewise chuse whether he will provide for the Children which he hath reason to believe he did not get himself. If she murder her Children, or commit any other abominable sin against Nature, she may justly be cut off from the Family, and punisht as a common Enemy to Mankind; and so she might be if she had not been his Wife, but Servant, or other Member of the Family. Yet I do not affirm, that this despotick Empire, or power of life and death, is against the Laws of Nature, or inconsistent with the state of Matrimony, any more than the absolute power of a good Prince should destroy the love of his Subjects towards him, or the reverential fear we ought to have of God, destroy our love of him. Therefore as I have allowed that the woman may confer such a power on her Husband over her self, in the state of Nature; so I grant this absolute power may likewise be conferred on Husbands by the Civil Laws of particular Commonwealths. Thus it is murder for a man in England to kill his Wife taken in the very act of Adultery; but it is not so in Spain, Italy, and most other Countries, if he kill his Wife if he find her alone in another mans company, though it cannot be proved they have done any thing else to deserve it.
Having now gone over the whole power of the Head of a separate Family, as a Father, Husband, and Master, and proved that no man is a Slave by Nature, or without his own Consent (as a Slave by Compact) or without his fault, as a Slave taken in a just War; and that no Master of a Family hath such Right in the person of one of these, but that he may do him injury if he take away his life, or punish him without cause; and that such even such, a Slave may lawfully set himself free, if the Master do not perform his part of the Bargain. And having in the last place shewn what power a Husband hath over his Wife in the state of Nature, and from whence it takes its Original; it is now time to answer those Arguments and Objections made by this Author and others, That the Prince or Governour so elected by the Fathers of Families, or Freemen at their own dispose (which I hold to be equivalent to the whole People) hath not onely his Nomination from them, but that it is from God alone that he derives his Soveraign Power and Authority, with which he is endued upon his first acceptance of the Supreme Power; and if he should accept it with any limitation, it were to restrain that Power which God hath conferred upon him by his being made the Supreme Magistrate, and would hinder him from performing that great Duty as he ought. In answer to which I have already proved, that no such unlimited Power was conferred by God to any private man in the state of Nature, as a Father, Husband, or Master; and therefore could not be given to any Civil Soveraign, who is supposed to have no more power than the Father of the Family had before. A second Objection is, That no particular man hath in the state of Nature any power over his own life, and therefore cannot have any over the life of another man; and if one man hath not this power, neither have the People (which is but a universal consisting of fingulars) any such power, and consequently cannot confer it on any other man: therefore every Prince must have this Soveraign Power of life and death, not from the People, but from God. In answer to which, I shall first of all deny the consequence, that because God hath not given a man a power over his own life, therefore he can have none over the person of another. For God gave man a Right to preserve, but not to destroy himself, and so cannot dispose of his own life whenever he is weary of it. Therefore since the first Law of Nature is Self-preservation, it is lawful for a man to use all means conducing to this end, that do not prejudice another mans Right in his particular life or happiness; so that if any man assault me in the state of Nature, I may desend my self, and consequently kill the Assailant, if I cannot otherwise escape. But perhaps it will be replyed, that the intention here is not principally to kill the man, if it may be otherwise avoided; and that this Right is given men onely to preserve their lives from being taken away at another mans pleasure, but that no private man hath power to revenge an injury done to another or ones self, in the state of Nature, with death, but God, or him to whom God hath committed this power, according to St. Paul, Rom. 12. 19. Dearly beloved, avengs not your selves, &c. I shall prove that this place does not destroy that which I maintain: for I grant that all Revenge taken, as the satisfaction some men take in the very doing evil or prejudice to another, is unlawful, even by the light of Nature. Secondly, Likewise where Magistracy is instituted, who is to bear the Sword for the punishment of evil doers? I grant all return of like for like to be unlawful, since he is appointed as a publick Judge to right those that are injured, and maintain the common Peace. But no Text forbids men to punish injuries done either to themselves or those they have a concern for, in the state of Nature; for this is not Revenge, but a natural Punishment to deter men from committing violent and unjust actions that disturb the peace of humane Society, since the wrong doer declares himself thereby a publick Enemy to all Mankind. And on this account Cain feared that (not his Father onely, hut) every one that met him, would slay him, that is, punish him for the death of their Brother or Kinsman. And if this were unlawful, then all War must be so in the state of Nature; and Princes being always in that state in respect of each other, could never make any War for the gaining of Rights usurped, or to punish for Injuries received. So that this power which a man in some cases hath over the life of another, is onely given him by God for the common good and preservation of Mankind, of which every particular person is a part: and so this power conferred upon the supreme Magistrate is no more, nor extends higher than that, though there are more things requisite to the publick peace and safety of a Civil Government, than are to humane Society in the state of Nature: And from hence do supreme Powers derive their Right of making positive Laws, and ordaining higher Punishments for Offences than the Laws of God or Nature do expresly appoint, as for Theft, Coining, and the like. Nor is the Antecedent true, that no man in the state of Nature hath a power to dispose of his own life: For though it may be true that no man hath a Right to make away himself whenever he dislikes his being here; yet it does not therefore follow, but that for a greater good to the publick, any man, nay a Prince himself may lay down his life for his Peoples good: And therefore I doubt not but the Example of Codrus the Athenian King was not onely lawful, but highly commendable, in sacrificing his life for the good and safety of his People, supposing that all their Estates and Liberties depended upon that one Battel; much more for a private man to lay down his life to save some publick person highly useful to humane Society. And this much does the Apostle Paul himself seem to admit, Rom. 5. 