CAROLUS Secundus Dei Gratia, Angliae, Scotiae, Franciae, et Hiberniae Rex, Fidei Defen­sor etc.

Patriarcha: OR THE Natural Power OF KINGS.

By the Learned Sir ROBERT FILMER, Baronet.

Lucan. Lib. 3.
Libertas—Populi, quem regna coercent
Libertate perit—
Claudian.
Fallitur, egregio quisquis sub Principe oredit
Servitium; nusquam Libertas gratior extat
Quam sub Rege pio—.

LONDON, Printed, and are to be sold by Walter Davis Book-binder, in Amen-Corner, near Pater-noster-row, 1680.

The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN, to Sir Edward Filmer, Son of the Worthy Author, concerning this Book and his other Political Dis­courses.

SIR,

HOW great a Loss I had in the death of my most dear and honoured Friend, your de­ceased Father, no man is [Page] able to conjecture, but he that hath suffered in the like. So affable was his Conversa­tion, his Discourse so ratio­nal, his Judgment so exact in most parts of Learning, and his Affections to the Church so Exemplary in him, that I never enjoyed a greater Felicity in the com­pany of any Man living, than I did in his: In which respects I may affirm both with Safety and Modesty, that we did not only take sweet Counsel together, but walked in the House of God as Friends: I must needs say, [Page] I was prepared for that great Blow, by the loss of my Preferment in the Church of Westminster, which gave me the opportunity of so dear and beloved a Neighbour­hood; so that I lost him partly before he died, which made the Misery the more supportable, when I was de­prived of him for altogether. But I was never more sensi­ble of the infelicity, than I am at this present, in refe­rence to that satisfaction, which I am sure he could have given the Gentleman whom I am to deal with: [Page] His eminent Abilities in these Political Disputes, exempli­fied in his Judicious Obser­vations upon Aristotles Poli­tiques; as also in some passa­ges on Grotius, Hunton, Hobbs, and other of our late Dis­coursers about Forms of Go­vernment, declare abundant­ly how fit a Man he might have been to have dealt in this cause, which I would not willingly should be be­trayed by unskilful handling: And had he pleased to have suffered his Excellent Dis­course called Patriarcha to appear in Publick, it would [Page] have given such satisfaction to all our great Masters in the Schools of Politie, that all other Tractates in that kind, had been found unne­cessary.

Vide Certamen Epistolare. 386.

THE CONTENTS.

CHAP. I. That the first Kings were Fa­thers of Families.

(1) THE Tenent of the Na­tural Liberty of the Peo­ple, New, Plausible, and Dangerous. (2) The Question sta­ted out of Bellarmine, and some Contradictions of his noted. (3) Bel­larmine's Argument answered out of Bellarmine himself. (4) The Royal Authority of the Patriarchs before the Flood. (5) The Disper­sion [Page] of Nations over the World after the Confusion of Babel, was by entire Families, over which the Fathers were Kings. (6) And from them all Kings descended. (7) All Kings are either Fathers of their People: (8) Or Heirs of such Fathers, or Vsurpers of the Right of such Fathers. (9) Of the Escheating of Kingdoms. (10) Of Regal and Paternal Power and of their Agreement.

CHAP. II. It is unnatural for the People to Govern, or Chose Gover­nours.

(1) ARistotle examined about the Fredom of the People, and justisied. (2) Suarez disputes a­gainst the Regality of Adam. (3) Families diversly defined by Ari­stotle, Bodin, and others. (4) Suarez contradicting Bellarmine. (5) Of Election of Kings, (6) By the major part of the People, (7) By Proxie, and by Silent Accep­tation. (8) No example in Scrip­ture of the Peoples Choosing their King. Mr. Hookers judgement [Page] therein. (9) God governed al­wayes by Monarchy. (10) Bellar­mine and Aristotles judgement of Monarchy. (11) Imperfections of the Roman Democratie. (12) Rome began her Empire under Kings, and perfected it under Em­perours. In danger the Peo­ple of Rome always fled to Monar­chy. (13) VVhether Democraties were invented to bridle Tyrants, or whether they crept in by stealth. (14) Democraties vilified by their own Historians. (15) Popular Government more Bloody than Ty­ranny. (16) Of a mixed Govern­ment of the King and People. (17) The People may not judge nor cor­rect their King. (18) No Tyrants in England since the Conquest.

CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings.

(1)REgal Authority not subject to Positive Laws. Kings were before Laws. The Kings of Judah and Israel not tyed to Laws. (2) Of Samuel's Description of a King. (3) The Power ascribed to Kings in the New Testament. (4) VVhe­ther Laws were invented to bridle Tyrants. (5) The Benefit of Laws. (6) Kings keep the Laws, though not bound by the Laws. (7) Of the Oaths of Kings. (8) Of the Benefit of the Kings Prerogative [Page] over Laws. (9) The King the Author, the Interpreter, and Cor­rector of the Common Laws. (10) The King Iudge in all Causes both before the Conquest and since. (11) The King and his Councel ancient­ly determined Causes in the Star-Chamber. (12) Of Parliaments. (13) VVhen the People were first called to Parliaments. (14) The Liberty of Parliaments not from Nature, but from the Grace of Prin­ces. (15) The King alone makes Laws in Parliament. (16) He Governs Both Houses by himselfe, (17) Or by His Councel, (18) Or by His Iudges.

ERRATA.

Page 4. line 3. for Calume read Calvin.

CHAP. I. That the first Kings were Fa­thers of Families.

(1)THE Tenent of the Natural Li­berty of Mankind, New, Plau­sible, and Dangerous. (2) The Que­stion stated out of Bellarmine: Some Contradictions of his noted. (3) Bel­larmine's Argument answered out of Bel­larmine himself. (4) The Royal Au­thority of the Patriarchs before the Flood. (5) The dispersion of Nations over the World after the Confusion of Babel, was by entire Families, over which the Fa­thers were Kings. (6) and from them all Kings descended. (7) All Kings are either Fathers of their People, (8) Or Heirs of such Fathers, or Vsurpers of the Right of such Fathers. (9) Of the Escheating of Kingdoms. (10) Of Re­gal [Page 2] and Paternal Power, and their Agreement.

SInce the time that School-Divinity began to flourish, there hath been a common Opinion maintained, as well by Divines, as by divers other Learned Men, which affirms,

Mankind is naturally endowed and born with Freedom from all Subjection, and at liberty to choose 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.

This Tenent was first hatched in the Schools, and hath been fostered by all succeeding Papists for good Divinity. The Divines also of the Reformed Churches have entertained it, and the Common People every where tenderly embrace it, as being most plausible to Flesh and Blood, for that it prodigally destributes a Portion of Liberty to the meanest of the Multitude, who magnifie Liberty, as if the height of Humane Fe­licity were only to be found in it, never [Page 3] remembring That the desire of Liber­ty was the first Cause of the Fall of Adam.

But howsoever this Vulgar Opinion hath of late obtained a great Reputati­on, yet it is not to be found in the An­cient Fathers and Doctors of the Pri­mitive Church: 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. It is hard to say whether it be more erroneous in Divi­nity, or dangerous in Policy.

Yet upon the ground of this Doctrine both Iesuites, and some other zealous favourers of the Geneva Discipline, have built a perillous Conclusion, which is, That the People or Multitude have Power to punish, or deprive the Prince, if he transgress the Laws of the Kingdom; wit­ness Parsons and Buchanan: the first un­der the name of Dolman, in the Third Chapter of his First Book labours to prove, that Kings have been lawfully chastised by their Commonwealths: The latter in his Book De jure Regni apud [Page 4] Scotos, maintains A Liberty of the Peo­ple to depose their Prince. Cardinal Bellarmine and Calume, both look asquint this way.

This desperate Assertion whereby Kings are made subject to the Censures and Deprivations of their Subjects, fol­lows (as the Authors of it conceive) as a necessary Consequence of that for­mer Position of the supposed Natural Equality and Freedom of Mankind, and Liberty to choose what form of Government it please.

And though Sir Iohn Heyward, Adam Blackwood, Iohn Barclay, and some others have Learnedly Confuted both Bucha­nan and Parsons, and bravely vindica­ted the Right of Kings in most Points, yet all of them, when they come to the Argument drawn from the Natural Li­berty and Equality of Mankind, do with one consent admit it for a Truth un­questionable, not so much as once de­nying or opposing it; whereas if they did but confute this first erroneous Principle, the whole Fabrick of this vast Engine of Popular Sedition would drop down of it self.

[Page 5]The Rebellious Consequence which follows this prime Article of the Natural Freedom of Mankind may be my Suffi­cient Warrant for a modest Examinati­on of the original Truth of it; much hath been said, and by many, for the Affirmative; Equity requires that an Ear be reserved a little for the Negative.

In this DISCOURSE I shall give my self these Cautions:

First, I have nothing to do to medle with Mysteries of State, such Arcana Imperii, or Cabinet-Councels, the Vul­gar may not pry into. An implicite Faith is given to the meanest Artificer in his own Craft, how much more is it then due to a Prince in the profound Secrets of Government? The Causes and Ends of the greatest politique Actions and Motions of State dazle the Eyes, and exceed the Capacities of all men, save only those that are hourly versed in the managing Publique Affairs: yet since the Rule for each men to know in what to obey his Prince, cannot be learnt without a relative Knowledge of those Points wherein a Sovereign may [Page 6] Command, it is necessary when the Commands and Pleasures of Superiours come abroad and call for an Obedience, that every man himself know how to regulate his Actions or his Sufferings; for according to the Quality of the Thing commanded, an Active or Pas­sive Obedience is to be yielded; and this is not to limit the Princes Power, but the extent of the Subjects Obedi­ence, by giving to Caesar the things that are Caesar's, &c.

Secondly, I am not to question, or quarrel at the Rights or Liberties of this or any other Nation; my task is chief­ly to enquire from whom these first came, not to dispute what, or how ma­ny these are; but whether they were derived from the Laws of Natural Liber­ty, or from the Grace and Bounty of Prin­ces. My desire and Hope is, that the people of England may and do enjoy as ample Privileges as any Nation un­der Heaven; the greatest Liberty in the World (if it be duely considered) is for a people to live under a Monarch. It is the Magna Charta of this Kingdom, all other shews or pretexts of Liberty, are [Page 7] but several degrees of Slavery, and a Liberty only to destroy Liberty.

If such as Maintain the Natural Li­berty of Mankind, take Offence at the Liberty I take to Examine it, they must take heed that they do not deny by Retail, that Liberty which they affirm by Whole-sale: For, if the Thesis be true, the Hypothesis will follow, that all men may Examine their own Charters, Deeds, or Evidences by which they claim and hold the Inheritance or Free­hold of their Liberties.

Thirdly, I must not detract from the Worth of all those Learned Men, who are of a contrary Opinion in the Point of Natural Liberty: the profoundest Scholar that ever was known hath not been able to search out every Truth that is discoverable; neither Aristotle in Philosophy, nor Hooker in Divinity. They are but Men, yet I reverence their Judgements in most Points, and confess my self beholding to their Errors too in this; something that I found amiss in their Opinions, guided me in the dis­covery of that Truth which (I per­swade [Page 8] my self) they missed. A Dwarf sometimes may see that which a Giant looks over; for whilest one Truth is curiously searched after, another must necessarily be neglected. Late Writers have taken up too much upon Trust from the subtile School-men, who to be sure to thrust down the King below the Pope, thought it the safest course to advance the People above the King, that so the Papal Power might take place of the Regal. Thus many an Ig­norant Subject hath been fooled into this Faith, that a man may become a Martyr for his Countrey, by being a Tray­tor to his Prince; whereas the New­coyned distinction of Subjects into Roy­allists and Patriots, is most unnatural, since the relation between King and People is so great, that their well-be­ing is so Reciprocal.

(2) To make evident the Grounds of this Question, about the Natural Liberty of Mankind, I will lay down some passages of Cardinal Bellarmine, that may best unfold the State of this Controversie. Secular or Civil Power (saith he) is instituted by Men; It is in [Page 9] the People, unless they bestow it on a Prince. This Power is immediately in the whole Multitude, as in the Subject of it; for this Power is in the Divine Law, but the Divine Law hath given this Power to no particular Man— If the Positive Law be taken away, there is left no Reason, why amongst a Multitude (who are Equal) one rather than another should bear Rule over the rest. — Power is given by the Mul­titude to one man, or to more, by the same Law of Nature; for the Commonwealth cannot exercise this Power, therefore it is bound to bestow it upon some One Man, or some Few.— It depends upon the Consent of the Multitude to ordain over themselves a King, or Consul, or other Magistrates; and if there be a lawful Cause, the Multi­tude may change the Kingdom into an Ari­stocracy or Democracy. Thus far Bel­larmine; in which passages are compri­sed the strength of all that ever I have read, or heard produced for the Natu­ral Liberty of the Subject.

Before I examine or refute these Do­ctrines, I must a little make some Ob­servations upon his Words.

[Page 10] First, He saith, that by the Law of God, Power is immediately in the Peo­ple; hereby he makes God to be the immediate Author of a Democratical Estate; for a Democracy is nothing else but the Power of the Multitude. If this be true, not only Aristocracies, but all Monarchies are altogether unlawful, as being ordained (as he thinks) by Men, whenas God himself hath chosen a De­mocracy.

Secondly, He holds, that although a Democracy be the Ordinance of God, yet the people have no power to use the Power which God hath given them, but only power to give away their Power; whereby it followeth, that there can be no Democratical Government, be­cause he saith, the people must give their Power to One Man, or to some Few; which maketh either a Regal or Aristocratical Estate; which the Multi­tude is tyed to do, even by the same Law of Nature which Originally gave them the Power: And why then doth he say, the Multitude may change the Kingdom into a Democracy?

[Page 11] Thirdly, He concludes, that if there be a lawful Cause, the Multitude may change the Kingdom. Here I would fain know who shall judge of this lawful Cause? If the Multitude (for I see no Body else can) then this is a pestilent and dange­rous Conclusion.

(3) I come now to examine that Ar­gument which is used by Bellarmine, and is the One and only Argument I can find produced by my Author for the proof of the Natural Liberty of the People. It is thus framed: That God hath given or ordained Power, is evident by Scripture; But God hath given it to no particular Person, because by Nature all Men are Equal; therefore he hath given Power to the People, or Multitude.

To Answer this Reason, drawn from the Equality of Mankind by Nature, I will first use the help of Bellarmine him­self, whose very words are these: If many men had been together created out of the Earth, they all ought to have been Prin­ces over their Posterity. In these words we have an Evident Confession, that Creation made man Prince of his Poste­rity. [Page 12] And indeed not only Adam, but the succeeding Patriarchs had, by Right of Father-hood, Royal Authority over their Children. Nor dares Bellarmine deny this also. That the Patriarchs (saith he) were endowed with Kingly Power, their Deeds do 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 subordination to the First Parent, who is Lord-Paramout over his Childrens Children to all Generations, as being the Grand-Father of his People.

(4) I see not then how the Children of Adam, or of any man else can be free from subjection to their Parents: And this subjection of Children being the Fountain of all Regal Authority, by the Ordination of God himself; It follows, that Civil Power not only 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 only Power Universal and Absolute to God; but Power Respective, in re­gard of the Special Form of Government, to the Choice of the people.

[Page 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 Dominion of Life and Death, we find that Iudah 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 Iacob 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 con­cluding Peace, are the chiefest Marks of Sovereignty that are found in any Mo­narch.

(5) Not only 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 [Page 14] them by their Father; for of them was the whole World over-spread, accord­ing to the Benediction given to him and his Sons, Be fruitful and multiply, and replenish the Earth. Most of the Civilest Nations of the Earth labour to fetch their Original from some One of the Sons or Nephews of Noah, which were scattered abroad after the Confusion of Babel: In this Dispersion we must cer­tainly find the Establishment of Regal Power throughout the Kingdoms of the World.

It is a common Opinion, that at the Confusion of Tongues there were 72 distinct Nations erected, all which were not Confused Multitudes, without Heads or Governours, and at Liberty to choose what Governours or Government they pleased; 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 the Fatherly Authority, by di­stributing the diversity of Languages ac­cording to the diversity of Families; for so plainly it appears by the Text: First, after the Enumeration of the Sons [Page 15] of Iaphet, the Conclusion is, By these were the Isles of the Gentiles divided in their Lands, every one after his Tongue, after their Families, in their Nations; so it is said: These are the Sons of Ham after their Families, after their Tongues, in their Countreys, and in their Nations. The like we read, These are the Sons of Shem after their Families, after their Tongues, in their Lands, after their Na­tions. These are the Families of the Sons of Noah after their Generations in their Nations; and by these were these Nations divided in the Earth, after the Flood.

In this Division of the World, some are of Opinion that Noah used Lots for the distribution of it; others affirm he sayled about the Mediterranean Sea in Ten years, and as he went about, ap­pointed to each Son his part, and so made the Division of the then known World into Asia, Africa, and Europe, (according to the Number of his Sons) the Limits of which Three Parts are all found in that Midland Sea.

(6) But howsoever the manner of this Division be uncertain, yet it is most [Page 16] certain the Division it self was by Fa­milies from Noah and his Children, over which the Parents were Heads and Princes.

Amongst these was Nimrod, who no doubt (as Sir Walter Raleigh affirms) was, by good Right, Lord or King over his Family; yet against Right did he enlarge his Empire, by seizing violently on the Rights of other Lords of Fami­lies: And in this sense he may be said to be the Author and first Founder of Monarchy. And all those that do attri­bute unto him the Original Regal Pow­er, do hold he got it by Tyranny or Usurpation, and not by any due Ele­ction of the People or Multitude, or by any Faction with them.

As this Patriarchal Power continued in Abraham, Isaac, and Iacob, even until the Egyptian Bondage; so we find 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. And these are the Names of the Dukes that came of Esau, according to [Page 17] their families & their places by their nations.

(7) Some perhaps may think that these Princes and Dukes of Families were but some petty Lords under some greater Kings, because the number of them are so many, that their particular Territories could be but small, and not worthy the Ti­tle of Kingdoms; but they must consider, that at first, Kings had no such large Do­minions as they have now adays; we find in the time of Abraham, which was about 300 years after the Flood, that in a little corner of Asia, 9 Kings at once met in Ba­tail, most of which were but Kings of Cities apiece, with the adjacent Territo­ries, as of Sodom, Gomorrah, Shinar, &c. In the same Chapter is mention of Melchise­deck King of Salem, which was but the Ci­ty of Ierusalem. And in the Catalogue of the Kings of Edom, the Names of each King's City is recorded, as the only Mark to distinguish their Dominions. In the Land of Canaan, which was but a small cir­cuit, Ioshuah destroyed Thirty one Kings; and about the same time, Adonibeseck had 70 Kings,1 Kings 20. 16. whose Hands and Toes he had cut off, and made them feed under his Ta­ble. A few years after this, 32 Kings came to Benhadad King of Syria, and about [Page 18] Seventy Kings of Greece went to the Wars of Troy. Caesar found more Kings in France, than there be now Princes there, and at his Sailing over into this Island, he found four Kings in our County of Kent. These heaps of Kings in each Nation, are an Argument their Territories were but small, and strongly confirms our Assertion, that Erection of Kingdoms came at first only by Distinction of Families.

By manifest Footsteps we may trace this Paternal Government unto the Is­raelites coming into AEgypt, where the Exercise of Supreme Patriarchal Juris­diction was intermitted, because they were in subjection to a stronger Prince. After the Return of these Israelites out of Bondage, God out of a special Care of them, chose Moses and Iosuah suc­cessively to govern as Princes in the Place and Stead of the Supreme Fathers: and after them likewise for a time, he raised up Iudges, to defend his People in time of Peril. But when God gave the Israelites Kings, he reestablished the Antient and Prime Right of Lineal Suc­cession to Paternal Government. And [Page 19] whensoever he made choice of any spe­cial Person to be King, he intended that the Issue also should have benefit there­of, as being comprehended sufficiently in the Person of the Father, although the Father only was named in the Graunt.

(8.) It may seem absurd to maintain that Kings now are the Fathers of their People, since Experience shews the con­trary. It is true, all Kings be not the Natural Parents of their Subjects, yet they all either are, or are to be reputed the next Heirs to those first Progenitors, who were at first the Natural Parents of the whole People, and in their Right succeed to the Exercise of Supreme Iu­risdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers: And there­fore we find, that God told Cain of his Brother Abel, His Desires shall be subject unto thee, and thou shalt rule over him. Accordingly, when Iacob bought his Brother's Birth-right, Isaac blessed him thus,Gen. 27, 29. Be Lord over thy Brethren, and let the Sons of thy Mother bow before thee.

[Page 20]As long as the first Fathers of Fami­lies lived, the name of Patriarchs did aptly belong unto them; but after a few Descents, when the true Father­hood it self was extinct, and only the Right of the Father descends to the true Heir, then the Title of Prince or King was more Significant, to express the Power of him who succeeds only to the Right of that Fatherhood which his Ancestors did Naturally enjoy; by this means it comes to pass, that many a Child, by succeeding a King, hath the Right of a Father over many a Gray-headed Multitude, and hath the Title of Pater Patriae.

(9.) It may be demanded what be­comes of the Right of Fatherhood, in Case the Crown does escheate 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 al­ways is. 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, [Page 21] although the Knowledge who should be that one One Man be quite lost.

2. This Ignorance of the People be­ing admitted, it doth not by any means follow; that for want of Heirs the Su­preme Power is devolved to the Multi­tude, and that they have Power to Rule, and Chose what Rulers they please. No, the Kingly Power escheats in such cases to the Princes and 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 find the greater Monarchies were at the first erected; and into such again, as into their first Matter many times they return again. And because the dependencie of ancient Families is oft obscure or worn out of Knowledge; therefore the wisdom of All or Most Prin­ces have thought sit to adopt many times those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes, have enobled them, or made them fit and capable of such Re­gal Favours. All such prime Heads and Fathers have power to consent in the [Page 22] uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please: And he that is so Elected, claims not his Power as a Donative from the People; but as being substituted properly by God, from whom he re­ceives his Royal Charter of an Vniversal Father, though testified by the Mini­stry of the Heads of the People.

If it please God, for the Correction of the Prince, or punishment of the People, to suffer Princes to be removed, and others to be placed in their rooms, either by the Factions of the Nobility, or Rebellion of the People; in all such cases, the Judgment of God, who hath power to give and to take away King­doms, is most just: yet the Ministry of men who execute God's Judgments without Commission, is sinful and dam­nable. God doth but use and turn mens Vnrighteous Acts to the performance of his Righteous Decrees.

(10.) In all Kingdoms or Common­wealths in the World, whether the Prince be the Supreme Father of the People, or but the true Heir of such a [Page 23] Father, or whether he come to the Crown by Usurpation, or by Election of the Nobles, or of the People, or by any other way whatsoever; or whether some Few or a Multitude govern the Commonwealth: yet still the Authori­ty that is in any One, or in Many, or in All these, is the only Right and Na­tural Authority of a Supreme Father. There is and always shall be continued to the End of the World, a Natural Right of a Supreme Father over every Multitude, although by the secret Will of God, many at first do most unjust­ly obtain the Exercise of it.

To confirm this Natural Right of Regal Power, we find in the Decalogue, That the Law which enjoyns Obedi­ence to Kings, is delivered in the terms of Honour thy Father, as if all power were originally in the Father. If Obe­dience to Parents be immediately due by a Natural Law, and Subjection to Princes, but by the Mediation of an Humane Ordinance; what reason is there that the Laws of Nature should give place to the Laws of Men? as we see the power of the Father over his Child, [Page 24] gives place, and is subordinate to the power of the Magistrate.

If we compare the Natural Rights of a Father with those of a King, we find them all one, without any difference at all, but only in the Latitude or Extent of them: as the Father over one Fami­ly, so the King as Father over many Fa­milies extends his care to preserve, feed, cloth, instruct and defend the whole Commonwealth. His War, his Peace, his Courts of Justice, and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father, and to their Children, their Rights and Privileges; so that all the Duties of a King are summed up in an Universal Fatherly Care of his Peo­ple.

CHAP. II. It is unnatural for the People to Govern, or Chose Gover­nours.

(1.) ARistotle examined about the Freedom of the People, and ju­stified. (2.) Suarez disputing against the Regality of Adam. (3.) Fami­lies diversly defined by Aristotle, Bodin and others. (4.) Suarez contradicting Bellarmine. (5.) Of Election of Kings. (6.) By the Major part of the People. (7.) By Proxy, and by silent Acceptation. (8.) No Example in Scripture of the Peoples chosing their King, Mr. Hook­er's Iudgment therein. (9.) God go­verned always by Monarchy. (10.) Bel­larmine and Aristotle's Iudgment of Monarchy. (11.) Imperfections of the Roman Democratie. (12.) Rome [Page 26] began her Empire under Kings, and perfected under Emperours. In danger, the People of Rome always fled to Mo­narchy. (13.) Whether Democraties were invented to bridle Tyrants, or ra­ther that they came in by Stealth. (14.) Democraties vilified by their own Historians. (15.) Popular Government more bloody than Tyranny. (16.) Of a mixed Government of the King and People. (17.) The People may not judge or correct their King. (18.) No Ty­rants in England since the Conquest.

(1.) BY conferring these Proofs and Reasons drawn from the Authority of the Scrip­ture, it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude, to chose what Rulers they please.

Had the Patriarchs their Power gi­ven them by their own Children? Bel­larmine does not say it, but the Con­trary: If then the Fatherhood enjoy­ed this Authority for so many Ages by the Law of Nature, when was it lost, [Page 27] or when forfeited, or how is it devol­ved to the Liberty of the Multitude?

Because the Scripture is not favou­rable to the Liberty of the People; therefore many fly to Natural Reason, and to the Authority of Aristotle. I must crave Liberty to examine or explain the Opinion of this great Philosopher; but briefly, I find this Sentence in the Third of his Politiques. Cap. 16. [...]. It seems to some not to be natural for one man to be Lord of all the Ci­tizens, since a City consists of Equals. D. Lambine in his Latine Interpretati­on of this Text, hath omitted the Trans­lation of this word [ [...]] by this means he maketh that to be the Opinion of Aristotle, which Aristotle alleadgeth to be the Opinion but of some. This Neg­ligence, or Wilful Escape of Lambine, in not translating a word so Material, hath been an occasion to deceive ma­ny, who looking no farther than this Latine Translation, have concluded, and made the World now of late be­lieve, that Aristotle here maintains a [Page 28] Natural Equality of Men; and not on­ly our English Translator of Aristotle's Politiques is in this place misled by following Lambine; but even the Lear­ned Monsieur Duvall in his Synopsis bears them company: and yet this Version of Lambine's is esteemed the best, and Printed at Paris with Causabon's corre­cted Greek Copy, though in the ren­dring of this place, the Elder Transla­tions have been more faithful; and he that shall compare the Greek Text with the Latine, shall find that Causabon had just cause in his Preface to Aristotle's Works, to complain that the best Tran­slations of Aristotle did need Correcti­on: To prove that in these words which seem to favour the Equality of Mankind, Aristotle doth not speak according to his own Judgment, but recites only the Opinion of others; we find him clearly deliver his own Opinion, that the Power of Government did original­ly arise from the Right of Fatherhood, which cannot possibly consist with that Natural Equality which Men dream of: for in the First of his Politiques he agrees exactly with the Scripture, and lays this Foundation of Government, [Page 29] The first Society (saith he) made of Many Houses is a Village, which seems most naturally to be a Colony of Fami­lies or foster Brethren of Children and Childrens Children. And therefore at the beginning, Cities were under the Government of Kings, for the eldest in every house is King: And so for Kindred­sake it is in Colonies. And in the fourth of his Politiques, cap. 2, He gives the Ti­tle of the first and Divinest sort of Go­vernment to the Institution of Kings, by Defining Tyranny to be a Digression from the First and Divinest.

Whosoever weighs advisedly these passages, will find little hope of Natural Reason in Aristotle to prove the Natural Liberty of the Multitude. Also before him the Divine Plato concludes a Com­monweal to be nothing else but a large Family. I know for this Position Ari­stotle quarrels with his Master, but most unjustly, for therein he contradicts his own Principles: for they both agree to fetch the Original of Civil Govern­ment from the prime Government. No doubt but Moses's History of the Crea­tion guided these two Philosophers in [Page 30] finding out of this Lineal Subjection, deduced from the Laws of the First Parents, according to that Rule of St. Chrysostom, God made all Mankind of One Man, that he might teach the World to be Governed by a King, and not by a Multitude.

The Ignorance of the Creation, oc­casioned several Errors amongst the Heathen Philosophers. Polybius, though otherwise a most profound Philosopher, and Judicious Historian, yet here he stumbles; for in searching out the Origi­nal of Civil Societies, he conceited, That Multitudes of Men after a Deluge, a Famine, or a Pestilence, met together like Herds of Cattel without any Depen­dency, untill the strongest Bodies and bold­est Minds got the Mastery of their Fel­lows; even as it is (saith he) among Bulls, Bears and Cocks.

And Aristotle himself, forgetting his first Doctrine, tells us, the first Heroical Kings were chosen by the People for their deserving well of the Multitude; either by teaching them some New Arts, or by Warring for them, or by Gather­ing [Page 31] them together, or by Dividing Land amongst them; also Aristotle had another Fancy, that those Men who prove wise of Mind, were by Nature intended to be Lords, and Govern, and those which were Strong of Body were or­dained to obey, and to be Servants. But this is a dangerous and uncertain Rule, and not without some Folly; for if a man prove both Wise and Strong, what will Aristotle have done with him? as he was Wise, he could be no Servant, and as he had Strength, he could not be a Master; besides, to speak like a Philosopher, Nature intends all things to be perfect both in Wit and Strength. The Folly or Imbecillity pro­ceeds from some Errour in Generation or Education; for Nature aims at Per­fection in all her Works.

(2) Suarez the Jesuite riseth up a­gainst the Royal Authority of Adam, in defence of the Freedom and Liberty of the people; and thus argues. By Right of Creation (saith he) Adam had only Oeconomical power, but not Poli­tical; he had a power over his Wife, and a Fatherly power over his Sons, [Page 32] whilst they were not made Free: he might also in process of Time have Ser­vants and a Compleat Family; and in that Family he might have compleat Oeconomical Power. But after that Fa­milies began to be multiplied, and Men to be separated, and become the Heads of several Families; they had the same power over their Families. But Poli­tical Power did not begin, until Fami­lies began to be gathered together into one perfect Community; wherefore as the Community did not begin by the Creation of Adam, nor by his Will alone, but of all them which did agree in this Community: So we cannot say that Adam Naturally had Political Primacy in that Community; for that cannot be gathered by any Natural Principles, because by the Force of the Law of Nature alone, it is not due unto any Progenitor, to be also King of his Po­sterity. And if this be not gathered out of the Principles of Nature, we cannot say, God by a special Gift or Providence gave him this Power; For there is no Revelation of this, nor Te­stimony of Scripture. Hitherto Suarez.

[Page 33]Whereas he makes Adam to have a Fatherly power over his Sons, and yet shuts up this power within One Family, he seems either to imagine, that all A­dam's Children lived within one House, and under one Roof with their Father; or else, as soon as any of his Children lived out of his House, they ceased to be Subject, and did thereby become Free. For my part, I cannot believe that Adam (although he were sole Mo­narch of the World) had any such spa­cious Palace, as might contain any such Considerable part of his Children. It is likelier, that some mean Cottage or Tent did serve him to keep his Court in. It were hard he should lose part of his Authority, because his Children lay not within the Walls of his House. But if Suarez will allow all Adam's Children to be of his Family, howsoever they were separate in Dwellings; if their Ha­bitations were either Contiguous, or at such Distance, as might easily receive his Fatherly Commands. And that all that were under his Commands, were of his Family, although they had many Children or Servants married, having themselves also Children. Then I see [Page 34] no reason, but that we may call Adam's Family a Commonwealth, except we will wrangle about Words: For Adam living 930 years, and seeing 7 or 8 De­scents from himself, he might live to command of his Children and their Po­sterity a Multitude far bigger, than many Commonwealths and Kingdoms.