7. when he says, For scarcely for a righteous man will one die: yet peradventure for a good man some would even dare to die. Where by a righteous man, Expositors understand one who had sufficiently done his duty in an ordinary private capacity, yet contributed little to the publick good; whereas by a good man, is understood some person highly useful and beneficial to others, and for such a one a man may not onely dare to die, but actually lay down his life if occasion be. A second Objection is, That if the supreme Magistrates Authority be derived from the People, then this Authority must be either inferiour or superiour to it. If inferiour, how can the People be commanded or governed by that which is inferiour to its self? If superiour, how can the Effect be more noble than the Cause, since neither any particular Person nor the whole Multitude had Soveraign Authority, and therefore could not confer it upon others. To this I answer, That this Soveraignty being but the submission of the Wills of the Persons that institute it to the Will of him on whom they confer it, that he should thereby make use of all their Powers for the common good of them all; and being therefore not any physical but moral Quality, may be produced in another by their Compact, who had it not formally in themselves before: As from the Voices of divers men singing together, there may arise a Harmony which was not in their particular Voices alone, though each of these Voices must be musical to produce it. So every particular person having before, in the state of Nature, a Right to preserve himself and to govern his own actions, when many men joyn together to confer this care upon one or more there arises a Political Power indeed more noble, yet of the same kind with the other: for if the singulars had it not before in some measure, the universal could not have it all. So that it is absurd to alleadge, that Soveraignty is not derived from men, because it cannot be found among a mans natural powers or faculties in the same manner, as it is in the supreme Magistrate, as if there were no other than Physical Qualities in nature; yet even in Physicks, admitting Epicurus Hypotheses of Atomes to be true, there will arise from their conjunction that quality in bodies which we call divisibility, and yet each particular Atome considered apart, being indivisible, had it not alone. But to answer a distinction they use in this matter between the immediate efficient and the immediate constituent modus of Soveraignty; they confess indeed, That by this Election and Transferring of the Power of the Fathers of Families, the Civil Soveraign is declared, but that it is from God alone that he receives his Soveraign Authority. If they mean by this transferring of Fatherly Power, any absolute Power which God hath by any Law divine or natural, conferred upon the Fathers over their Children and Families; I have already proved, that this Fatherly power is neither absolute, nor assigneable to another. If they mean any other Soveraignty distinct from this, then they must needs conceive this as an abstracted Ens, or Physical quality, which is immediately produced by God, and conferred upon the person of the Soveraign at his Election or Declaration: but I see no reason of constituting here more Causes than needs (as one efficient, and the other secundary) or why God should do that by an extraordinary unintelligible way of acting, which he may perform by a plain and easie one, since it is contrary to his other methods of acting in the course of Nature: For frustra fit per plura, quod potest fieri per pauciora; and supposing as I have already proved (and as divers who are sufficiently for Kingly Power do admit) that the People or Heads of Families have a freedom of setting up what kind of Government they please, either Monarchical or other; and if there were none other but Aristocracies or Democracies in the world, I would fain know what then would become of this notional Majesty or Soveraignty? Now if any man should ask them where this abstracted Soveraignty exists before it finds a King to settle upon, and whether it be a Substance or an Accident: if the latter, how it can subsist without its Subject? or if the former, when it was created whether it was at the beginning of the world, or like the Souls of men, creando infunditur, & infundendo creatur? or whether there be one single Soul of Soveraignty diffused all over the world, which being distributed, does, as it were, animate so many Kings? Also whether this Majesty dies with the Monarch, or else survives him as the Soul does the Body, and by a new Metempsychosis immediately transfuses it self into his Successour. If the Gentlemen of this Author’s Principles please but to consider these difficulties, I’ll undertake they will finde them as hard to be resolved as any the Author hath proposed about all the Peoples agreeing or being the cause of this Soveraignty: But I will not deny that God is properly the original and efficient Cause of Soveraignty as of all good things, and particularly of that power whereby every individual Freeman in the state of Nature, hath a power to dispose of his actions for his own preservation and the common good of mankind. And the particular powers of many men being put together, constitute that which we call a Politick or Civil Power. And therefore his last Objection is easily answered, That if the People be any Cause of Soveraignty or Civil Power, they must have received this power from God, by which they can confer it on any other: But it can no way be proved that they received it from God; for God having, as I said, imprinted upon mans Soul such a tender care of his own good and preservation, and hath likewise enjoyned him to preserve Peace and Order amongst men, in order to the common good and preservation of mankind, and hath likewise given him reason to find out all means necessary for this end, amongst which the constitution of Civil Government must be reckon’d as the principal; who can doubt but the faculty of constituting of Civil Government likewise proceeds from God the Author of Truth and giver of all good things? Thus the invention of Cloaths, Fire, and Houses, proceed from God, though they were found out by man as his Instrument, for a help to his necessities and natural weakness.See Garcilasso de Vega’s History of Peru. And as in some Countries there is little or no need of Cloaths or Houses, where the weather is always warm and serene; so likewise God hath not imposed upon any People an absolute Obligation of constituting any Civil Government at all, if they can live without it, or at least of its exercising farther than they have need of. Thus among the West-Indians,See Lerius Hist. Brafile, cap. 18. History of the Caribbe Islands, lib. 11. c. 19. in several parts of America, where they have no distinct propriety in Land, more than in their little Gardens, and Cabins, (which in Countries so slenderly inhabited as those, where Land is worth nothing) every man enjoys, by a tacite consent, a living upon Venison, Fish, or other Animals, and Fruits which the Woods produce; they need no Chattels, nor Dishes, but a few Earthen-pots