(3.) I know the Politicians and Civil Lawyers do not agree well about the Definition of a Family, and Bodin doth seem in one place to confine it to a House; yet in his Definition, he doth enlarge his meaning to all Persons un­der the Obedience of One and the Same Head of the Family; and he approves better of the propriety of the Hebrew Word for a Family, which is derived from a Word that signifies a Head, a Prince, or Lord, than the Greek Word for a Family, which is derived from [...], which signifies a House. Nor doth Aristotle confine a Family to One House; but esteems it to be made of those that daily converse together: whereas before him, Charondas called a Family Homosypioi, those that feed to­gether out of one common Pannier. And [Page 35] Epimenides the Cretian, terms a Family Homocapnoi, those that sit by a Common Fire, or Smoak. But let Suarez under­stand what he please by Adam's Fami­ly; if he will but confess, as he needs must, that Adam and the Patriarchs had Absolute power of Life and Death, of Peace and War, and the like, within their Houses or Families; he must give, us leave at least, to call them Kings of their Hou­ses or Families; and if they be so by the Law of Nature, what Liberty will be left to their Children to dispose of?

Aristotle gives the Lie to Plato, and those that say Political and Oeconomical Societies are all one, and do not differ Specie, but only Multitudine & Pauci­tate; as if there were no difference be­twixt a Great House and a Little City. All the Argument I find he brings a­gainst them in this.

The Community of Man and Wife,Arist. Pol. Lib. 1. c. 2. differs from the Community of Master and Servant, because they have seve­ral Ends. The Intention of Nature by Conjunction of Male and Female, is Generation; but the Scope of Master and Servant, is Preservation: so that a [Page 36] Wife and a Servant are by Nature di­stinguished, because Nature does not work like the Cutlers of Delphos, for she makes but one thing for one Use. If we allow this Argument to be sound, no­thing doth follow but only this, That Conjugal and Despotical communities do differ. But it is no consequence, That therefore, Oeconomical and Political So­cieties do the like: For though it prove a Family to consist of two distinct Com­munities, yet it follows not, that a Fa­mily and a Commonwealth are distinct; because, as well in the Commonweal, as in the Families, both these Commu­nities are found.

And as this Argument comes not home to our Point, so it is not able to prove that Title which it shews for; for if it should be granted (which yet is false) that Generation and Preservati­on differ about the Individuum, yet they agree in the General, and serve both for the Conservation of Mankind; Even as several Servants differ in the particular Ends or Offices; as one to Brew, and another to Bake; yet they agree in the general Preservation of the [Page 37] Family. Besides, Aristotle confesses, that amongst the Barbarians (as he calls all them that are not Grecians) a Wife and a Servant are the same, because by Nature, no Barbarian is fit to Govern; It is fit the Grecians should rule over the Barbarians; for by Nature a Ser­vant and a Barbarian is all one: their Family consists only of an Ox for a Man-Servant, and a Wife for a Maid; so they are fit only to rule their Wives and their Beasts. Lastly, Aristotle (if it had pleased him) might have remembred, That Nature doth not always make one Thing but for one Use: he knows, the Tongue serves both to Speak, and to Taste.

(4.) But to leave Aristotle, and re­turn to Suarez; he saith that Adam had Fatherly Power over his Sons, whilst they were not made Free. Here I could wish that the Jesuite had taught us, how and when Sons become Free: I know no means by the Law of Na­ture. It is the Favour I think of the Parents only, who when their Children are of Age and Discretion to ease their Parents of part of their Fatherly Care, [Page 38] are then content to remit some part of their Fatherly authority; therefore the Custom of some Countreys doth in some Cases Enfranchise the Children of Infe­riour Parents, but many Nations have no such Custome, but on the contrary have strict Laws for the Obedience of Children: the Judicial Law of Moses giveth full power to the Father to stone his disobedient Son, so it be done in pre­sence of a Magistrate: And yet it did not belong to the Magistrate to enquire and examine the justness of the Cause; But it was so decreed, lest the Father should in his Anger, suddenly, or secret­ly kill his Son.

Also by the Laws of the Persians, and of the People of the Upper Asia, and of the Gaules, and by the Laws of the West-Indies, the Parents have power of Life and Death over their Children.

The Romans, even in their most Po­pular Estate, had this Law in force, and this Power of Parents was ratified and amplified by the Laws of the Twelve Tables, to the enabling of Parents to sell their Children two or three times [Page 39] over. By the help of the Fatherly Pow­er, Rome long flourished, and oftentimes was freed from great Dangers. The Fathers have drawn out of the very As­semblies their own Sons; when being Tribunes, they have published Laws ten­ding to Sedition.

Memorable is the Example of Cassius, who threw his Son headlong out of the Consistory, publishing the Law Agraria, for the Division of Lands, in the behoof of the people; and afterwards, by his own private Judgment put him to Death, by throwing him down from the Tarpei­an Rock; the Magistrates and People standing thereat amazed, and not daring to resist his Fatherly Authority, although they would with all their Hearts, have had that Law for the Division of Land: by which it appears, it was lawful for the Father to dispose of the Life of his Child, contrary to the Will of the Ma­gistrates or People. The Romans also had a Law, that what the Children got, was not their own, but their Fathers; although Solon made a Law, which ac­quitted the Son from Nourishing of his Father, if his Father had taught him [Page 40] no Trade, whereby to get his Living.

Suarez proceeds, and tells us, That in Process of Time, Adam had compleat Oeconomical Power. I know not what this compleat Oeconomical Power is, nor how, or what it doth really and es­sentially differ from Political: If Adam did, or might exercise the same Jurisdi­ction, which a King doth now in a Com­monwealth, then the Kinds of Power are not distinct; and though they may receive an Accidental Difference by the Amplitude, or Extent of the Bounds of the One beyond the Other; yet since the like Difference is also found in Po­litical Estates, It follows that Oeconomi­cal and Political Power, differ no other­wise, than a Little Commonweal differs from a Great One. Next, saith Suarez, Commnnity did not begin at the Creation of Adam. It is true, because he had no body to Communicate with; yet Com­munity did presently follow his Creati­on, and that by his Will alone: for it was in his power only, (who was Lord of All) to appoint what his Sons should have in Proper, and what in Common; so that Propriety and Community of Goods did follow Originally from Him; [Page 41] and it is the Duty of a Father, to pro­vide as well for the Common Good of his Children, as the Particular.

Lastly, Suarez Concludes, That by the Law of Nature alone, it is not due unto any Progenitor, to be also King of his Posterity. This Assertion is con­futed point-blank by Bellarmine, who expresly affirmeth, That the First Pa­rents ought to have been Princes of their posterity. And untill Suarez bring some Reason for what he saith: I shall trust more to Bellarmine's Proofs, than to his Denials.

(5.) But let us Condescend a while to the Opinion of Bellarmine and Suarez, and all those, who place Supreme pow­er in the Whole People; and ask them if their meaning be, That there is but one and the same power in All the peo­ple of the World; so that no power can be granted, except All the Men up­on the Earth meet and agree, to choose a Governour.

An Answer is here given by Suarez, That it is scarce possible, nor yet expe­dient, [Page 42] that All Men in the World should be gathered together into One Commu­nity: It is likelier, that either never, or for a very short time, that this power was in this manner, in the whole Mul­titude of Men collected; but a little af­ter the Creation, men began to be divi­ded into several Commonwealths; and this distinct power was in Each of them.

This Answer of Scarce possible, nor yet Expedient: — It is likelier begets a new doubt, how this Distinct power comes to each particular Community, when God gave it to the whole Multi­tude only, and not to any particular Assembly of Men. Can they shew, or prove, that ever the whole Multitude met, and divided this power which God gave them in Gross, by breaking into parcels, and by appointing a di­stinct power to each several Common­wealth? Without such a Compact I can­not see (according to their own Prin­ciples) how there can be any Election of a Magistrate by any Commonwealth, but by a meer Usurpation upon the pri­vilege of the whole World. If any think [Page 43] 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 raise a New Commonwealth, and to make more Commonweals than there be Families in the World. But let this also be yiel­ded them, That in each particular Com­monwealth, there is a Distinct Power in the Multitude. Was a General Meeting of a Whole Kingdom ever known for the Election of a Prince? Is there any Example of it ever found in the Whole World? To conceit such a thing, is to imagine little less than an Impossibility. And so by Consequence, no one Form of Government, or King, was ever esta­blished according to this supposed Law of Nature.

(6.) It may be answered by some, That if either the Greatest part of a Kingdom, or if a smaller part only by Themselves, and all the Rest by Proxy, or if the part not concurring in Electi­on, do after, by a Tacit Assent ra­tifie [Page 44] the Act of Others, That in all these Cases, it may be said to be the Work of the whole Multitude.

As to the Acts of the Major part of a Multitude, it is true, that by Politick Humane Constitutions, it is oft ordain­ed, that the Voices of the most shall o­ver-rule the Rest; and such Ordinances bind, because, where Men are Assem­bled by an Humane Power; that pow­er that doth Assemble them, can also Limit and Direct the manner of the Ex­ecution of that Power, and by such Derivative Power, made known by Law or Custom, either the greater part, or two Thirds, or Three parts of Five, or the like, have power to oversway the Liberty of their Opposits. But in As­semblies that take their Authority from the Law of Nature, it cannot be so: for what Freedom or Liberty is due to any Man by the Law of Nature, no Inferi­our Power can alter, limit or diminish; no One Man, nor a Multitude, can give away the Natural Right of ano­ther. The Law of Nature is unchange­able, and howsoever One Man may hin­der Another in the Use or Exercise of [Page 45] his Natural Right, yet thereby No Man loseth the Right of it self; for the Right and the Use of the Right may be di­stinguished, as Right and Possession are oft distinct. Therefore, unless it can be proved by the Law of Nature, that the Major, or some other part, have Power to over-rule the Rest of the Multitude; It must follow, that the Acts of Multi­tudes not Entire, are not Binding to All, but only to such as Consent unto them.

(7.) As to the point of Proxy; it cannot be shewed or proved, That all those that have been Absent from Popu­lar Elections, did ever give their Voi­ces to some of their Fellows. I ask but one Example out of the History of the whole World, let the Commonweal be but named, wherever the Multitude, or so much as the Greatest part of it consented, either by Voice or by Pro­curation, to the Election of a Prince. The Ambition sometimes of One Man, sometimes of Many, or the Faction of a City or Citizens, or the Mutiny of an Army, hath set up or put down Princes; but they have never tarried for this pretended Order by proceeding of the whole Multitude.

[Page 46]Lastly, if the silent Acceptation of a Governour by part of the People, be an Argument of their Concurring in the Election of him; by the same Rea­son, the Tacit Assent of the whole Com­monwealth may be maintained: From whence it follows, that every Prince that comes to a Crown, either by Succession, Conquest, or Vsurpation, may be said to be Elected by the Peo­ple; which Inference is too ridiculous; for in such Cases, the People are so far from the Liberty of Specification, that they want even that of Contradicti­on.

(8.) But it is in vain to argue a­gainst the Liberty of the People in the Election of Kings, as long as men are perswaded, that Examples of it are to be found in Scripture. It is fit there­fore, to discover the Grounds of this Er­rour: It is plain by an Evident Text, that it is one thing to choose a King, and another thing to set up a King over the People; this latter power the Chil­dren of Israel had, but not the former. This Distinction is found most evident in Deut. 17. 15. where the Law of God [Page 47] saith, Him shalt thou set King over thee, whom the Lord shall choose; so God must Eli­gere, and the People only do Constitu­ere. Mr. Hooker in his Eighth Book of Ecclesiastical Policy, clearly expounds this Distinction; the words are worthy the citing: Heaps of Scripture (saith he) are alledged, concerning the Solemn Coro­nation or Inauguration of Saul, David, So­lomon and others, by Nobles, Ancients, and the people of the Commonwealth of Is­rael; as if these Solemnities were a kind of Deed, whereby the Right of Domi­nion is given; which strange, untrue, and unnatural conceits, are set abroad by Seed-men of Rebellion, only to animate unquiet Spirits, and to feed them with possibilities of Aspiring unto the Thrones, if they can win the Hearts of the Peo­ple; whatsoever Hereditary Title any other before them may have. I say these unjust and insolent Positions, I would not mention, were it not there­by to make the Countenance of Truth more Orient. For unless we will openly proclaim Defiance unto all Law, Equity and Reason, we must (for there is no other Remedy) acknowledg, that in Kingdoms Hereditary, Birth-right [Page 48] giveth Right unto Sovereign Domini­on, and the Death of the Predecessor, putteth the Successor by Blood in Sei­sin. Those publick Solemnities before-mentioned, do either serve for an open Testification of the Inheritor's Right, or belong to the Form of inducing of him into possession of that thing he hath Right unto. This is Mr. Hooker's Judgment of the Israelites Power to set a King over themselves. No doubt, but if the people of Israel had had pow­er to choose their King, they would never have made Choice of Ioas, a Child but of Seven years old, nor of Manas­ses a Boy of Twelve; since (as Solomon saith) Wo to the Land whose King is a Child: Nor is it probable they would have elected Iosias, but a very Child, and a Son to so Wicked and Idola­trous a Father, as that his own Ser­vants murthered him; and yet all the people set up this young Iosias, and flew the Conspirators of the Death of Ammon his Father; which Justice of the People, God rewarded, by making this Iosias the most Religious King, that ever that Nation enjoyed.

[Page 49](9.) Because it is affirmed, that the People have power to choose, as well what Form of Government, as what Governours they please; of which mind is Bellarmine, in those places we cited at first. Therefore it is necessary to Examine the Strength of what is said in Defence of popu­lar Commonweals, against this Na­tural Form of Kingdoms, which I maintain'd. Here I must first put the Cardinal in mind of what he affirms in Cold Blood, in other places; where he saith, God when he made all Man­kind of One Man, did seem openly to signifie, that he rather approved the Go­vernment of One Man, than of Many. Again, God shewed his Opinion, when he endued not only 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 Au­thor of Nature. And again; in a Third place, What Form of Govern­ment God confirmed by his Authori­ty, may be gathered by that Common­weal, which he instituted amongst the [Page 50] Hebrews, which was not Aristocratical, (as Calvin saith) but plainly Monarchi­chal.

(10.) Now if God, (as Bellarmine saith) hath taught us by Natural In­stinct, signified to us by the Creation, and confirmed by his own Example the Excellency of Monarchy, why should Bellarmine or We doubt, but that it is Natural? Do we not find, that in every Family, the Govern­ment of One Alone, is most Natural? God did always Govern his own Peo­ple by Monarchy only. The Patri­archs, Dukes, Iudges and Kings were all Monarchs. There is not in all the Scripture, Mention or Approbation of any other Form of Government. At the time when Scripture saith, There was No King in Israel, but that every Man did that which was Right in his Own Eyes; Even then, the Israelites were under the Kingly Government of the Fathers of particular Families: For in the Consultation, after the Ben­jamitical War, for providing Wives for the Benjamites, we find, the Elders of the Congregation bare only Sway. [Page 51] Iudges 21. 16. To them also were Com­plaints to be made, as appears by Verse 22. And though mention be made of All the Children of Israel, All the Congregation, and All the Peo­ple; yet by the Term of All, the Scrip­ture means only All the Fathers, and not All the Whole Multitude, as the Text plainly expounds it self in 2. Chron. 1. 2. where Solomon speaks unto all Israel, to the Captains, the Iudges, and to Every Governour the Chief of the Fathers; so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel. 1 Kings 8. 12. 2 Chron. 5. 2.

At that time also, when the People of Israel beg'd a King of Samuel, they were Governed by Kingly Power. God out of a special Love and Care to the House of Israel, did choose to be their King himself, and did govern them at that time by his Viceroy Samuel, and his Sons; and therefore God tells Samuel, They have not rejected Thee but Me, that I should not Reign over them. It seems they did not like a King by Deputati­on, [Page 52] but desired one by Succession, like all the Nations. All Nations belike had Kings then, and those by Inhe­ritance, not by Election: for we do not find the Israelites prayed, that they themselves might choose their Own King; they dream of no such Liberty, and yet they were the Elders of Israel gathered together. If other Nations had Elected their own Kings, no doubt but they would have been as desirous to have imitated O­ther Nations as well in the Electing, as in the Having of a King.

Aristotle in his Book of Politicks, when he comes to compare the several Kinds of Government, he is very reser­ved in discoursing what Form he thinks Best: he disputes subtilely to and fro of many Points, and Judici­ously of many Errours, but conclu­des nothing himself. In all those Books, I find little Commendation of Mo­narchy. It was his Hap to live in those Times when the Grecians abound­ed with several Commonwealths, who had then Learning enough to make [Page 53] them seditious. Yet in his Ethicks, he hath so much good Manners, as to confess in right down words, That Monarchy is the Best Form of Govern­ment, and a Popular Estate the Worst. And though he be not so free in his Politicks, yet the Necessity of Truth hath here and there extorted from him, that which amounts no less to the Dignity of Monarchy; he confesseth it to be First, the Natural, and the Divinest Form of Government; and that the Gods themselves did live un­der a Monarchy. What can a Hea­then say more?

Indeed, the World for a long time knew no other sort of Government, but only Monarchy. The Best Or­der, the Greatest Strength, the Most Stability and Easiest Government, are to be found all in Monarchy, and in no other Form of Government. The New Platforms of Commonweals, were first hatched in a Corner of the World, amongst a few Cities of Greece, which have been imitated by very few other laces. Those very Cities [Page 54] were first, for many years, governed by Kings, untill Wantonness, Ambition or Faction of the People, made them attempt New kinds of Regiment; all which Mutations proved most Bloody and Miserable to the Authors of them; happy in nothing, but that they conti­nued but a small time.

(11.) A little to manifest the Im­perfection of Popular Government, let us but examine the most Flourishing Democratie that the World hath ever known; I mean that of Rome. First, for the Durability; at the most, it last­ed but 480 Years (for so long it was from the Expulsion of Tarquin, to Iu­lius Caesar.) Whereas both the Assy­rian Monarchy lasted, without Inter­ruption, at the least twelve hundred years, and the Empire of the East con­tinued 1495 Years.

2. For the Order of it, during these 480 years, there was not any One set­tled Form of Government in Rome: for after they had once lost the Na­tural Power of Kings, they could not [Page 55] find upon what Form of Government to rest: their Fickleness is an Evi­dence that they found things amiss in every Change. At the First they chose two Annual Consuls instead of Kings. Secondly, those did not please them long, but they must have Tri­bunes of the People to defend their Liberty. Thirdly, they leave Tribunes and Consuls, and choose them Ten Men to make them Laws. Fourthly, they call for Consuls and Tribunes a­gain: sometimes they choose Dicta­tors, which were Temporary Kings, and sometimes Military Tribunes, who had Consular Power. All these shiftings caused such notable Alteration in the Government, as it passeth Historians to find out any Perfect Form of Regi­ment in so much Confusion: One while the Senate made Laws, another while the People. The Dissentions which were daily between the Nobles and the Commons, bred those memo­rable Seditions about Vsury, about Marriages, and about Magistracy. Al­so the Graecian, the Apulian, and the Drusian Seditions, filled the Market­places, [Page 56] the Temples, and the Capitol it self, with Blood of the Citizens; the Social War was plainly Civil; the Wars of the Slaves, and the other of the Fencers; the Civil Wars of Marius and Sylla, of Cataline, of Cae­sar and Pompey the Triumvirate, of Augustus, Lepidus and Antonius: All these shed an Ocean of Blood within Italy and the Streets of Rome.

Thirdly, for their Government, let it be allowed, that for some part of this time it was Popular, yet it was Popular as to the City of Rome only, and not as to the Dominions, or whole Empire of Rome; for no Democratie can extend further than to One City. It is impo­ssible to Govern a Kingdom, much less many Kingdoms by the whole People, or by the Greatest Part of them.

(12.) But you will say, yet the Ro­man Empire grew all up under this kind of Popular Government, and the City became Mistress of the World. It is not so; for Rome began her Em­pire under Kings, and did perfect it [Page 57] under Emperours; it did only en­crease under that Popularity: Her greatest Exaltation was under Trajan, as her longest Peace had been under Augustus. Even at those times, when the Roman Victories abroad, did amaze the World, then the Tragical Slaugh­ter of Citizens at home, deserved Com­miseration from their vanquished E­nemies. What though in that Age of her Popularity, she bred many admi­red Captains and Commanders (each of which was able to lead an Army, though many of them were but ill re­quited by the People?) yet all of them were not able to support her in times of Danger; but she was forced in her greatest Troubles to create a Dictator (who was a King for a time) there­by giving this Honourable Testimo­ny of Monarchy, that the last Refuge in Perils of States, is to fly to Regal Authority. And though Romes Popu­lar Estate for a while was miraculou­sly upheld in Glory by a greater Pru­dence than her own; yet in a short time, after manifold Alterations, she was ruined by her Own Hands. Suis & [Page 58] ipsa Roma viribus ruit: For the Arms she had prepared to conquer other Na­tions, were turned upon her Self, and Civil Contentions at last settled the Government again into a Monarchy.

(13.) The Vulgar Opinion is, that the first Cause why the Democra­tical Government was brought in, was to curb the Tyranny of Monarchies. But the Falshood of this doth best appear by the first Flourishing Popular Estate of Athens, which was founded, not because of the Vices of their last King, but that his Vertuous Deserts were such as the people thought no man Worthy e­nough to succeed him; a pretty wan­ton Quarrel to Monarchy! For when their King Codrus understood by the Oracle, that his Country could not be saved, unless the King were slain in the Battel: He in Disguise entered his Enemies Camp, and provoked a Com­mon Souldier to make him a Sacri­fice for his own Kingdom, and with his Death ended the Royal Govern­ment; for after him was never any [Page 59] more Kings of Athens. As Athens thus for Love of her Codrus, changed the Government, so Rome on the contra­ry, out of Hatred to her Tarquin, did the like. And though these two famous Commonweals did for contrary causes abolish Monarchy, yet they both agreed in this, that neither of them thought it fit to change their State into a Democratie: but the one chose Archontes, and the other Consuls to be their Governours; both which did most resemble Kings, and continued, untill the People by lessening the Au­thority of these their Magistrates, did by degrees and stealth bring in their Popular Government. And I verily be­lieve, never any Democratical State shewed it self at first fairly to the World by any Elective Entrance, but they all secretly crept in by the Back­door of Sedition and Faction.

(14.) If we will listen to the Judg­ment of those who should best know the Nature of Popular Government, we shall find no reason for good men to desire or choose it. Zenophon that [Page 60] brave Scholar and Souldier disallow­ed the Athenian Commonweal, for that they followed that Form of Go­vernment wherein the Wicked are al­ways in greatest Credit, and Vertuous men kept under. They expelled A­ristides the Just; Themistocles died in Banishment; Meltiades in Prison; Phocion the most virtuous and just man of his Age, though he had been chosen forty five times to be their Gene­ral, yet he was put to Death with all his Friends, Kindred and Servants, by the Fury of the People, without Sentence, Accusation, or any Cause at all. Nor were the People of Rome much more favourable to their Worth­ies; they banished Rutilius, Metellus, Coriolanus, the Two Scipio's and Tully: the worst men sped best; for as Ze­nophon saith of Athens, so Rome was a Sanctuary for all Turbulent, Discon­tented and Seditious Spirits. The Impunity of Wicked men was such, that upon pain of Death, it was for­bidden all Magistrates to Condemn to Death, or Banish any Citizen, or to deprive him of his Liberty, or so [Page 61] much as to whip him for what Offence soever he had committed, either against the Gods or Men.

The Athenians sold Justice as they did other Merchandise; which made Plato call a Popular Estate a Fair, where every thing is to be sold. The Officers when they entered upon their Charge, would brag, they went to a Golden Harvest. The Corruption of Rome was such, that Marius and Pompey durst carry Bushels of Silver into the Assemblies, to purchase the Voices of the People. Many Citizens under their Grave Gowns, came Arm­ed into the Publick Meetings, as if they went to War. Often contrary Factions fell to Blows, sometimes with Stones, and sometimes with Swords; the Blood hath been suckt up in the Market Places with Spunges; the Ri­ver Tiber hath been filled with the Dead Bodies of the Citizens, and the common Privies stuffed full with them.

If any man think these Disorders in Popular States were but Casual, or such as might happen under any kind of Government, he must know, [Page 62] that such Mischiefs are Unavoida­ble, and of necessity do follow all Democratical Regiments; and the Rea­son is given, because the Nature of all People is, to desire Liberty without Restraint, which cannot be but where the Wicked bear Rule; and if the People should be so in­discreet, as to advance Vertuous Men, they lose their Power: For that, Good Men would favour none but the Good, which are always the few­er in Number; and the Wicked and Vitious (which is still the Greatest Part of the People) should be ex­cluded from all Preferment, and in the End, by little and little, Wise men should seize upon the State, and take it from the People.

I know not how to give a better Character of the People, than can be gathered from such Authors as liv­ed Amongst or Near the Popular States; Thucydides, Zenophon, Livie, Tacitus, Cicero, and Salust, have set them out in their Colours. I will borrow some of their Sentences:

[Page 63] ‘There is nothing more uncertain than the People; their Opinions are as variable and suddain as Tem­pests; there is neither Truth nor Judgment in them; they are not led by Wisdom to judg of any thing, but by Violence and Rashness; nor put they any Difference between things True and False. After the manner of Cattel, they follow the Herd that goes before; they have a Custom always to favour the Worst and Weakest; they are most prone to Suspitions, and use to Condemn men for Guilty upon any false Sug­gestion; they are apt to believe all News, especially if it be sorrowful; and like Fame, they make it more in the Believing; when there is no Author, they fear those Evils which themselves have feigned; they are most desirous of New Stirrs and Changes, and are Enemies to Qui­et and Rest; whatsoever is Giddy or Head-strong, they account Man­like and Couragious; but whatsoe­ver is Modest or provident, seems sluggish; each man hath a Care of [Page 64] his Particular, and thinks basely of the Common Good; they look up­on Approaching Mischiefs as they do upon Thunder, only every man wisheth it may not touch his own Person; it is the Nature of them, they must Serve basely, or Domi­neer proudly; for they know no Mean.’ Thus do they paint to the Life this Beast with many Heads. Let me give you the Cypher of their Form of Government; As it is begot by Sedition, so it is nourished by Arms: It can never stand without Wars, either with an Enemy abroad, or with Friends at Home. The only Means to preserve it, is, to have some powerful Enemies near, who may serve instead of a King to Govern it, that so, though they have not a King amongst them, yet they may have as good as a King Over them: For the Common Danger of an Enemy keeps them in better Unity, than the Laws they make themselves.

[Page 65](15) Many have exercised their Wits in parallelling the Inconveniences of Regal and Popular Government, but if we will trust Experience before Spe­culations Philosophical, it cannot be denyed but this one Mischief of Sedition which necessarily waits upon all Populari­ty, weighes down all the Inconveniences that can be found in Monarchy, though they were never so many. Itis said, Skin for Skin, yea, all that a man hath will he give for his Life; and a man will give his Riches for the ransome of his Life. The way then to examine what Proportion the mischiefs of Sedition and Tyranny have one to another, is to enquire in what kind of Government most Subjects have lost their Lives: Let Rome which is magnified for her Po­pularity, and vilified for the Tyrannical Monsters the Emperours, furnish us with Examples. Consider-whether the Cruelty of all the Tyrannical Emperours that ever ruled in this City did ever spill a quarter of the Blood that was pour­ed out in the last hundred years of her glorious Common wealth. The Murthers by Tyberius, Domitian, and Commodus, put all together, cannot match that Ci­vil [Page 66] Tragedy which was acted in that one Sedition between Marius and Sylla, nay, even by Sylla's part alone (not to mention the Acts of Marius) were four­score and ten Senators put to death, fifteen Consuls, two thousand and six hundred Gentlemen, and a hundred thousand others.

This was the Heighth of the Roman Liberty: Any Man might be killed that would. A favour not fit to be granted under a Royal Government. The Mi­series of those Licentious Times are briefly touched by Plutarch in these Words. Sylla (saith he) fell to sheding of Bloud, and filled all Rome with infi­nite and unspeakable Murthers—This was not only done in Rome, but in all the Cities of Italy throughout, there was no Temple of any God whatsoever, no Altar in any bodies House, no Liberty of Hospital, no Fathers House, which was not embrewed with Blood, and hor­rible Murthers, the Husbands were slain in the Wives Armes, and the Children in the Mothers Laps; and yet they that were Slain for private Malice were no-nothing in respect of those that were [Page 67] Murthered only for their Goods— He openly Sold their Goods by the Cryer, sitting so proudly in his Chair of State, that it grieved the People more to see their goods packt up by them to whom he gave, or disposed them, than to see them taken away. Sometimes he would give a whole Countrey, or the whole Revenues of certain Cities, unto Women for their Beauties, or to plea­sant Jeasters, Minstrels, or wicked Slaves, made free. And to some he would give other mens VVives by force, and make them be Married against their wills. Now let Tacitus and Suetonius be searched, and see if all their Cruel Em­perours can match this Popular Villa­ny, in such an Universal Slaughter of Ci­tizens, or Civil Butchery. God only was able to match him, and over-match­ed him, by fitting him with a most re­markable Death, just answerable to his Life, for as he had been the Death of many thousands of his Country-men, so as many thousands of his own Kindred in the flesh were the Death of him, for he died of an Impostume, which corrupt­ed his Flesh in such sort, that it turned all to Lice, he had many about him to [Page 68] Shift him continually Night and Day; yet the Lice they wiped from him, were nothing to them that multiplied upon him, there was neither Apparel, Linnen, Bathes, VVashings, nor meat it self, but was presently filled with Swarms of this vile Vermine. I cite not this to exte­nuate the Bloody Acts of any Tyrannical Princes, nor will I plead in Defence of their Cruelties: Only in the Compa­rative, I maintain the Mischiefs to a State to be less Universal under a Ty­rant King; for the Cruelty of such Ty­rants extends ordinarily no further then to some Particular Men that offend him, and not to the whole Kingdome: It is truly said by his late Majesty King Iames, a King can never be so notori­ously Vitious, but he will generally fa­vour Justice, and maintain some Order; except in the particulars wherein his in­ordinate Lust carries him away. Even cruel Domitian, Dionysius the Tyrant, and many others, are commended by Histo­rians for great Observers of Justice: A natural Reason is to be rendered for it; It is the Multitude of People, and the a­bundance of their Riches, which are the only Strength and Glory of every [Page 69] Prince: The Bodies of his Subjects do him Service in VVar, and their Goods supply his present wants, therefore if not out of Affection to his people, yet out of Natural Love to Himself, every Tyrant desires to preserve the Lives, and protect the Goods of his Subjects, which cannot be done but by Justice, and if it be not done, the Princes Loss is the greatest; on the contrary, in a Popular State, every man knows the publick good doth not depend wholly on his Care, but the Common-wealth may well enough be governed by others though he tend only his Private Benefit, he never takes the Publick to be his Own Business; thus as in a Family, where one Office is to be done by many Servants, one looks upon another, and every one leaves the Business for his Fellow, until it is quite neglected by all; nor are they much to be blamed for their Negligence, since it is an even Wager, their Ignorance is as great: For Magistrates among the People, being for the most part Annual, do always lay down their Office before they understand it; so that a Prince of a Duller understanding, by Use and [Page 70] Experience must needs excell them; again, there is no Tyrant so barbarously Wicked, but his own reason and sense will tell him, that though he be a God, yet he must dye like a Man; and that there is not the Meanest of his Subjects but may find a means to revenge him­self of the Injustice that is offered him: hence it is that great Tyrants live con­tinually in base fears, as did Dionysius the Elder; Tiberius, Caligula, and Nero are noted by Suctonius to have been frighted with Panick fears. But it is not so, where wrong is done to any Particular Person by a Multitude, he knows not who hurt him, or who to complain of, or to whom to address himself for re­paration. Any man may boldly exer­cise his Malice and Cruelty in all Po­pular Assemblies. There is no Tyranny to be compared to the Tyranny of a Multitude.