or Cups of Calebasses, besides their Bows and Arrows, and Fishing-tackle, which every man knows how to make for himself. So likewise having no need of Clothes, and living but from hand to mouth, and taking care onely to provide meer necessaries of life, as they never have any superfluities, so they have no Disputes about them: and most of their things being easie to be provided, they are seldom known to steal them one from each other; and if a man catch another stealing any thing from him, he will be sure to beat the Thief soundly, or may be mark him with the sharp Tooth of a Beast they call an Agoutye (which is the disgracefullest punishment any man can suffer:) so that one of the main ends of a supreme power among us, viz. to decide Controversies about Property, and punish Thieves, are there of no use. And as for other Injuries, such as Maims, Adultery, and the like, they have no certain Judges for any of these things; every man that is injured in any of these cases, being his own Judge and Executioner, observing that Law of an Eye for an Eye, and a Tooth for a Tooth; onely in Adultery the man hath power to kill both his Wife and the Adulterer, if taken in the act; and in Murder, and great Hurts or Maims, where the party injured is not able to revenge himself, his neer Relations will not fail to do it; and if they should omit, they would be looked upon as Cowards or infamous: so that being naturally loving to each other, and having no words of disgrace to quarrel about, and other Quarrels happening but seldom, and no man maintaining or taking the part of the wrong-doer, or revenging the death of a Murderer or Adulterer, they have lived many Ages without any common Power to keep them at peace among themselves; and yet they have much fewer Crimes committed amongst them than us. It is true, they have Captains or Cacicks among them, but they have no power but in time of War; and when the Expedition is ended, though they pay them reverence and respect, and make them preside in all their Councils and Assemblies, yet they have no Authority in time of Peace to punish or question any man. So that if they lived in Islands which were either far distant from others, or else were inaccessible, and would make no forein Expeditions, they would not need so much as this Cacick, and so could live together without any other Government than that of the Fathers of Families over their Wives and Children. But perhaps it will be said, these are Man-eaters and barbarous People, and so are not to be quoted as Examples for the rest of mankind. It is true, the Brasilians eat their Enemies taken in War, but the Caribbes do not. But as for the Observation of the other Laws of Nature, I will leave it to any man to judge which part of mankind observe them best; those that can live peaceably together without either Judge or Gallows, or we that can scarce be at quiet, though we have them. But I have done this, onely to shew an intelligent Reader what are the true reasons of the necessity of a Civil Power amongst us that have a full propriety in all Lands and Goods by the particular Laws of our Countries.
Having now I hope dispatcht the first part of my intended Task, which was to prove that the Author’s Hypothesis concerning the Monarchical Despotick Power of Adam over his Wife, Children, or Descendants, is altogether vain, and without just grounds either from Scripture or Reason; and consequently that neither any Fathers of Families, nor the Princes as representing them, can from divine Grant deduce any such absolute Power or Right over their Children or Subjects: I shall not trouble my self with the answering of the rest of this Treatise, having gone a good way in the second Chapter, and answered his most material Objections about the Peoples conferring Soveraignty; so that the rest is of small consequence. I shall not need to examine whether the Jews chose the King, or God, since that Government being purely Theocratical, it concerns other Nations not at all; much less shall I vindicate the Form of the Roman Commonwealth, or dispute whether they were more happy under Kings or Emperours, or whether Democracies or Tyrannies are best; or affirm that the People can correct their King, or that there e’re have been any Tyrants in England since the Conquest, since they are all either foreign to this purpose, or else signifie nothing when his foundations are pulled up. As for what he says concerning a limited or mixt Monarchy, I shall reserve all that is needful to be observed upon that subject, until I come to consider the Author’s Treatise called, The Anarchy of a limited Monarchy; where all or the greatest part of what he hath here written, is there repeated. As for his third Chapter, since Divinity is not my Profession, and that the Texts of S. S. he there quotes, have been debated by so many Expositors both in English and Latine, I count needless to repeat out of others what sense they may bear, though I do not approve of the Author’s interpretation, who would have them applied alike to all Princes, whether good or bad, lawful or unlawful; since upon those Principles there can be no difference between a just Prince and a Tyrant, or between a lawful Monarch and an Usurper. Nor shall I meddle with what he says concerning the Kings Power and Prerogative, though I think there are divers things which he there says, that are false and of very ill consequence; yet since I confine my self purely to the Laws of Nature and Reason, I shall leave it to other more able Pens, and better skill’d in the Laws and Customs of this Kingdom, to give him such an answer as they deserve. Neither would I be thought to encourage Princes to stretch their Power to the utmost limits, nor yet to stir up Subjects to take Arms as soon as ever they think themselves injured, since the Populace is but too apt, where they are left to be their own Judges, to pronounce Sentence in ther own favour. Therefore, quitting all these as unnecessary Disputes, I shall now proceed to take a short view of the rest of those Errors and Mistakes which remain yet to be observed in his other Miscellany-Treatises first published.
5: Chapter III [untitled]
This short chapter is mostly devoted to criticizing Filmer’s use of Aristotle in Filmer’s “Observations on Aristotle’s Politics.” One noteworthy recurring contention — which also appears in Locke — is that it is not enough for rulers to care for their subjects because their subjects are useful to them. For this is merely the sort of care that an owner of beasts takes for his beasts.
… a Grasier or Butcher takes care of his Cattel that they thrive and do well (as they call it) yet every body knows that they take this care onely for their Carcasses, which yield them so much ready money at the Market. So that indeed a Tyrant onely considers his own good in the welfare of his Subjects, and looks upon them as no better than brute Beasts, in which he hath an absolute property to shear or kill, as he thinks it most conduces to his own profit; without considering to what end he is set over them:
James Tyrrell, *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). Chapter: CHAP. III.