(16) What though the Government of the People be a thing not to be en­dured, much less defended, yet many men please themselves with an Opini­nion, that though the People may not Govern; yet they may partake and [Page 71] joyn with a King in the Government, and so make a State mixed of Popular and Regal power, which they take to be the best tempered and equallest Form of Government. But the vanity of this Fancy is too evident, it is a meer Impossibility or Contradiction, for if a King but once admit the People to be his Companions, he leaves to be a King, and the State becomes a Democracy; at least, he is but a Titular and no Real King, that hath not the Soveraignty to Himself; for the having of this alone, and nothing but this makes a King to be a King. As for that Shew of Popula­rity which is found in such Kingdoms as have General Assemblies for Consul­tation about making Publick Laws: It must be remembred that such Meetings do not Share or divide the Soveraignty with the Prince: but do only deliberate and advise their Supreme Head, who still reserves the Absolute power in himself; for if in such Assemblies, the King, the Nobility, and People have equal Shares in the Soveraignty, then the King hath but one Voice, the No­bility likewise one, and the People one, and then any two of these Voices should [Page 72] have Power to over-rule the third; thus the Nobility and Commons toge­ther should have Power to make a Law to bind the King, which was never yet seen in any Kingdom, but if it could, the State must needs be Popular and not Regal.

(17) If it be Unnatural for the Mul­titude to chuse their Governours, or to Govern, or to partake in the Govern­ment, what can be thought of that dam­nable Conclusion which is made by too many, that the Multitude may Cor­rect, or Depose their Prince, if need be? Surely the Unnaturalness, and Inju­stice of this Position cannot sufficiently be expressed: For admit that a King make a Contract or Paction with his people, either Originally in his Ancestors, or personally at his Coronation (for both these Pactions some dream of, but cannot offer any proof for either) yet by no Law of any Nation can a Contract be thought broken, except that first a Law­ful Tryal be had by the Ordinary Judge of the Breakers thereof, or else every Man may be both Party and Judge in his own case, which is absur'd once to be [Page 73] thought, for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Go­vernment (that God hath laid upon them) to judge and punish him, by whom they should be Judged and punished themselves. Aristotle can tell us, what Judges the Multitude are in their own case, [...], The Judgment of the Multitude in Dispo­sing of the Soveraignty may be seen in the Roman History, where we may find many good Emperours Murthered by the People, and many bad Elected by them: Nero, Heliogabalus, Otho, Vitelli­us, and such other Monsters of Nature, were the Minions of the Multitude, and set up by them: Pertinax, Alexan­der, Severus, Gordianus, Gallus Emilia­nus, Quintilius, Aurelianus, Tacitus, Probus, and Numerianus; all of them good Emperours in the Judgment of all Historians, yet Murthered by the Mul­titude.

(18) Whereas many out of an imagi­nary Fear pretend the power of the peo­ple to be necessary for the repressing of [Page 74] the Insolencies of Tyrants; wherein they propound a Remedy far worse than the Disease, neither is the Disease indeed so frequent as they would have us think, Let us be jugded by the History even of our own Nation: We have enjoyed a Succession of Kings from the Conquest now for above 600 years (a time far longer than ever yet any Popular State could continue) we reckon to the Num­ber of twenty six of these Princes since the Norman Race, and yet not one of these is taxed by our Historians for Tyranni­cal Government. It is true, two of these Kings have been Deposed by the people, and barbarously Murthered, but neither of them for Tyranny: For as a learned Historian of our Age saith, Edward the Second and Richard the Se­cond were not insupportable either in their Nature or Rule, and yet the people, more upon Wantonness than for any Want, did take an unbridled Course a­gainst them. Edward the second, by ma­ny of our Historians is reported to be of a Good and Vertuous Nature, and not Unlearned: they impute his defects ra­ther to Fortune than either to Council or Carriage of his Afsairs, the Depositi­on [Page 75] of him was a violent Fury, led by a Wife both Cruel and unchast, and can with no better Countenance of Right be justifyed, than may his lamentable both Indignities and Death it self. Likewise the Deposition of King Richard II, was a tempestuous Rage, neither Led or Restrained by any Rules of Reason or of State — Examin his Actions without a distempered Judgment, and you will not Condemne him to be ex­ceeding either Insufficient or Evil; weigh the Imputations that were objected a­gainst him, and you shall find nothing either of any Truth or of great moment; Hollingshed writeth, That he was most Unthankfully used by his Subjects; for although, through the frailty of his Youth, he demeaned himself more dis­solutely than was agreeable to the Roy­alty of his Estate, yet in no Kings Days were the Commons in greater Wealth, the Nobility more honoured, and the Clergy less wronged; who notwith­standing, in the Evil guided Strength of their will, took head against him, to their own headlong destruction after­wards; partly during the Reign of Hen­ry, his next Successor, whose greatest [Page 76] Atchievements were against his own People, in Executing those who Con­spired with him against King Richard: But more especially in succeeding times, when, upon occasion of this Disorder, more English Blood was spent, than was in all the Foreign Wars together which have been since the Conquest.

Twice hath this Kingdom been mise­rably wasted with Civil War, but nei­ther of them occasioned by the Tyran­ny of any Prince. The Cause of the Baron's Wars is by good Historians at­tributed to the stubbornness of the No­bility, as the Bloody variance of the Houses of York and Lancaster, and the late Rebellion, sprung from the Wan­tonness of the People. These three Un­natural Wars have dishonoured our Na­tion amongst Strangers, so that in the Censures of Kingdoms, the King of Spain is said to be the King of Men, be­cause of his Subjects willing Obedi­ence; the King of France King of Asses, because of their infinite Taxes and Im­positions; but the King of England is said to be the King of Devils, because of his Subjects often Insurrections against, and Depositions of their Princes.

CHAP. III Positive Laws do not infringe the Natural and Fatherly Power of Kings.

(1.) REgal Authority not subject to the Positive Laws, Kings be­fore Laws; the King of Judah and Israel not tyed to Laws. (2.) Of Samuel's De­scription of a King, 1 Sam. 8. (3.) The Power ascribed unto Kings in the New Testament. (4.) Whether Laws were invented to bridle Tyrants. (5.) The Benefit of Laws. (6.) Kings keep the Laws, though not bound by the Laws. (7.) Of the Oathes of Kings. (8.) Of the Benefit of the King's Prerogative over Laws. (9.) The King the Author, the Interpreter, and Corrector, of the Common Laws. (10.) The King, Iudge in all Causes both before the Conquest and since. (11.) The King and his Coun­cil have anciently determined Causes in the Star-Chamber. (12.) Of Parlia­ments. [Page 78] (13.) When the People were first called to Parliament. (14.) The Liberty of Parliaments, not from Na­ture, but from Grace of the Princes. (15.) The King alone makes Laws in Parliament. (16.) Governs both Hou­ses as Head by himself. (17.) By his Council. (18.) By his Iudges.

(1.) HItherto I have endeavour'd to shew the Natural Insti­tution of Regal Authori­ty, and to free it from Subjection to an Arbitrary Election of the People: It is necessary also to enquire whether Humane Laws have a Superio­rity over Princes; because those that maintain the Acquisition of Royal Ju­risdiction from the people, do subject the Exercise of it to Positive Laws. But in this also they Erre, for as Kingly Power is by the Law of God, so it hath no inferiour Law to limit it.

The Father of a Family Governs by no other Law than by his own Will; not by the Laws and Wills of his Sons or Servants. There is no Nation that al­lows Children any Action or Remedy [Page 79] for being unjustly Governed; and yet for all this every Father is bound by the Law of Nature to do his best for the pre­servation of his Family; but much more is a King always tyed by the same Law of Nature to keep this general ground, That the safety of the Kingdom be his Chief Law: He must remember, That the profit of every man in particular, and of all together in general, is not always One and the same; and that the Pub­lick is to be preferred before the Private; And that the force of Laws must not be so great as Natural Equity it self, which cannot fully be comprised in any Laws whatsoever, but is to be left to the Re­ligious Atchievement of those who know how to manage the Affaires of State, and wisely to Ballance the parti­cular profit with the Counterpoize of the Publick, according to the infinite Va­riety of Times, Places, Persons; a proof unanswerable, for the Superiority of Prin­ces above Laws, is this, That there were Kings long before there were any Laws: For a long time the Word of a King was the only Law; and if Practice (as saith Sir Walter Raleigh) declare the greatness of Authority, even the best [Page 80] Kings of Iudah and Israel were not tyed to any Law; but they did what-soever they pleased, in the greatest matters.

(2) The Unlimitted Jurisdiction of Kings is so amply described by Samuel, that it hath given Occasion to some to Imagine, that it was, but either a Plot or Trick of Samuel to keep the Govern­ment himself and Family, by frighting the Israelites with the mischiefs in Mo­narchy, or else a prophetical Description only of the future Ill Government of Saul: But the Vanity of these Conje­ctures are judiciously discovered in that Majestical Discourse of the true Law of free Monarchy; Wherein it is evidently shewed, that the scope of Samuel was to teach the People a dutiful Obedience to their King, even in those things which themselves did esteem Mischievous and Inconvenient; For by telling them what a King would do, he indeed instructs them what a Subject must Suffer; yet not so that it is Right for Kings to do Injury, but it is Right for them to go Unpunished by the People if they do it: So that in this point it is all one, whe­ther Samuel describe a King, or a Tyrant, [Page 81] for Patient Obedience is due to both; no Remedy in the Text against Tyrants, but in Crying and praying unto God in that Day. But howsoever in a Rigorous Construction Samuel's description be ap­plyed to a Tyrant; yet the Words by a Benigne Interpretation may agree with the manners of a Just King; and the Scope and Coherence of the Text doth best imply the more Moderate, or Qualified Sense of the Words; for as Sir W. Raleigh confesses, all those Incon­veniences and Miseries which are reckon­ed by Samuel as belonging to Kingly Go­vernment were not Intollerable, but such as have been born, and are still born, by free Consent of Subjects to­wards their Princes; Nay at this day, and in this Land, many Tenants by their Tenures and Services are tyed to the same Subjection, even to Subordinate and Inferior Lords: To serve the King in his Wars, and to till his ground, is not on­ly agreeable to the Nature of Subjects, but much desired by them; according to their several Births, and Conditions: The like may be said for the Offices of Women-Servants, Confectioners, Cooks, and Bakers, for we cannot think that the [Page 82] King would use their Labours without giving them Wages, since the Text it self mentions a Liberal reward of his Ser­vants.

As for the taking of the Tenth of their Seed, of their Vines, and of their Sheep, it might be a necessary Provision for their Kings Household, and so belong to the Right of Tribute: For whereas is mentioned the taking of the Tenth; it cannot agree well to a Tyrant, who observes no Proportion, in fleecing his People.

Lastly, The taking of their Fields, Vineyards, and Olive-trees, if it be by Force or Fraud, or without just Re­compence, to the Dammage of Private Persons only, it is not to be defended; but if it be upon the publick Charge and General Consent, it might be justi­fyed, as necessary at the first Erecti­on of a Kingdome; For those who will have a King, are bound to allow him Royal maintenance, by providing Re­venues for the CROWN, Since it is both for the Honour, Profit and Safety too of the People to have their King [Page 83] Glorious, Powerful, and abounding in Riches, besides we all know the Lands and Goods of many Subjects may be oft­times Legally taken by the King, either by Forfeitures, Escheat, Attainder, Out­lawry, Confiscation, or the like. Thus we see Samuel's Character of a King may literally well bear a mild Sense, for greater probability there is that Samuel so meant, and the Israelites so understood it; to which this may be added, that Samuel tells the Israelites, this will be the manner of the King that shall Reign over you: And Ye shall cry because of your King which Ye shall have chosen you; that is to say: Thus shall be the common Custom or Fashi­on, or Proceeding of Saul your King; Or as the Vulgar Latine renders it, this shall be the Right or Law of your King; not meaning as some expound it, the Casual Event, or Act of some individu­um vagum, or indefinite King, that might happen one day to Tyrannise over them. So that Saul, and the Constant practice of Saul, doth best agree with the Lite­teral Sense of the Text. Now that Saul was no Tyrant, we may note that the People asked a King, as All Nations had. [Page 84] God answers, and bids Samuel to hear the Voice of the People, in all things which they spake, and appoint them a King. They did not ask a Tyrant, and to give them a Tyrant, when they asked a King, had not been to hear their Voice in all things, but rather when they asked an Egge, to have given them a Scorpion: Unless we will say, that all Nations had Tyrants. Besides, we do not find in all Scripture, that Saul was Punished, or so much as Blamed, for committing any of those Acts which Samuel describes: and if Sa­muel's drift had been only to terrifie the People, he would not have forgotten to foretell Saul's bloody Cruelty, in Murthering 85 innocent Priests, and smiteing with the Edge of the Sword the City of Nob, both Man, Woman, and Child. Again, the Israelites never shrank at these Conditions proposed by Samuel, but accepted of them, as such as all other Nations were bound unto. For their Conclusion is, Nay, but we will have a King over Vs, that We also may be like all the Nations, and that Our King may Iudge us, and go out before us to fight our Battels. Meaning he should earn his Privileges, by doing the work for [Page 85] them, by Judging them, and Fighting for them. Lastly, Whereas the men­tion of the Peoples Crying unto the Lord, argues they should be under some Tyrannical Oppression; we may re­member, that the Peoples Complaints and Cries are not always an Argument of their Living under a Tyrant. No man can say King Solomon was a Tyrant, yet all the Congregation of Israel com­plain'd that Solomon made their Yoke grievous, and therefore their Prayer to Rehoboam is, Make thou the grievous Ser­vice of thy Father Solomon, and his hea­vy Yoke which he put upon us, lighter, and we will serve thee. To conclude, it is true, Saul lost his Kingdom, but not for being too Cruel or Tyrannical to his Subjects, but by being too Merciful to his Enemies; his sparing Agag when he should have slain him, was the Cause why the Kingdom was torn from him.

(3.) If any desire the direction of the New Testament, he may find our Savi­our limiting and distinguishing Royal Power, By giving to Caesar those things that were Caesar's, and to God those things [Page 86] that were God's. Obediendum est in qui­bus mandatum Dei non impeditur. We must obey where the Commandment of God is not hindred; there is no o­ther Law but Gods Law to hinder our Obedience. It was the Answer of a Chri­stian to the Emperour, We only worship God, in other things we gladly serve you. And it seems Tertullian thought what­foever was not God's was the Emperours, when he saith, Bene opposuit Caesari pecu­niam, te ipsum Deo, alioqui quid erit Dei, si omnia Caesaris. Our Saviour hath well apportioned our Money for Caesar, and our selves for God, for otherwise what shall God's share be, if all be Cae­sar's. The Fathers mention no Reserva­tion of any Power to the Laws of the Land, or to the People. S. Ambrose, in his Apologie for David, expresly saith, He was a King, and therefore bound to no Laws, because Kings are free from the Bonds of any Fault. S. Augustine also resolves, Imperator non est subjectus Legi­bus, qui habet in potestate alias Leges ferre. The Emperour is not subject to Laws, who hath Power to make other Laws. For indeed, it is the Rule of Solomon, that We must keep the King's Commandment, [Page 87] and not to say, What dost Thou? because Where the Word of a King is, there is Power, and All that he pleaseth, he will do.

If any mislike this Divinity in Eng­land, let him but hearken to Bracton, Chief Justice in Henry the Third's days, which was since the Institution of Par­liaments, his words are, speaking of the King, Omnes sub Eo, & Ipse sub nullo, nisi tantum sub Deo, &c. All are under him, and he under none, but God on­ly: If he offend, since no Writ can go against him, their Remedy is by Peti­tioning him to amend his Fault, which if he shall not do, it will be Punish­ment sufficient for him to expect God as a Revenger: Let none presume to Search into his Deeds, much less to Oppose them.

When the Iews asked our Blessed Sa­viour, whether they should pay Tri­bute? he did not first demand what the Law of the Land was, or whether there was any Statute against it, nor enquired whether the Tribute were given by Consent of the people, nor advised them to stay their payment till [Page 88] they should grant it; he did no more but look upon the Superscription, and concluded, This Image you say is Caesar's, therefore give it to Caesar. Nor must it here be said, that Christ taught this Les­son only to the conquered Iews, for in this he gave direction for all Nations, who are bound as much in Obedience to their Lawful Kings, as to any Con­querour or Vsurper whatsoever.