Accessed from oll.libertyfund.org/title/2168/200960 on 2008-12-15
The text is in the public domain.
CHAP. III.
I Desire the Reader in the first place to take notice that I wholly pass by the first Treatise called, The Freeholders Grand Inquest, since I confess my self no Lawyer verst enough in the learning of Records, to answer him in his own way; I shall therefore leave him to those that have made it their business: And as for great part of it concerning the Antiquity and Power of the Commons in Parliament distinct from that of the Peers or Inheritable Nobility, I shall refer the Reader to Mr. Petyts learned Treatise of the Rights of the Commons of England, where all Objections against it are in my opinion fully answered.See likewiss a late Treatise, intituled Jani Anglorum facies nova, written by a young Gentleman of great Learning and Ingenuity. Therefore I shall begin with his Observations upon Aristotle’s Politicks; which I shall not dwell long upon, since I look upon that as one of the confusedest Pieces he hath written: Nor is it my business, as that great Author said once in the case of Plato, to defend Aristotle, but Truth. I shall likewise pass by the Preface, since it contains nothing considerable but his Hypothesis of Adam’s Monarchy; of which there needs no more to be said. And as for the places out of St. Paul and Peter, it not being my designe to write Divinity-Lectures, I shall refer the Reader to the learned Commentators; onely I shall take notice that his Assertion, That these Apostles wrote their Epistles when the name of the Authority and People of Rome was still in being, though the Emperours had usurped a Military Power: and yet though the Government was for a long time, in most things, in the Senate and People of Rome; yet for all this, neither of the two Apostlestake notice of any such Popular Government; and our Saviour himself divides all between God and Cæsar, and allows nothing to the People. All which, though but a Negative Argument against Popular Government, and so not conclusive, yet the foundation of it is not true: For though in Rome there remained a shadow of the Power in the Senate, yet it was onely in such cases as the then Emperours committed to their judgment (as the Kings of France do now make use of the Parliament of Paris) onely to ease themselves of divers troublesome Causes, or to take off the odium from themselves, as in the condemnation of Sejanus and divers other Conspirators against them; and yet they reserved the last Appeal to themselves in Cases both Civil and Capital, as may be observed in St. Paul’s appeal to Cæsar: and it is certain that the Roman Emperours in those times put men to death as often as they had a mind to it, by their own power made what Edicts they pleased, and appointed Proconsuls and Governours of Provinces as often as they saw it convenient, and had all Money coined with their Image or Superscription; and received and disposed of all Tributes & publick Taxes. And yet this Author doubts whether Tiberius, Claudius, or Nero were absolute Monarchs, when they had all the Prerogatives that a Monarch could have.
I come now to the Author’s Observations on Aristotle’s Politicks. It will be easte to prove that he makes use of him in all places that make for his Hypothesis, but takes no notice of those that make against it (a usual course among Writers, especially in Politicks or Divinity:) Nor does he onely do this, but likewise oftentimes perverts Aristotle’s sence to make it subservient to his own; of which I shall produce these instances. In his first Quotation, p. 3. he renders these words, πασ[Editor: illegible character]δ[Editor: illegible character]ὁιϰεία βασιλεύέ[Editor: illegible character]αι ὑπο τȣ͂ [Editor: illegible character]εσϐυτάτȣ. for the eldest in every house is King: Whereas βασιλεύ[Editor: illegible character] does not here signifie to be an absolute Monarch, but to govern as a Master of a Family or chief Ruler; a power falls short of that of an absolute Monarch: And so Lambinus hath rendered it in his Version. So likewise he hath misplaced these words, [Editor: illegible character] νόμον λε[Editor: illegible character]μεν βα[Editor: illegible character] λεὺ[Editor: illegible character] [Editor: illegible character]ϰ ἵϚτν ε[Editor: illegible character]δ ϰᾴθαπερ εἵπομεν πολιτείας, and makes them to come in as a reason of what he says before concerning a perfect Monarchy; whereas this sentence precedes the former, and there are three or four sentences between them: and therefore it cannot serve for a Consequent, where it is really an Antecedent. Nor is this sentence truely rendered by the Author, For a King according to Law, makes no kind of Gouernment; whereas he should have said, No distinct species of Government: for so are these last words to be rendered; ȣ̓ϰ ἵϚτν ε[Editor: illegible character]δ ϰᾴθαπερ εἵπομεν πολιτείας. or else he would make Aristotle contradict himself, if after he had spoke so much in other **Vid. 3 Pol. c. 14. Speaking of the ancient Heroical Kingdoms. places of a King according to Law, he should make it no kind of Government at all. So likewise p. 4. he misrenders these words: τ[Editor: illegible character] [Editor: illegible character] βελ[Editor: illegible character]Ϛη ἡ β[Editor: illegible character]λ[Editor: illegible character] χειϱίϚη [Editor: illegible character] τιμοϰϱᾳτία, That of all Governments Monarchy is the best, and a Popular State the worst: Whereas any one but meanly skill’d in Greek, knows that βα[Editor: illegible character]λ[Editor: illegible character] does not signifie Monarchy, but Kingship; and τιμοϰϱᾳτίς is not a Popular Estate, but an Aristocratical Commonwealth, and in the same Chapter put in opposition to ὁημοϰϱᾳτία. I shall not trouble my self to inquire whether Aristotle distinguishes well between an Aristocracy and an Oligarchy, or between an Oligarchy and a Democracy; or whether he do well to exclude Artificers from any Vote in the Government: These I shall leave to be defended by those that are greater admirers of him than my self; onely I will see that (if I can) he have fair play, and not that sence put upon him that he never meant. And therefore I shall turn over to p. 12. where he quotes another place out of Aristotle’s fourth Book, cap. 13. That the first Commonwealth