Whereas being subject to the Higher Powers, some have strained these words to signifie the Laws of the Land, or else to mean the Highest Power, as well Ari­stocratical and Democratical, as Regal: It seems S. Paul looked for such Inter­pretation, and therefore thought fit to be his own Expositor, and to let it be known, that by Power he understood a Monarch that carryed a Sword: Wilt thou not be afraid of the Power? that is, the Ruler that carryeth the Sword, for he is the Minister of God to thee — for he beareth not the Sword in vain. It is not the Law that is the Minister of God, or that carries the Sword, but the Ru­ler or Magistrate; so they that say the Law governs the Kingdom, may as well [Page 89] say that the Carpenters Rule builds an House, and not the Carpenter; for the Law is but the Rule or Instrument of the Ruler. And S. Paul concludes; for this cause pay you tribute also, for they are Gods Ministers attending continu­ally upon this very thing. Render there­fore Tribute to whom Tribute is due, Custom to whom Custom. He doth not say, give as a gift to Gods Minister. But [...], Render or Restore Tribute, as a due. Also St. Peter doth most clearly ex­pound this place of St. Paul, where he saith, Submit your selves to every Or­dinance of Man, for the Lords sake, whe­ther it be to the King as Supreme, or unto Governours, as unto them that are sent by him. Here the very self same Word (Supreme, or [...]) which St. Paul coupleth with Power, St. Peter conjoin­eth with the King, [...], thereby to maniest that King and Pow­er are both one. Also St. Peter expounds his own Words of Humane Ordinance, to be the King, who is the Lex Loquens, a Speaking Law; he cannot mean that Kings themselves are an human Or­dinance, since St. Paul calls the Supreme Power, The Ordinance of God; and [Page 90] the Wisdom of God saith, By me Kings Reign: But his meaning must be, that the Laws of Kings are Human Ordi­nances. Next, the Governours that are sent by him; that is by the King, not by God, as some corruptly would wrest the Text, to justifie Popular Governours as authorized by God, whereas in Gramatical Construction [Him] the Relative must be referred to the next Antecedent, which is King; Besides, the Antithesis between Supreme and Sent, proves plainly that the Governours were sent by Kings; for if the Gover­nours were sent by God, and the King be an Humane Ordinance, then it fol­lows, that the Governours were Su­preme, and not the King; Or if it be said, that both King and Governours are sent by God, then they are both equal, and so neither of them Supreme. There­fore St. Peter's meaning is in short, obey the Laws of the King, or of his Mini­sters. By which it is evident, that neither St. Peter, nor S. Paul, intended other-Form of Government than only Mo­narchical, much less any Subjecton of Princes to Humane Laws.

[Page 91]That familiar distinction of the Schoolmen, whereby they Subject Kings to the Directive, but not to the Coactive Power of Laws, 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 or Pun­ishment to Obedience; whereas the Di­rection of the Law, is but like the ad­vice and direction which the Kings Council gives the King, which no man says is a Law to the King.

(4) There want not those who Be­lieve that the first invention of Laws was to Bridle and moderate the over­great Power of Kings; but the truth is, the Original of Laws was for the keep­ing of the Multitude in Order: Popular Estates could not Subsist at all without Laws; whereas Kingdoms were Govern'd many Ages without them. The People of Athens, as soon as they gave over Kings, were forced to give Power to Draco first, then to Solon, to make them [Page 92] Laws, not to bridle Kings, but themselves; and though many of their Laws were very Severe and Bloody, yet for the Re­verence they bare to their Law-makers they willingly submitted to them. Nor did the People give any Limited Power to Solon, but an Absolute Jurisdiction, at his pleasure to Abrogate and Confirm what he thought fit; the People never challenging any such Power to them­selves: So the People of Rome gave to the Ten Men, who were to chuse and correct their Laws for the Twelve Ta­bles, an Absolute Power, without any Appeal to the people.

(5.) The reason why Laws have been also made by Kings, was this, when Kings were either busyed with Wars, or distracted with Publick Cares, so that e­very private man could not have accesse to their persons, to learn their Wills and Pleasure; then of necessity were Laws invented, that so every particular Sub­ject might find his Prince's Pleasure de­cyphered unto him in the Tables of his Laws, that so there might be no need to resort to the King; but either for the Interpretation or Mitigation of Ob­scure [Page 93] or Rigorous Laws, or else in new Cases, for a Supplement where the Law was Defective. By this means both King and People were in many things eased: First, The King by giving Laws doth free himself of great and intolera­ble Troubles, as Moses did himself by chusing Elders. Secondly, The peo­ple have the Law as a Familiar Admoni­sher and Interpreter of the King's plea­sure, which being published throughout the Kingdom, doth represent the Pre­sence and Majesty of the King: Also the Judges and Magistrates, (whose help in giving Judgment in many Causes Kings have need to use) are restrained by the Common Rules of the Law from using their own Liberty to the injury of o­thers, since they are to judge according to the Laws, and not follow their own Opinions.

(6.) Now albeit Kings, who make the Laws, be (as King Iames teacheth us) a­bove the Laws; yet will they Rule their Subjects by the Law; and a King, governing in a setled Kingdom, leaves to be a King, and degenerates into a Tyrant, so soon as he seems to Rule according to [Page 94] his Laws; yet where he sees the Laws Rigorous or Doubtful, he may miti­gate and interpret. General Laws made in Parliament, may, upon known Re­spects to the King, by his Authority be Mitigated or Suspended, upon Causes only known to him. And although a King do frame all his Actions to be 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 Com­mon-Weale doth naturally bind him; for in such sort only Positive Laws may be said to bind the King, not by being Positive, but as they are naturally the Best or Only Means for the Preservati­on of the Common-Wealth. By this means are all Kings, even Tyrants and Conquerours, bound to preserve the Lands, Goods, Liberties, and Lives of all their Subjects, not by any Munici­pial Law of the Land, so much as the Natural Law of a Father, which binds them to ratifie the Acts of their Fore-Fathers and Predecessors, in things ne­cessary for the Publick Good of their Subjects.

[Page 95](7.) Others there be that affirm, That although Laws of themselves do not bind Kings, yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms. How far this is true, let us but examine the Oath of the Kings of England at their Coronation; the words whereof are these, Art thou pleased to cause to be administred in all thy Iudgments indifferent and upright Iustice, and to use Discretion with Mercy and Ve­rity? Art thou pleased that our upright Laws and Customs be observed, and dost thou promise that those shall be protected and maintained by thee? These two are the Articles of the King's Oath, which concern the Laity or Subjects in Gene­ral; to which the King answers affir­matively. Being first demanded by the Arch-bishop of Canterbury, Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times, granted from God, by just and devout Kings, unto the Eng­lish Nation, by Oath unto the said People. Especially the Laws, Liberties, and Cu­stoms granted unto the Clergy and Laity by the famous King Edward. We may observe, in these words of the Articles [Page 96] of the Oath, that the King is required to observe not all the Laws, but only the Upright, and that with Discretion and Mercy. The Word Upright can­not mean all Laws, because in the Oath of Richard the Second, I find Evil and Unjust Laws mentioned, which the King swears to abolish; and in the Old Abridgment of Statutes, set forth in Hen­ry the Eighth's days, the King is to swear wholly to put out Evil Laws; which he cannot do, if he be bound to all Laws. Now what Laws are Upright and what Evil, who shall judge but the King, since he swears to administer Upright Justice with Discretion and Mercy (or as Bracton hath it) aequitatem praecipiat, & misericordiam. So that in effect, the King doth swear to keep no Laws, but such as in His Iudgment are Upright, and those not literally always, but accord­ing to Equity of his Conscience, join'd with Mercy, which is properly the Of­fice of a Chancellour rather than of a Judge; and if a King did strictly swear to observe all the Laws, he could not without Perjury give his Consent to the Repealing or Abrogating of any Sta­tute by Act of Parliament, which [Page 97] would be very mischievable to the State.

But let it be supposed for truth, that Kings do swear to observe all the Laws of their Kingdoms, yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs. Now if a private person make a Con­tract, either with Oath or without Oath, he is no further bound than the Equity and Justice of the Contract ties him; for a man may have Relief against an unreasonable and unjust promise, if either Deceit, or Errour, or Force, or Fear induced him thereunto: Or if it be hurtful or grievous in the performance. Since the Laws in many Cases give the King a Prerogative above Common Per­sons, I see no Reason why he should be denyed the Priviledge which the mean­est of his Subjects doth enjoy.

Here is a fit place to examine a Que­stion which some have moved, Whe­ther it be a sin for a Subject to disobey the King, if he Command any thing con­trary to his Laws? For satisfaction in this [Page 98] point, we must resolve, that not only in Human Laws, but even in Divine, a thing may be commanded contrary to Law, and yet Obedience to such a Com­mand is necessary. The sanctifying of the Sabbath is a Divine Law; yet if a Master Command his Servant not to go to Church upon a Sabbath-day, the Best Divines teach us, That the Servant must obey this Command, though it may be Sinful and Unlawful in the Master; because the Servant hath no Authority or Liberty to Examine and Judge whe­ther his Master Sin or no in so Com­manding; for there may be a just Cause for a Master to keep his Servant from Church, as appears Luke 14. 5. yet it is not fit to tye the Master to acquaint his Servant with his Secret Counsels, or pre­sent Necessity: And in such Cases, the Servants not going to Church, becomes the Sin of the Master, and not of the Servant. The like may be said of the King's Commanding a man to serve him in the Wars, he may not Examine whe­ther the War be Just or Unjust, but must Obey, since he hath no Commission to Judge of the Titles of Kingdoms, or Causes of War; nor hath any Subject [Page 99] Power to Condemn his King for breach of his own Laws.

(8.) Many will be ready to say, It is a Slavish and Dangerous Condition to be subject to the Will of any One Man, who is not subject to the Laws. But such men consider not, 1. That the Pre­rogative of a King is to be above all Laws, for the good only of them that are under the Laws, and to defend the Peoples Li­berties, as His Majesty graciously affirm­ed in His Speech after His last Answer to the Petition of Right: Howsoever some are afraid of the Name of Prerogative, yet they may assure themselves the Case of Subjects would be desperately mise­rable without it. The Court of Chancery it self is but a Branch of the Kings Pre­rogative, to Relieve men against the in­exorable rigour of the Law, which with­out it is no better than a Tyrant, since Summum Ius, is Summa Injuria. General Pardons, at the Coronation and in Parlia­ments; are but the Bounty of the Prero­gative. 2. There can be no Laws with­out a Supreme Power to command or make them. In all Aristocraties the No­bles are above the Laws, and in all Demo­craties [Page 100] the People. By the like Reason, in a Monarchy the King must of neces­sity be above the Laws; there can be no Soveraign Majesty in him that is un­der them; that which giveth the very Being to a King is the Power to give Laws; without this Power He is but an Equivocal King. It skills not which way Kings come by their Power, whether by Election, Donation, Succession, or by a­ny other means; for it is still the manner of the Government by Supreme Pow­er that makes them properly Kings, and not the means of obtaining their Crowns. Neither doth the Diversity of Laws, nor contrary Customs, whereby each Kingdom differs from another, make the Forms of Common-Weal different, unless the Power of making Laws be in several Subjects.

For the Confirmation of this point, Aristotle saith, That a perfect Kingdom is that wherein the King rules all things according to his Own Will, for he that is called a King according to the Law, makes no kind of Kingdom at all. This it seems also the Romans well understood to be most necessary in a Monarchy; for [Page 101] though they were a People most greedy of Liberty, yet the Senate did free Augu­stus from all Necessity of Laws, that he might be free of his own Authority, and of absolute Power over himself and over the Laws, to do what he pleased, and leave undone what he list, and this Decree was made while Augustus was yet absent. Accordingly we find, that Vlpian the great Lawyer delivers it for a Rule of the Civil Law; Princeps, Le­gibus solutus est. The Prince is not bound by the Laws.

(9) If the Nature of Laws be advi­sedly weighed, the Necessity of the Prin­ces being above them may more mani­fest it self; we all know that a Law in General is the command of a Superior Power. Laws are divided (as Bellermine divides the Word of God) into written and unwritten, not for that it is not Writ­ten at all, but because it was not Writ­ten by the first Devisers or Makers of it. The Common Law (as the Lord Chan­cellor Egerton teacheth us) is the Com­mon Custom of the Realm. Now concern­ing Customs, this must be considered, that for every Custom there was a time when it was no Custom; and the first [Page 102] President we now have, had no Presi­dent when it began; when every Cu­stom began, there was something else than Custom that made it lawful, or else the beginning of all Customs were unlawful. Customs at first became Law­ful only by some Superiour, which did either Command or Consent unto their beginning. And the first Power which we find (as it is confessed by all men) is the Kingly Power, which was both in this and in all other Nations of the World, long before any Laws, or any other kind of Government was thought of; from whence we must necessarily infer, that the Common Law it self, or Com­mon Customs of this Land, were Ori­ginally the Laws and Commands of Kings at first unwritten.

Nor must we think the Common Customs (which are the Principles of the Common Law, and are but few) to be such, or so many, as are able to give special Rules to determine every parti­cular Cause. Diversity of Cases are in­finite, and impossible to be regulated by any Law; and therefore we find, even in the Divine Laws which are delivered [Page 103] by Moses, there be only certain Princi­pal Laws, which did not determine out only direct the High-priest or. Magi­strate, whose Judgment in special Cases did determine, what the General Law intended. It is so with the Common Law, for when there is no perfect Rule, Judges do resort to those Principles, or Common Law Axiomes, whereupon former Judgments, in Cases some-what like, have been delivered by former Judges, who all receive Authority from the King, in his Right and Name to give Sentence according to the Rules and Presidents of Antient Times: And where Presidents have failed, the Judg­es have resorted to the General Law of Reason, and accordingly given Judg­ment, without any Common Law to di­rect them. Nay, many times, where there have been Presidents to direct, they, upon better Reason only, have Changed the Law, both in Causes Crimi­nal and Civil, and have not insisted so much on the Examples of former Judg­es, as examined and corrected their Reasons; thence it is that so no Laws are now obsolete and out of use, and the Practice quite contrary to what it was in [Page 104] Former Times, as the Lord Chancel­lor Egerton proves, by several Instan­ces.

Nor is this spoken to Derogate from the Common Law, for the Case standeth so with the Laws of all Nations, although some of them have their Laws and Prin­ciples Written and Established: for wit­nesse to this, we have Aristotle his Testi­mony in his Ethiques, and in several places in his Politiques; I will cite some of them. Every Law (saith he) is in the General, but of some things there can be no General Law—when therefore the Law sqeaks in General, and something falls out after besides the General Rule: Then it is fit that what the Law-maker hath omitted, or where he hath Erred by speaking Gene­rally, it should be corrected or supplyed, as if the Law-maker himself were Present to Ordain it. The Governour, whether he be one Man, or more, ought to be Lord o­ver all those things whereof it was impossi­ble the Law should exactly speak, because it is not easie to comprehend all things un­der General Rules—whatsoever the Law cannot Determine, it leaves to the Gover­nours to give Iudgment therein, and per­mits [Page 105] them to rectifie whatsoever upon Try­al they find to be better than the Written Laws.

Besides, all Laws are of themselves Dumb, and some or other must be trust­ed with the Application of them to Par­ticulars, by examining all Circumstances, to pronounce when they are broken, or by whom. This work of right Ap­plication of Laws is not a thing easie or obvious for ordinary capacities; but re­quires profound Abilities of Nature, for the beating out of the truth, witness the Diversity, and sometimes the contrarie­ty of Opinions of the learned Judges, in some difficult Points.

(10) Since this is the common Con­dition of Laws, it is also most reasona­ble that the Law-maker should be trust­ed with the Application or Interpretati­on of the Laws; and for this Cause an­ciently the Kings of this Land have sit­ten personally in Courts of Judica­ture, and are still Representatively present in all Courts; the Judges are but substituted, and called the Kings Justices, and their Power ceaseth when the King is in place. To this purpose, Bracton, that learned Chief Justice in the [Page 106] Reign of Henry the Third, saith in ex­press terms; In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected; since it is his part to interpret, who made the Law; for as he saith in another place, Rex, & non Alius debet Iudicare, si So­lus ad id sufficere possit, &c. The King, and no body else, ought to give Iudgment, if He were able, since by vertue of his Oath he is Bound to it; therefore the King ought to exercise Power as the Vicar or Minister of God, but if our Lord the King be not a­ble to determine every cause, to ease part of his Pains by distributing the Burthen to more Persons, he ought to chuse Wise men fearing God, &c, and make Iustices of them: Much to the same purpose are the words of Edward the First, in the be­ginning of his Book of Laws, written by his appointment by Iohn Briton, Bishop of Hereford. We will (saith he) that our own Iurisdiction be above all the Iurisdi­ctions of our Realm, so as in all manner of Felonies, Trespasses, Contracts, and in all other Actions, Personal, or Real, We have power to yield such Iudgments as do appertain without other Process, where­soever we know the right truth as Iudges. [Page 107] Neither may this be taken to be meant of an imaginary Presence of the King's Per­son in His Courts, because he doth im­mediately after in the same place seve­rally set forth by themselves the Juris­dictions of his Ordinary Courts; but must necessarily be understood of a Ju­risdiction remaining in the King's Roy­al Person. And that this then was no New-made Law, or first brought in by the Norman Conquests, appears by a Saxon Law made by King Edgar, in these words, as I find them in Mr. Lambert, Nemo in lite Regem appellato, nisi quidem domi Iustitiam consequi, aut impetrare non poterit, sin summo jure domi urgeatur, ad Regem, ut is Onus aliqua ex parte Alle­vet, provocato. Let no man in Suit ap­peal to the King, unless he may not get Right at home; but if the Right be too heavy for him, then let him go to the King to have it eased.

As the Judicial Power of Kings was exercised before the Conquest, so in those setled times after the Conquest, where­in Parliaments were much in use, there was a High-Court following the King, which was the place of Soveraign Ju­stice, [Page 108] both for matter of Law and Con­science, as may appear by a Parliament in Edward the First's time, taking Or­der, That the Chancellour and the Iusti­ces of the Bench should follow the King, to the end that He might have always at hand able men for His Direction in Suits that came before Him: And this was af­ter the time that the Court of Common-Pleas was made Stationary, which is an Evidence that the King reserved a Sove­raign Power, by which he did supply the Want, or correct the Rigour of the Common Law; because the Positive Law, being grounded upon that which happens for the most part, cannot fore­see every particular which Time and Ex­perience brings forth.

(12.) Therefore though the Common Law be generally Good and Just, yet in some special Case it may need Correcti­on, by reason of some considerable Cir­cumstance falling out, which at the time of the Law-making was not thought of. Also sundry things do fall out, both in War and Peace, that require extraor­dinary help, and cannot wait for the Usu­al Care of Common Law, the which is [Page 109] not performed, but altogether after one sort, and that not without delay of help and expence of time; so that although all Causes are, and ought to be referred to the Ordinary Processe of common Law, yet rare matters from time to time do grow up meet, for just Reasons, to be re­ferred to the aid of the absolute Autho­rity of the Prince; and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes, and not for restraint of the Absolute Authority, serving only in a few rare and singular Cases, for though the Subjects were put to great dammage by False Accusations and Malitious Suggestions made to the King and His Council, especially during the time of King Edward the Third, whilst he was absent in the Wars in France, in­somuch as in His Reign divers Statutes were made, That provided none should be put to answer before the King and His Council without due Processe; yet it is apparent the necessity of such Pro­ceedings was so great, that both before Edward the Third's days, and in his time, and after his Death, several Statutes were made, to help and order the Proceedings [Page 101] of the King and his Council. As the Parliament in 28. Edw. 1. Cap. 5. did pro­vide, That the Chancellour and Iustices of the King's Bench should follow the King; that so he might have near unto him some that be learned in the Laws, which be able to order all such matters as shall come unto the Court, at all times when need shall re­quire. By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained, in case the Suggestion to the King proved untrue. Then 38. Edw. 3. Cap. 9. takes away Ta­liation, and appoints Imprisonment till the King and Party grieved be satisfied. In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expen­ces are awarded in such Cases. In all these Statutes it is necessarily implyed, that Complaints upon just Causes might be moved before the King and His Coun­cil.

At a Parliament at Glocester, 2. Ric. 2. when the Commons made Petition, That none might be forced by Writ out of Chan­cery, or by Privy Seal, to appear before the King and His Council, to answer touch­ing Free-hold. The King's Answer was, He thought it not reasonable that He should [Page 111] be constrained to send for His Leiges upon Causes reasonable: And albeit He did not purpose that such as were sent for should answer [Finalment] peremptorily touching their Free-hold, but should be re­manded for Tryal thereof, as Law required: Provided always, (saith he) that at the Suit of the Party, where the King and His Council shall be credibly informed, that because of Maintenance, Oppression, or other Out-rages, the Common Law cannot have duly her Course, in such case the Council for the Party.

Also in the 13th year of his Reign, when the Commons did pray, that upon pain of Forfeiture, the Chancellour or Council of the King, should not after the end of the Parliament make any Ordi­nance against the Common Law; the King answered, Let it be used as it hath been used before this time, so as the Rega­lity of the King be saved, for the King will save His Regalities as His Progeni­tors have done.

Again, in the 4th year of Henry the Fourth, when the Commons complained against Subpoena's, and other Writs, ground­ed [Page 112] upon false Suggestions; the King an­swered, That He would give in Charge to His Officers, that they should abstain more than before time they had, to send for His Subjects in that manner. But yet (saith He) it is not Our Intention, that Our Of­ficers shall so abstain, that they may not send for Our Subjects in Matters and Cau­ses necessary, as it hath been used in the time of Our Good Progenitors.

Likewise when for the same Cause Complaint was made by the Commons; Anno 3. Hen. 5. the King's Answer was, Le Roy s'advisera, The King will be ad­vised; which amounts to a Denyal for the present, by a Phrase peculiar for the Kings denying to pass any Bill that hath passed the Lords and Commons.

These Complaints of the Commons, and the Answers of the King, discover, That such moderation should be used, that the course of the common Law be ordinarily maintained, lest Subjects be convented before the King and His Council without just cause, that the Proceedings of the Council-Table be not upon every slight Suggestion, nor [Page 113] to determine finally concerning Free hold of Inheritance. And yet that upon cause reasonable, upon credible Infor­mation, in matters of weight, the King's Regallity or Prerogative in sending for His Subjects be maintain'd, as of Right it ought, and in former times hath been constantly used.

King Edward the First, finding that Bogo de Clare was discharged of an Ac­cusation brought against him in Parlia­ment, for that some formal Imperfections were found in the Complaint, command­ed him nevertheless to appear before Him and His Council, ad faciendum, & recipiendum quod per Regem & ejus Conci­lium fuerit faciendum; and so proceeded to an Examination of the whole Cause. 8. Edw. 1.

Edward the Third, In the Star-Cham­ber (which was the Ancient Council-Cham­ber at Westminster) upon the Complaint of Elizabeth Audley, commanded Iames Audley to appear before Him and His Council, and determin'd a Controversie between them, touching Lands contain'd in the Covenants of her Joynture. Rot. Claus. de an. 41. Ed. 3.

[Page 114] Henry the Fifth, in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence, in the Isle of Thenet, in Kent, took order for the Sequestring the Profits till the Right were tryed, as well for avoiding the breach of the Peace, as for prevention of waste and spoil. Rot. Patin. Anno 6. Hen. 5.

Henry the Sixth commanded the Ju­stices of the Bench to stay the Arraign­ment of one Verney of London, till they had other commandment from Him and His Council, because Verney, being indebt­ed to the King and others, practised to be Indicted of Felony, wherein he might have his Clergy, and make his Purgation, of intent to defraud his Creditors. 34. Hen. 6. Rot. 37. in Banco Regis.

Edward the Fourth and His Council, in the Star-Chamber, heard the Cause of the Master and Poor Brethren of S. Leonards in York, complaining, that Sir Hugh Hast­ings, and others, withdrew from them a great part of their living, which con­sisted chiefly upon the having of a [Page 115] Thrave of Corn of every Plough-Land within the Counties of York, Westmer­land, Cumberland, and Lancashire. Rot. Paten. de Anno 8. Ed. 4. Part 3. Memb. 14.

Henry the Seventh and His Council, in the Star-Chamber, decreed, That Margery and Florence Becket should Sue no fur­ther in their Cause against Alice Radley, widow, for Lands in Wolwich and Plum­stead in Kent; for as much as the Matter had been heard first before the Council of King Ed. 4. after that before the Presi­dent of the Requests of that King, Hen. 7. and then lastly, before the Council of the said King. 1. Hen. 7.

What is hitherto affirmed of the De­pendency and Subjection of the Com­mon Law to the Soveraign Prince, the same may be said as well of all Statute Laws; for the King is the sole immedi­ate Author, Corrector, and Moderator of them also; so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power which Kings have over their People, by right of Father-hood, but rather are an Argument to strengthen the truth of [Page 116] it; for Evidence whereof, we may in some points consider the nature of Par­liaments, because in them only all Sta­tutes are made.

(12.) Though the Name of Parliament (as Mr. Cambden saith) be of no great Antiquity, but brought in out of France, yet our Ancestors, the English Saxons, had a Meeting, which they called, The Assembly of the Wise; termed in Latine, Conventum Magnatum, or, Praesentia Re­gis, Procerum (que) Prelaterum (que) collectorum. The Meeting of the Nobility, or the Presence of the King, Prelates, and Peers Assembled; or in General, Magnum Concilium, or Commune Concilium; and many of our Kings in elder times made use of such great Assemblies for to Con­sult of important Affaires of State; all which Meetings, in a General sense, may be termed Parliaments.

Great are the Advantages which both the King and People may receive by a well-ordered Parliament; there is no­thing more expresseth the Majesty and Supreme Power of a King, than such an Assembly, wherein all his People ac­knowledge [Page 117] him for Soveraign Lord, and make all their Addresses to him by hum­ble Petition and Supplication; and by their Consent and Approbation do strengthen all the Laws, which the King, at their Request and by their Advice and Ministry, shall ordain. Thus they facilitate the Government of the King, by making the Laws unquestionable, ei­ther to the Subordinate Magistrates, or refractory Multitude. The benefit which accrews to the Subject by Parliaments, is. That by their Prayers and Petitions Kings are drawn many times to redress their Just grievances, and are overcome by their importunity to grant many things which otherwise they would not yield unto; for the Voice of a Multi­tude is easilier heard. Many Vexations of the People are without the knowledge of the King; who in Parliament seeth and heareth his People himself; whereas at other times he commonly useth the Eyes and Ears of other men.

Against the Antiquity of Parliaments we need not dispute, since the more an­cient they be, the more they make for the Honour of Monarchy; yet there be [Page 118] certain Circumstances touching the Forms of Parliaments, which are fit to be considered.

First, we are to rememember, that un­til about the time of the Conquest, there could be no Parliaments assembled of the General States of the whole Kingdom of England, because till those days we can­not learn it was entirely united into one Kingdom; but it was either divided in­to several Kingdoms, or Governed by se­veral Laws. When Iulius Caesar landed he found 4 Kings in Kent; and the British Names of Dammonii, Durotriges, Belgae, Attrebatii, Trinobantes, Iceni, Silures, and the rest, are plentiful Testimonies of the several Kingdoms of Brittains, when the Romans left us. The Saxons divided us into 7 Kingdoms: when these Saxons were united all into a Monarchy, they had always the Danes their Compani­ons, or their Masters in the Empire, till Edward the Confessors Days, since whose time the Kingdom of England hath con­tinued United, as now it doth: But for a Thousand years before we cannot find it was entirely setled, during the Time of any one Kings Reign. As under the [Page 119] Mercian Law: The West Saxons were confined to the Saxon Laws; Essex, Norfolk, Suffolk, and some other Places, were vexed with Danish Laws; The Northumbrians also had their Laws a­part. And until Edward the Confessors Reign, who was next but one before the Conquerour, the Laws of the Kingdom were so several and Uncertain, that he was forced to Cull a few of the most in­different and best of them, which were from him called St. Edwards Laws: Yet some say that Eadgar made those Laws, and that the Confessor did but restore and mend them. Alfred also gathered out of Mulmutius laws, such as he translated into the Saxon Tongue. Thus during the time of the Saxons, the Laws were so variable, that there is little or no likelihood to find any constant Form of Parliaments of the whole Kingdom.

(13) A second Point considerable is, whether in such Parliaments, as was in the Saxon's times, the Nobility and Clergy only were of those Assem­blies, or whether the Commons were also called; some are of Opinion, that though none of the Saxon Laws do [Page 120] mention the Commons, yet it may be gathered by the word Wisemen, the Commons are intended to be of those Assemblies, and they bring (as they conceive) probable arguments to prove it, from the Antiquity of some Bur­roughs that do yet send Burgesses, and from the Proscription of those in Anti­ent Demesne, not to send Burgesses to Parliament. If it be true, that the West-Saxons had a Custom to assemble Burgesses out of some of their Towns, yet it may be doubted, whether other Kingdoms had the same usage; but sure it is, that during the Heptarchy, the People could not Elect any Knights of the Shire, because England was not then divided into Shires.

On the contrary, there be of our Histo­rians who do affirm, that Henry the First caused the Commons first to be Assem­bled by Knights and Burgesses of their own Appointment, for before his Time only certain of the Nobility and Pre­lates of the Realm were called to Con­sultation about the most Important Af­fairs of State. If this Assertion be true, it seems a meer matter of Grace of this [Page 121] King, and proves not any Natural Right of the People, Originally to be admitted to chuse their Knights and Burgesses of Parliament, though it had been more for the Honour of Parliaments, if a King, whose Title to the Crown had been better, had been Author of the Form of it; because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and El­der Brother, by taking the Oaths of the Nobility in Parliament; and getting the Crown to be setled upon his Chil­dren. And as the King made use of the People, so they, by Colour of Parliament, served their own turns; for after the E­stablishment of Parliaments by strong hand, and by the Sword, they drew from him the Great Charter, which he grant­ed the rather to flatter the Nobility and People, as Sir Walter Raleigh in his Dia­logue of Parliaments doth affirm, in these words. The great Charter was not Origi­nally granted Legally and Freely; for Hen­ry the First did but Vsurp the Kingdom, and therefore, the better to assure himself against Robert his Elder Brother, he flat­tered the Nobility and People with their Charters; yea, King John, that Confirmed [Page 122] them, had the like respect, for Arthur Duke of Brittain was the undoubted Heir of the Crown, upon whom King John Vsurped, and so to conclude, these Charters had their O­riginal from Kings de facto, but not de jure—the Great Charter had first an ob­scure Birth by Vsurpation, and was Second­ly fostered and shewed to the World by Re­bellion.