among the Grecians, after Kingdoms, was made of those that waged War: From whence he would infer, That the Grecians, after they left off to be governed by Kings, fell to be governed by an Army: So that any Nation or Kingdom that is not charged with the keeping of a King, must perpetually be at the charge of paying and keeping of an Army. Which, though it happened true during the corrupt Oligarchy of the Rump, which was but an armed Faction contrary to the sense of this Nation; yet is not a necessary Consequent of all Commonwealths: Neither is it the Author’s sence in this place, as may appear by what he says before, and what follows these words, That he meant no such thing, a standing Army in constant Pay being a thing unknown among the Greek Commonwealths, where every Freeman served in person as a Horseman or on foot, according to his ability, as any that reads those Histories may easily observe; and a Guard of Strangers, or a constant standing Army, was ever held the Body of Tyranny (as it still continues in all absolute Monarchies from France to China.) But to return to Aristotle, in the place before cited by the Author, where speaking just before of the Government of the Maleans and other Greek Commonwealths, he says, That their Government consisted not onely of those Footmen that bore Arms, but of those that had served in the Army: And then follows these words quoted by the Author, [Editor: illegible character]ὶ ἡ πϱ[Editor: illegible character]τη [Editor: illegible character] πελιτεία. So the words [Editor: illegible character] πολεμȣ́ντων, are not well rendered by those that waged War, since they should rather be rendered by those that went to the Wars; this Force not being to defend them from their own Citizens, but Neighbours with whom they were still at Wars: for it appears that not onely those had a share in the Government who were actually in Arms, but those also that had served in the Army; for Aristotle says immediately after, That their Strength consisted chiefly at first of Horsemen, and that as the Commonwealths increased in the strength and number of them that were of ability or substance to bear Arms, the Administration of the Commonwealth was communicated to more. From whence it appears, that (as also at first among the Romans) they onely had a Voice in their Councils or Assemblies, who were able to maintain themselves in the Wars at their own charge: As amongst us none have a Vote to chuse Parliament-men, but Freeholders? or as in old times, none but those who served in the Wars in person, had Votes in the Withena Gemote, or Great Council: And yet this was no standing Army no more than those in Greece. So likewise neither are these words fairly rendered in the same page, αῦτη γδ ἄ πλήθει, (and that in a Popular State) The Soveraign Power is in the Sword, and those that are possessed of the Arms; but are thus to be rendered, In this kind of Government (i. e. Popular) those govern and have greatest Power, who bear Arms and fight for the rest (which is but reasonable.) I shall not trouble my self with the rest of those Contradictions and Faults he find with Aristotle, since I look upon this Treatise of Politicks as the most confused he hath writ; onely it seems this Author did but skim over Aristotle, when he so confidently asserts, That the natural Right of the People to found or elect their own kind of Government, is not once disputed by him. which whether he asserts or no, let these words judge, lib. 5. Pol. cap. 10. Ἐν δὲ ταῖς [Editor: illegible character]ώ βασιλείας πϑέναι δὶ τῆς φϑο[Editor: illegible character]ὰς αἰτίαν ωρὸς ταἴς εἰρημῴαῖς ϰαὶ τὸ γνέϑαι πολλ[Editor: illegible character] θύ[Editor: illegible character]ταφϱ[Editor: illegible character]νήτοις, ϰαὶ τὸ δύναμιν μὴ ϰεϰτημῴοις τυϱαννιϰἱὼ ἀλλὰ βασιλ[Editor: illegible character]ϰ[Editor: illegible character] πμ[Editor: illegible character]ὼ, ὀϐ[Editor: illegible character]ιζεὶν ῥα δία γδ εγίνετο τί ϰαταλίσις, μὴ βȣλομῴνων γδ ὀ[Editor: illegible character]ϑις ȣ̓[Editor: illegible character] ὁζὶ βασιλεὺς, [Editor: illegible character]λλ’ [Editor: illegible character] τυϱαννὸς η[Editor: illegible character] μὴ βȣλ[Editor: illegible character]μῴ[Editor: illegible character]ν. Which may be thus Englished: But of Kingdoms by discent, this maybe supposed the cause of their dissolution, besides those already mentioned, viz. when it happens to many of them, who not being endued with the power of a Tyrant, but onely with a Kingly Authority, become contemned whilst they will unjustly abuse their Subjects; for then there is an easie dissolution of the Government; for he is not a true King over those that like not his Government, but a Tyrant. P. 20, & 21. He finds fault with Aristotle for making the main distinction between right Forms of Government, and those that are imperfect or corrupt, to consist solely in this, That where the profit of the governed is respected, there is a right Government; but where the profit of the Governours is onely regarded, there is a corruption or transgression of Government. By this it is supposed by Aristotle that there may be a Government (which he calls a Tyranny) onely for the benefit of the Governour. That this Supposition is false, may be proved from Aristotle himself, to instance in the point of Tyranny. And therefore the Author endeavours to make him contradict himself thus: Tyranny (saith Aristotle, lib. 3. cap. 7.) is a Despotical or Masterly Monarchy. Now he confesseth, l. 3. c. 6. That in truth the Masterly Government is profitable both to the Servant by nature, and the Master by nature: And he yields a solid reason for it, viz. It is not possible, if the Servant be destroyed, the Mastership can be saved. Whence it may be inferred, That if the Masterly Government of Tyrants cannot be safe without the preservation of them whom they govern, it will follow, That a Tyrant cannot govern for his own profit onely. And thus his main definition of Tyranny fails, as being grounded on an impossible Supposition. By his own confession, no Example can be shewn of any such Government that ever was in the world, as Aristotle describes Tyranny to be: for under the worst of Kings, though many particular men have unjustly suffered, yet the Multitude, or People in general, have found benefit and profit by the Government.
If Aristotle were alive, I doubt he would say this Author plaid the Sophister with him, and did not onely misquote his words, but pervert his meaning. For first, Aristotle does not say in that place he quotes, (or in any other that I know of) That Tyranny is a Despotical or Masterly Monarchy: And therefore all he builds upon this Concession is false. It is true indeed, Aristotle says, That the Government of the Master is profitable both to the Servant by nature, and the Master by nature, (that is, upon his supposition that they are either so by nature.) But the Author omits what immediately follows, because it would vindicate Aristotle’s true meaning: for his next words are, Nevertheless it (i. e. the Masterly power) regards chiefly the profit of the Master, and of the Servant but by accident; but Oecumenical Government, or that of a Master over the Wife, Children, and Servants, is for their sakes whom he governs, and for the common good of them all. Hence it appears plainly, that Aristotle, when he says that a Tyranny is for the benefit of the Governour alone, he does not mean that the Subjects can have no benefit at all by it, since it is the Tyrants interest they should live and get Children, or else he would quickly want Subjects. Thus the Children of Israel, under the Tyranny of Pharaoh, had Meat, Drink, and Cloaths, and were not so low kept but they got Children apace; and yet we find God thought them opprest, and heard their cry. But Aristotle clears the point, when he distinguishes an absolute Masterly power over a Slave, from that of a Father of a Family; the Master in the former considering onely his own profit, and the preservation of the Slave but by accident; and so an ill-natured brutish Master takes care of the life of his Slave that works in the Mines or Sugar-works in the Indies, not out of any love to the person of the Slave, but because he cannot subsist without him. So a Grasier or Butcher takes care of his Cattel that they thrive and do well (as they call it) yet every body knows that they take this care onely for their Carcasses, which yield them so much ready money at the Market. So that indeed a Tyrant onely considers his own good in the welfare of his Subjects, and looks upon them as no better than brute Beasts, in which he hath an absolute property to shear or kill, as he thinks it most conduces to his own profit; without considering to what end he is set over them: As the Grand Seignior makes use of the bodies of his poor Christian-slaves (for Subjects I cannot call them) to fill up Ditches, and to blunt the edge of his Enemies Swords. But that all Kings are bound to preserve the Lands, Goods, and Lives of their Subjects, the Author himself confesses, (Patriarcha, p. 94.) Though not by any municipal Law, so much as the natural Law of a Father, which binds them to ratifie the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects. So then I hope there is some difference between the Government of a Father over his Children, and that of an absolute Lord over his Slaves, notwithstanding our Author’s Quotation out of Aristotle, whereby he would make them all one, viz. That a Kingdom will be a Fatherly Government: Which is true, if you take it in the best sence, for that affection that Kings like Fathers should have for their Subjects: And so it is plain Aristotle intended it, by the words immediately foregoing, thus;Anarchy of a limited Monarchy, p. 294.For the Society of a Father with his Sons, has an appearance of a Kingdom; not that it is so indeed. But to make an end with Aristotle, I will give you one place more which the Author does not quote fairly; where Aristotle reckoning up the several sorts of Monarchies, The last (says he) isthe Heroick, which flourished in Heroical times; to whom the People did ** The Greek word is ἐϰούσιαι, of their own accord.willingly obey, and they were paternal and † legal. And then reckoning up the occasions & reasons of their Obedience, he concludes thus: ἐγίγνοντε βασιλεῖς ἑϰόντων, And these were chosen Kings by the consent of those that were willing (Lambinus renders it, à voluntariis) and left the Kingdom so obtained to their Children.† [Editor: illegible character] νομὸν. Which confutes the Author’s fancy, that a King according to Law makes no kind of Government. Which whole sentence is omitted by the Author, because it makes against his Hypothesis, and proves that the most ancient Kingdoms began by Election of the People. So true is that excellent Simile of the elder Dr. Don’s, That Sentences of good Authors, whilst they remain in their proper place, like the hairs of an Horses tail, concenter in one root of strength and ornament; but pulled out one by one, serve only to make Snares. And indeed he hath made use of Aristotle as Lawyers do of their Adversaries Evidence; where it makes for them they allow it, and make use of it; but where it is against them, it is false, or signifies nothing.
I shall now cursorily look over the rest of this Discourse; where (p. 23.) though it be true what Aristotle says, That the People must act as a Monarch, and become as one Person, before it can govern: So after they are so united into one Senate or Council, it is no good Argument to say, That the whole Multitude does not govern where the major part onely rules, because many of the Multitude that are so assembled, are so far from having any part in the Government, that they themselves are governed against, and often contrary to their wills; those people (to contract it) being the major part in one Vote, that are perhaps of another opinion in another: and so every change of business begets a new major part. For though it is true, every individual person does not actually agree to every Vote, yet implicitly he does, since at the first institution of the Government, the first Compact was, That the agreement of the major part should conclude the whole Assembly; and whoever either then would not, or now refuses to be so concluded, is still in the state of Nature, in respect of all the rest, and is not to be lookt upon as a Member of that Commonwealth, but as an Enemy, and a Covenant-breaker.