(15.) A third consideration must be, that in the former Parliaments, institut­ed and continued since King Henry the First's time, is not to be found the Usage of any Natural Liberty of the People; for all those Liberties that are claimed in Parliament are the liberties of Grace from the King, and not the Liberties of Nature to the People; for if the liberty were Natural, it would give Power to the Multitude to assemble themselves When and Where they please, to bestow Soveraignty, and by Pactions to limit and direct the Exercise of it. Whereas, the Liberties of Favour and Grace, which are Claimed in Parliaments, are restrained both for Time, Place, Persons, and other Circumstances, to the Sole Pleasure of the King. The People can­not [Page 123] Assemble themselves, but the King, by his Writs, calls them to what place he pleases; and then again Scatters them with his Breath at an instant, without a­ny other Cause shewed than his Will. Neither is the whole Summoned, but only so many as the Kings Writs ap­point. The prudent King Edward the First, summoned always those Barons of ancient Families, that were most wise, to his Parliament, but omited their Sons after their Death, if they were not an­swerable to their Parents in Understand­ing. Nor have the whole people Voi­ces in the Election of Knights of the Shire or Burgesses, but only Free-hold­ers in the Counties, and Freemen in the Cities and Burroughs; yet in the City of Westminster all the House-holders, though they be neither Free-men nor Free-holders, have Voices in their Ele­ction of Burgesses. Also during the time of Parliament, those priviledges of the House of Commons, of freedom of Speech, Power to punish their own Members, to examine the Proceedings and Demeanour of Courts of Justice and Officers, to have access to the King's Person, and the like, are not due by a­ny [Page 124] Natural Right, but are derived from the Bounty or Indulgence of the King, as appears by a solemn Recognition of the House; for at the opening of the Parliament, when the Speaker is pre­sented to the King, he, in the behalf and name of the whole House of Commons, humbly craves of His Majesty, That He would be pleased to grant them their Accustomed Liberties of freedom of Speech, of access to his Person, and the rest. These Priviledges are granted with a Condition implyed, That they keep themselves within the Bounds and Li­mits of Loyalty and Obedience; for else why do the House of Commons in­flict punishment themselves upon their own Members for transgressing in some of these points; and the King, as Head, hath many times punished the Members for the like Offences. The Power which the King giveth, in all his Courts, to his Judges or others to punish, doth not ex­clude Him from doing the like, by way of Prevention, Concurrence, or Evocati­on, even in the same point which he hath given in charge by a delegated Power; for they who give Authority by Com­mission, do always retain more than [Page 125] they grant: Neither of the two Hou­ses claim an Infallibility of not Erring, no more than a General Council can. It is not impossible but that the greatest may be in Fault, or at least Interested or Engaged in the Delinquency of one par­ticular Member. In such Cases it is most proper for the Head to correct, and not to expect the Consent of the Members, or for the Parties peccant to be their own Judges. Nor is it needful to confine the King, in such Cases, within the Circle of any one Court of Justice, who is Su­preme Judge in all Courts. And in rare and new Cases rare and new Remedies must be sought out; for it is a Rule of the Common Law, In novo Casu, novum Remedium est apponendum: and the Sta­tute of Westminst. 2. cap. 24. giveth Power, even to the Clarks of the Chan­cery, to make New Forms of Writs in New Cases, lest any man that came to the King's Court of Chancery for help, should be sent away without Remedy: A President cannot be found in every Case; and of things that happen seldom, and are not common, there cannot be a Common Custom. Though Crimes Exorbi­tant do pose the King and Council in find­ing [Page 126] a President for a Condigne Punish­ment, yet they must not therefore pass unpunished.

I have not heard that the people, by whose Voices the Knights and Burgesses are chosen, did ever call to an account those whom they had Elected; they nei­ther give them Instructions or Directi­ons what to say, or what to do in Parlia­ment, therefore they cannot punish them when they come home for doing amiss: If the people had any such power over their Burgesses, then we might call it, The Natural Liberty of the people, with a mischief. But they are so far from punishing, that they may be punish­ed themselves for intermedling with Parliamentary Business; they must on­ly chuse, and trust those whom they chuse to do what they list; and that is as much liberty as many of us deserve, for our irregular Elections of Burgesses.

(15) A fourth point to be consider'd, is, that in Parliament all Statutes or Laws are made properly by the King a­lone, at the Rogation of the people, as His Majesty King Iames, of happy me­mory, [Page 127] affirms in His true Law of free Mo­narchy; and as Hooker teacheth us, That Laws do not take their constraining force from the Quality of such as devise them, but from the Power that doth give them the Strength of Laws: Le Roy le Veult, the King will have it so, is the Interpretive Phrase pronounced at the King's passing of every Act of Parliament: And it was the ancient Custom for a long time, till the days of Henry the Fifth, that the Kings, when any Bill was brought unto them, that had passed both Houses, to take and pick out what they liked not, and so much as they chose was En­acted for a Law: but the Custom of the later Kings hath been so gracious, as to allow always of the entire Bill as it hath passed both Houses.

(16) The Parliament is the King's Court, for so all the oldest Statutes call it, the King in his Parliament: But neither of the two Houses are that Su­preme Court, nor yet both of them to­gether; they are only Members, and a part of the Body, whereof the King is the Head and Ruler. The King's Go­verning of this Body of the Parliament [Page 128] we may find most significantly proved both by the Statutes themselves, as also by such Presidents as expresly shew us, how the King, sometimes by himself, sometimes by his Council, and other-times by his Judges, hath over-ruled and directed the Judgments of the Houses of Parliament; for the King, we find that Magna Charta, and the Charter of Forrests, and many other Statutes about those times, had only the Form of the Kings Letters-Patents, or Grants, under the Great Seal, testifying those Great Liberties to be the sole Act and Bounty of the King: The words of Magna Charta begin thus; Henry, by the Grace of God, &c. To all Our Arch­Bishops, &c. and Our Faithful Subjects, Greeting. Know ye, that We, of Our meer free-Will, have granted to all Free-men these Liberties. In the same style goeth the Charter of Forrests, and other Sta­tutes. Statutum Hiberniae, made at West­minster, 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard, Son of Maurice, Justice of Ireland. The Sta­tute de anno Bissextili begins thus, The King to His Iustices of the Bench, Greet­ing, &c. Explanationes Statuti Glocestriae, [Page 129] made by the King and his Iustices only, were received always as Statutes, and are still Printed amongst them.

The Statute made for Correction of the 12th Chapter of the Statute of Glocester, was Signed under the Great Seal, and sent to the Justices of the Bench, after the manner of a Writ Pa­tent, with a certain Writ closed, dated by the Kings Hand at Westminster, re­quiring that they should do, and Execute all and every thing contained in it, al­though the same do not accord with the Statute of Glocester in all things.

The Statute of Rutland, is the Kings Letters to his Treasurer and Barons of his Exchequer, and to his Chamberlain.

The Statute of Circumspecte Agis runs, The King to his Iudges sendeth Greeting.

There are many other Statutes of the same Form, and some of them which run only in the Majestique Terms of, The King Commands, or, The King Wills, or, Our Lord the King hath established, [Page 130] or, Our Lord the King hath ordained: or, His Especial Grace hath granted: With­out mention of Consent of the Com­mons or People; insomuch that some Statutes rather resemble Proclamations, than Acts of Parliament: And indeed some of them were no other than meer Proclamations; as the Provisions of Mer­ton, made by the King at an Assembly of the Prelates and Nobility, for the Coro­nation of the King and his Queen Eleanor, which begins, Provisum est in Curia Do­mini Regis apud Merton. Also a Provision was made 19. Hen. 3. de Assisa ultimae Prae­sentationis, which was continued and al­lowed for Law, until Tit. West. 2. an. 13. Ed. 1. cap. 5. which provides the contrary in express words: This Provision begins, Pro­visum fuit coram Dom. Rege, Archiepiscopis, Episcopis, & Baronibus, quod, &c. It seems Originally the difference was not great between a Proclamation and a Statute; this latter the King made by Common Council of the Kingdom. In the former he had but the advice only of his great Council of the Peers, or of his Privy Council only. For that the King had a great Council, besides his Parliament, ap­pears by a Record of 5. Hen. 4. about [Page 131] an Exchange between the King and the Earl of Northumberland: Whereby the King promiseth to deliver to the Earl Lands to the value, by the advice of Par­liament, or otherwise by the Advice of his Grand Council, and other Estates of the Realm, which the King will Assemble, in case the Parliament do not meet.

We may find what Judgment in la­ter times Parliaments have had of Pro­clamations, by the Statute of 31. of Hen. Cap. 8. in these Words, Forasmuch as the King, by the advice of his Council, hath set forth Proclamations, which ob­stinate Persons have contemned; not consi­dering what a King by his Royal Power may do: Considering that sudden Causes and Occasions fortune many times, which do require speedy Remedies, and that by a­biding for a Parliament, in the mean time might happen great prejudice to en­sue to the Realm: And weighing also, that his Majesty, which by the Kingly and Re­gal Power given him by God, may do ma­ny things in such Cases, should not be dri­ven to extend the Liberties, and Supre­mity of his Regal Power, and Dignity, by [Page 132] willfulness of froward Subjects: It is there­fore thought fit, that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People, and defence of his Royal Dignity as necessity shall require.

This Opinion of a House of Parlia­ment was confirmed afterwards by a Second Parliament, and the Statute made Proclamations of as great validity, as if they had been made in Parliament. This Law continued until the Govern­ment of the State came to be under a Protector, during the Minority of Edward the Sixth, and in his first year it was Repealed.

I find also, that a Parliament in the 11th year of Henry the Seventh, did so great Reverence to the Actions, or Or­dinances of the King, that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King, although by a Statute made not long before all Benevolences were Damned and Annulled for ever.

Mr. Fuller, in his Arguments against [Page 133] the proceedings of the High-Commissi­on Court, affirms, that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects, was made without the Assent of the Commons, because they are not mentioned in the Act. If this Argu­ment be good, we shall find very ma­ny Statutes of the same kind, for the Assent of the Commons was seldom mentioned in the Elder Parliaments. The most usual Title of Parliaments in Edward the 3d, Rich. 2. the three Hen­ries 4. 5. 6. in Edw. 4. and Rich. 3. days, was: The King and his Parliament, with the Assent of the Prelates, Earles, and Barons, and at the Petition, or at the special Instance of the Commons, doth Or­dain.

The same Mr. Fuller saith, that the Statute made against Lollards, was with­out the Assent of the Commons, as ap­pears by their Petition in these Words, The Commons beseech, that whereas a Statute was made in the last Parliament, &c. which was never Assented nor Granted by the Commons, but that which was done therein, was done without their Assent.

[Page 134](17.) How far the Kings Council hath directed and swayed in Parliament, hath in part appeared by what hath been al­ready produced. For further Evidence, we may add the Statute of Westminster: The first which saith, These be the Acts of King Edward 1. made at His First Parliament General, by His Council, and by the assent of Bishops, Abbots, Priors, Earles, Barons, and all the Commonalty of the Realm, &c. The Statute of Bygamy saith, In presence of certain Reverend Fa­thers, Bishops of England, and others of the Kings Council, for as much as all the King's Council, as well Iustices as others, did agree, that they should be put in Wri­ting, and observed. The Statute of Acton Burnell saith, The King, for Himself, and by His Council, hath Ordained and Established.

In Articuli super Chartas; when the Great Charter was confirmed, at the Re­quest of his Prelates, Earls and Barons, we find these Passages. 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the Kings Right, &c. 2. And notwithstanding all these things before-mentioned, or any part [Page 135] of them; both the King and his Council, and all they that were present at the making of this Ordinance, will and intend that the Right and Prerogative of his Crown shall be saved to him in all things. Here we may see in the same Parliament the Char­ter of the Liberties of the Subjects con­firmed, and a saving of the Kings Preroga­tive: Those times neither stumbled at the Name, nor conceived any such An­tipathy between the Terms, as should make them incompatible.

The Statute of Escheators hath this Title, At the Parliament of our Soveraign Lord the King, by his Council it was agreed; and also by the King himself commanded. And the Ordinance of Inquest goeth thus, It is agreed and Ordained by the King himself, and all his Council.

The Statute made at York, 9. Ed. 3. saith, Whereas the Knights, Citizens, and Burgesses desired our Soveraign Lord the King in his Parliament, by their Petition, that for his Profit, and the Commodity of his Prelates, Earls, Barons, and Com­mons, it may please him to provide reme­dy; our Soveraign Lord the King desiring [Page 136] the profit of his people by the assent of his Prelates, Earles, Barons, and other No­bles of his Council being there, hath ordain­ed.

In the Parliament primo Edwardi the Third, where Magna Charta was con­firmed, I find this Preamble, At the Re­quest of the Commonalty by their Petition made before the King and His Council in Parliament, by the assent of the Prelates, Earles, Barons, and other Great Men As­sembled, it was Granted.

The Commons presenting a Petition unto the King, which the King's Coun­cil did mislike, were content thereupon to mend and explain their Petition; the Form of which Petition is in these words, To their most redoubted Soveraign Lord the King, praying the said Commons, That whereas they have pray'd Him to be dis­charged of all manner of Articles of the Eyre, &c. Which Petition seemeth to His Council to be prejudicial unto Him, and in Disinherison of His Crown, if it were so generally granted. His said Commons not willing nor desiring to demand things of Him, which should fall in Disinherison of [Page 137] Him or His Crown perpetually, as of Es­cheators, &c. but of Trespasses, Misprisi­ons, Negligences, and Ignorances, &c.

In the time of Henry the Third, an Order or Provision was made by the King's Council, and it was pleaded at the Common Law in Bar to a Writ of Dower. The Plantiffs Attorney could not deny it, and thereupon the Iudgment was ideo sine die. It seems in those days an Or­der of the Council-Board was either par­cel of the Common-Law or above it.

The Reverend Judges have had regard in their Proceedings, that before they would resolve or give Iudgment in new Cases, they consulted with the King's Privy Council. In the Case of Adam Brab­son, who was assaulted by R. W. in the presence of the Iustices of Assize at West­minster, the Judges would have the Ad­vice of the Kings Council: For in a like Case, because R. C. did strike a Juror at Westminster which passed in an Inquest a­gainst one of his Friends, It was adjudg­ed by all the Council that his right hand should be cut off, and his Lands and Goods forfeited to the King.

[Page 138] Green and Thorp were sent by Judges of the Bench to the Kings Council, to de­mand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amend­ed in a Writ; and it was answered, that a Word may well be amended, although the Statute speak but of a Letter or Syl­lable.

In the Case of Sir Tho. Oghtred, Knight, who brought a Formedon against a poor Man and his Wife; they came and yield­ed to the Demandant, which seemed su­spitious to the Court, whereupon Iudg­ment was stayed; and Thorp said, That in the like Case of Giles Blacket, it was spo­ken of in Parliament, and we were com­manded, that when any like Case should come, we should not go to Iudgment with­out good advice: therefore the Judges Conclusion was, Sues au Counseil, & com­ment ils voillet que nous devomus faire, nous volume faire, & auterment nient en cest case. Sue to the Council, and as they will have us to do, we will; and otherwise not in this Case.

[Page 139](18.) In the last place, we may consi­der how much hath been attributed to the Opinions of the Kings Iudges by Par­liaments, and so find, that the Kings Coun­cil hath guided and ruled the Iudges, and the Iudges guided the Parliament.

In the Parliament of 28. Hen. 6. The Commons made Suit, That William de la Poole, D. of Suffolke, should be com­mitted to Prison, for many Treasons and other Crimes. The Lords of the Higher House were doubtful what Answer to give, the Opinion of the Iudges was demanded. Their Opinion was, that he ought not to be committed, for that the Commons did not charge him with any par­ticular Offence, but with General Reports and Slanders. This Opinion was allow­ed.

In another Parliament, 31. Hen. 6. (which was prorogued) in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damma­ges, in an Action of Trespass, and was committed to Prison in Execution for the same. When the Parliament was re-as­sembled, the Commons made suit to the King and Lords to have their Speaker delivered; the Lords demanded the [Page 140] Opinion of the Judges, whether he might be delivered out of Prison by priviledge of Parliament; upon the Judges an­swer it was concluded, That the Speaker should still remain in Prison, according to the Law, notwithstanding the priviledge of Parliament, and that he was the Speaker: Which Resolution was declared to the Commons by Moyle, the King's Serjeant at Law; and the Commons were com­manded in the Kings Name, by the Bi­shop of Lincolne, (in the absence of the Arch-bishop of Canterbury, then Chan­cellour) to chuse another Speaker.

In septimo of Hen. 8. a question was moved in Parliament, Whether Spiritual Persons might be convented before Temporal Iudges for Criminal Causes. There Sir Iohn Fineux, and the other Judges, deli­vered their Opinion, That they might and ought to be: and their Opinion was allowed and maintained by the King and Lords, and Dr. Standish, who before had holden it; the same Opinion was delivered from the Bi­shops.

If a Writ of Errour be sued in Parlia­ment upon a Judgment given in the Kings [Page 141] Bench, the Lords of the higher House alone, (without the Commons) are to ex­amine the Errours; the Lords are to proceed according to Law, and for their Judgment therein they are to be inform­ed by the advice and counsel of the Judg­es, who are to inform them what the Law is, and so to direct them in their Judgment; for the Lords are not to follow their own Opinions or Discretions otherwise. So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield, against the Prior and Covent of Newton-Panel, as appeareth by Record. See Flower Dew's Case, P. 1. H. 7. fol. 19.

FINIS.

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