I shall not quarrel with the Author, if he hold that Monarchy does most conduce to the main ends of Government, Religion towards God, and Peace towards men; since I agree with him, that absolute Monarchy (if a man could be sure the Monarch would still continue prudent and just) were the best sort of Government for mankind. Onely I cannot but smile to finde the Author (p. 27.) so much admire the high respect the great Turk pays the Muftí or chief Bishop, as he calls him, (where by the by, I never heard the Turkish Church-Government was Episcopal before) yet every printed Relation can tell us, that this wonderful Reverence is but a meer piece of Pageantry, the Idol being of his own making, and whom he again unmakes at his pleasure; a sort of Ordination I suppose the Author would not allow to those of an indelible Character. It is true indeed what the Author affirms, (p. 29.) That Rome, being in any desperate condition, was still forced to flie to Monarchy, chusing a Dictator with absolute Power: Yet this was onely as a General in time of War, or some great civil Commotion being very near it; where it must be confest that the absolute power of one is best at such times, which needed a speedy Remedy: And argues no more the Romans good opinion of Monarchy, than it does any mans approbation of Martial Law; which though perhaps the best that can be used in War, it will not therefore follow that it were to be chosen in times of Peace, no more than because Brandy may do a man good when he is sick in his stomach, therefore he ought to drink it constantly. So that as one benefit of the Dictatorship was the help it gave them upon an Extremity, so the next happiness they wisht for after that was over was, that the Dictator would lay down his Office again. And the People of Rome were never more tyrannized over and opprest, than when these Dictators held their Power by force, contrary to their Institution, and longer than there was need of them; as may be seen in the Examples of Sylla and Cæsar. But the Consuls, though they had in many things (especially in calling the Senate, and in commanding the Army) a Kingly power, yet it was not absolute, but was liable to be questioned by the Senate and People; as any man that reads the Roman History may observe. [See the Oration of Valerius in Dionysius Halicarnassæus, lib. 7. upon the difference between the Senate and People.] I shall not now stay to dispute whether the People of Rome did well or ill in expelling Tarquin; but besides his personal faults, he was never their lawful King, having ascended the Throne by the murder of his Father-in-Law Servius Tullius, and kept it by the power of a standing Army, without the due Election of the Senate and People; which was contrary to the Institution of that Kingdom, which was Elective.
The Author (p. 32.) makes a great difficulty to grant the Roman Commonwealth to be Popular: It is true, it was not so absolutely, but was mixt with an Aristocracy in the Government of the Senate, and with Regal power in the Authority of the Consuls; yet it is plain, the supreme Power remained in the Body of the People: And though by the unequal division of the Centuries, it is true, the greater part of the common People were seldom admitted to vote, being concluded by the major part of the first 97 Centuries, who consisted of the better and richer men; yet this inequality begot the Tributa Comitia, which (with the Author’s good leave) was more absolute than the former Comitia Centuriata: For Dion. Halicarnas. lib. 9. relating the original of these Tributa Comitia, and how they differed from the other, says, That the latter were transacted in one day without any Auspicia, and could make a Law at once without any precedent Senatus Consultum; which the Curiata Comitia could not. And though it is true that the power of making War and Peace, creating of Magistrates, remained in the Comitia Curiata, yet the judging of great and capital Crimes, and of altering and making Laws, remained in the Tributa Comitia; as may be observed in the panishment of Coriolanus, and other punishments by them inflicted; and all Appeals were to this Assembly. Yet granting that the force of the Government lay in the Curiata Comitia, or better sort of Citizens, yet it was still vertually in the common People, who resumed it when they would. And it was to this whole Body of the People that Valerius Publicola used, when Consul, to make the Lictors abase his Fasces, and in that sufficiently acknowledged where the Soveraign Power Presided.
I shall not trouble my self farther to defend the Model of the Roman Commonwealth, which I look upon is one of the most unequal and irregular that ever were; and if it had not been for the excellent Temper, admirable Discipline, and exact Education of that People, it was impossible it could ever have lasted so long: In which when they began to grow remiss through Riches and Luxury, their Commonwealth soon fell to pieces, being indeed never well compacted at first. Much less shall I take upon me to defend a Popular Government, where the mixt Multitude, without any Representatives, consult of Affairs, or make Laws. Any man that will but read Thucydides and Livy, will see enough of it.
As for the Author’s Arguments against the People being able to agree to institute any Government at all, they are most of them but meer Wrangling, and have been answered in the foregoing Observations, and so need not be repeated. I shall likewise pass by the Author’s Directions for Obedience to Government in doubtful times, since I have already taken notice of all that is considerable in it.
6: Chapter IV [untitled]
Aside from holding that Adam was the original universal monarch of the earth and that all truly legitimate authority was held by Adam’s heirs, Filmer held that Adam was the original universal owner of the earth and all its fruits and creatures and that after Adam’s death only the particular individuals who count as Adam’s heirs are true owners of portions of the earth. In this extremely long chapter — which Tyrrell may have meant to break into several chapters — Tyrrell disputes this second doctrine.
He argues that the earth is originally held in common by all men but that this “negative communion” allows individuals to make parts of the earth their own — by taking possession and using those portions of the earth. However, although an individual’s labour plays some role in the establishment of private property rights, it does not play the salient role that Locke assigns to it. Indeed, in some passages, Tyrrell seems to hold that some sort of agreement among the individuals who occupy some portion of the earth is needed in order for individually used or appropriated segments of that portion of the earth to count as the property of the user or appropriator which others are obligated to respect.
In addition, Tyrrell seems to hold that in the state of nature no man’s property in land can extend beyond what he himself can cultivate. According to “the right of occupancy… 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.”
Another important contention in this chapter is that Filmer’s (and Hobbes’) claim that a sovereign cannot be limited by law is false — although Tyrrell struggles to reconcile his view that the sovereign can be limited by law with his view that law is the expression of the will of the sovereign. Tyrrell cites many actual cases of legal limits on a monarch’s authority, e.g., the case of the Justice of Aragon who had the authority to judge the King’s actions to be contrary to law.
… 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…
…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…
… 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.
… 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…
James Tyrrell, *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). Chapter: CHAP. IV.
Accessed from oll.libertyfund.org/title/2168/200961 on 2008-12-15
The text is in the public domain.
CHAP. IV.
I Shall therefore in the next place look over his miscellany observations. (1) Upon divers modern Authors. As for Mr. Hob’s Leviathan. I shall leave them to decide the controversie as they please, and refer it to the readers judgment who hath the better on’t: For in many things I think neither of them are in the right: only it is a hundred pitties Mr. Hobs did not consult the Author, and take in his Patriarcal Hypothesis, and then all his rights of exercising Soveraign Tyranny would have gone down well enough. But for my part I neither like the foundation nor the building which Mr. Hobs hath set up, and therefore shall here leave the Author to build and pull down as he pleases without my intermedling.
And less shall I take upon me to vindicate Milton, since that were at once to defend downright Murder and Rebellion. So that I shall turn over to his observations upon Grotius, an Author of greater learning, and better reputation, than either of them. Where I shall not trouble my self to defend the manifold distinctions,P. 37. and contradictions of the old Civil Lawyers about the Law of Nature, and the Law of Nations; or whether the natural, and Moral law be all one, it is sufficient if Grotius’s didifinition of the law of Nature be true: Nor does it signifie any thing whether the word Law of nature be found in Scripture; Yet I think Thomas Aquinas may well enough be defended, that there is such a thing too proved from 11. Romans v. 14, 15. For though he doth not say expresly that nature is a Law unto them, but they are a law unto themselves, yet certainly Saint Pauls meaning is to the same: For if the Gentiles by nature did the things contained in the law, and so were a law unto themselves, I know not what else he can mean by their doing by nature the things contained in the law, but their living according to the Laws of nature or right reason, which (all rational men are sensible of as soon as they come of an age able to exert this faculty and so) becomes by nature a Law unto themselves; neither can this be custom, since Saint Paul says they do so by nature &c. the things contained in the Law.
Neither do I see any Reason why Grotius is to be blamed for not taking his Hypothesis concerning the Original of Mankind, of Dominion, and Property out of Genesis, since writing of the rights of Peace and War according to the laws of nature, and the general consent of civilised Nations, and not according to any revealed Will, or Law of God he was not bound (nay it was contrary to his purpose) to make use of Scripture farther than to confirm what could be made out from natural reason alone, for to have done otherwise had been to have written a treatise of cases of Conscience in Divinity, and not of right and wrong by the laws of nature. So that though he sometimes make use of Texts of Scripture, yet it is either to strengthen those, or else to answer some objections that may be drawn from thence against his conclusions. And therefore he was not obliged to take notice, whether God gave a begining to Mankind from one man, or more at once, since it might if he had pleased have been either way. Nor yet did he dream of Adams Monarchy over the whole Creation before he had any Subjects to command, nor of his being sole Lord Proprietor and first occupant of all the earth, and of all the Creatures in it, when neither he, nor his Children ever knew, nor made any use of the 1000. parts; of them, these were Notions too fine spun for a man of his solid judgment ever to light on, so therefore we must be beholding to our Author and some English Divines for this admirable discovery. Yet as I doubt not but if that great man were alive, he could well enough defend himself by that great reason, and learning he was Master of, against what ever this Author or some other lesser Scriblers could reasonably object against a work of that nature; yet I doubt not but most of those things the Author observes as errors, may be well enough defended by one of far meaner parts, and less learning than Grotius himself; so that I am not convinced that he either forgets or contradicts himself (as our Author will needs have him) when he refers alieni abstinentia or abstaining from that which belongs to another,P. 59. to consist with a sociable community of all things, because says the Author, where there is Community, there can be neither meum nor tuum, nor yet alienum; and if there be no alienum, there can be no alieni abstinentia, and so likewise by the Law of nature, men ought to stand to bargains, but if all things were common by nature how could there be any bargains.
In answer to which, it will appear that a Propriety of occupancy or the personal possession of things and applying it to the use of one or more men while they have need of it, may very well consist with community, and is absolutely necessary to the preservation of Mankind: As for Example, a Theater is in Common to all that have a right of coming thither, but no man can say that one place in it is more his than anothers, untill he is seated in it, and then that place is so much his, that whilest the Play lasts no man can without injury put him out of it; so likewise supposing 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.
- This a more innocent, and happy Chace,
- Then when of Old, but in the self same Place;
- Fair Liberty pursued, and meant a Prey,
- To lawless Power, here turned, and stood at Bay:
- When in that remedy all hope was plac’t,
- Which was, or should have been at least the last.
- Here was that Charter Seal’d wherein the Crown,
- All marks of Arbitrary Power lays down:
- Tyrant, and Slave, those Names of hate and fear,
- The happier Style of King, and Subject bear:
- Happy, when both to the same Center move,
- When Kings give Liberty, and Subjects love.
- Therefore not long in force this Charter stood
- Wanting that Seal, it must be seal’d in Blood.
- The Subjects Armed, the more their Princes gave,
- Th’ advantage only took the more to crave:
- Till Kings by giving, give themselves away,
- And even that Power, that should deny betray.
- Who gives constrain’d, him, his own fear reviles;
- Not thankt, but scorn’d; nor are they gifts, but spoiles.
- Thus Kings by grasping more then they could hold;
- First made their subjects by oppression bold:
- And Popular sway by forcing Kings to give
- More then was sit for Subjects to receive,
- Ran to the same extreams, and one excess,
- Made both by striving to be greater, less.
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.
FINIS.
ERRATA.
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.
ADDENDA.
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.