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tradict those truths, and they were not as well obeyed in limited government, as in absolute; or, as if examples, taken out of one government, do always hold in another, unless their aim was to deny all distinction of governments, and to hold all absolute, who have any where the supreme power conveyed to them.
Amongst these, I wonder most at that late discourse of Dr. Fern, who, in my judgment, avoucheth things inconsistent, and evidently contradictory one to the other. For in his preface he acknowledges our obedience to be limited and circumscribed by the laws of the land, and accordingly to be yielded or denied to the higher power; and, that he is as much against an absolute power in the king, and to raise him to an arbitrary way of government, as against resistance on the subjects part; also, that his power is limited by law, Sect. v. Yet, on the other side, he affirms, that the king holds his crown by conquest; that it is descended to him by three conquests, Sect. ii. that even our senate of parliament hath not so much plea for resistance, as the ancient Roman senate had under the Roman emperors, whose power we know was absolute, Sect ii; that, in monarchy, the judgment of many is reduced to one; that monarchy settles the chief power and final judgment in one, Sect. v. What is this but to conless him limited, and yet to maintain him absolute?
But let us come to the arguments. First, say they, our kings came to their right by conquest; yea, says the doctor, by three conquests: He means, the Saxons, Danes, and Normans, as appears afterwards: Therefore their right is absolute. Here, that they may advance themselves, they care not, though it be on the ruin of publick liberty, by bringing a whole nation into the condition of conquered slaves. But to the argument: 1. Suppose the antecedent true, the consecution is not always true; for, as it is evident in the first part, all conquest doth not put the conqueror into an absolute right. He may come to a right by conquest; but not sole conquest, but a partial, occasioning a right by final agreement; and then the right is specificated by that fundamental agreement. Also, he may by the sword prosecute a claim of another nature; and, in his war, intend only an acquiring of that claimed right, and, after conquest, rest in that. Yea, farther, he may win a kingdom merely by the sword, and enter on it by the right of conquest; yet, considering that right of conquest hath too much of force in it to be safe and permanent; he may think conquest the best means of getting a kingdom, but not of holding, and, in wisdom for himself and posterity, gain the affections of the people, by deserting that title, and taking a new by politick agreement, or descend from that right by fundamental grants of liberties to the people, and limitations to his own power. But these things I said, in effect, before, in the first part, only here I have recalled them, to shew what a non sequttur there is in the argument. But that which I chiefly intend, is to shew the infirmity or falshood of the antecedent; it is an assertion most untrue in itself, and pernicious to the state. Our princes profess no other way of coming to the crown, but by right of succession to rule free subjects, in a legal monarchy. All the little shew of proof, these assertori
have, is from the root of succession: So William commonly called the Conqueror. For that of the Saxons was an expulsion, not a conquest; for, as our histories record, they, coming into the kingdom, drove out the Britons, and by degrees planted themselves under their commanders, and no doubt continued the freedom they had in Germany; unless we should think, that by conquering they lost their own liberties to the kings, for whom they conquered, and expelled the Britons into Wales. Rather I conceive, the original of the subjects liberty was by those our fore-fathers brought out of Germany: Where, as Tacitus* reports, nee regibus infinita ant libera potestas; their kings had no absolute, but limited power; and all weighty matters were dispatched by general meetings of all the estates. Who sees not here the antiquity of our liberties, and frame of government f So they were governed in Germany, and so here, to this day, for, by transplanting themselves, they changed their soil, not their manners and government. Then, that of the Danes, indeed, was a violent conquest; and, as all violent rules, it lasted not long; when the English expelled them, they recovered their countries and liberties together. Thus it is clear, the English liberty remained to them, till the Norman invasion, notwithstanding that Danish interruption. Now for Duke William, I know nothing they have in him, but the bare stile of conqueror, which seems to make for them. The very truth is, and every intelligent reader of the history of those times will attest it, that Duke William pretended the grant and gift of King Edward, who died without children, and he came with forces into this kingdom, not to conquer, but make good his title against his enemies. His end of entering the land was not to gain a new absolute title, but to vindicate the old limited one, whereby the English Saxon kings his predecessors held this kingdom. Though his title was not so good, as it should be, yet it was better than Harold's, who was only the son of Goodwyn+, steward of King Edward's house: Whereas William was cousin to Emma, mother to the said King Edward; by whom he was adopted, and by solemn promise of King Edward was to succeed him. Of which promise, Harold himself became surety, and bound by oath to see it performed. Here was a fair title, especially Edgar Atheling, the right heir, being of tender age, and disaffected by the people. Neither did he proceed to a full conquest, but after Harold, who usurped the crown, was slain in battle, and none to succeed him; the throne being void, the people chose rather to submit to William and his title, than endure the hazard of ruining war, by opposing him, to set up a new king. It is not to be imagined, that such a realm as England could be conquered by so few, in such a space, if the people's voluntary acceptance of him, and his claim, had not facilitated and shortened his undertaking. Thus we have it related in Mr. Camden, that before Harold usurped the crown most men thought it the wisest policy to set the crown on William's head, that, by performing the oath and promise, a war might be prevented: And that Harold, by assuming
• Tacit. de Morib.Germ. Seer. 3, and 5.
the crown, provoked the whole clergy and ecclesiastical state against him; and we know how potent in those days the clergy were in state affairs. Also, that, after one battle fought wherein Harold was slain, he went to London, was received by the Londoners, and solemnly inaugurated king, as unto whom, by his own saying, the kingdom was by God'sprovidence appointed, and, by vertue of a gift from his lord and cousin King Edward the glorious, granted; so that, after that battle, the remainder of the war was dispatched by English forces and leaders. But suppose he did come in a conqueror; yet he did not establish the kingdom on these terms, but on the old laws, which he retained and authorised for himself, and his successors to govern by. Indeed, after his settlement in the kingdom, some Norman customs he brought in, and to gratify his soldiers dispossessed many English of their estates, dealing in it too much like a conqueror; but the trial by twelve men, and other fundamentals of government, wherein the English freedom consists, he leftuntouched, which have remained till this day. On the same title, he claimed and was inaugurated, was he king, which was a title of rightful succession to Edward: Therefore he was indeed king, not as conqueror, but as Edward's successor; and on the same right, as he and his predecessors held the crown. As also, by the grant of the former laws, and form of government, he did equivalently put himself and successors into the state of legal monarchs; and, in that tenure, have all the kings of this land held the crown till this day; when these men would rake up, and put a title of conquest upon them, which never was claimed or made use of by him, who is the first root of their succession.
Another reason, which they produce, is the successive nature of this monarchy; for, with them, to be elective and limited, and to be successive and absolute, are equipollent; they conceive it impossible, that a government should be hereditary, and not absolute. But I have enough made it appear, Part I. Chap. ii. Sect. 6. That succession doth not prove a monarchy absolute from limitation, though it proves its absolution from interruption and discontinuance, during the being of that succession to which it is defined. And that, which they object, that our kings are actually so, before they take the oath of governing by law, and so they would be, did they never take that oath. Wherefore it is no limitation of their royal power, is there also answered in the next section, and that so fully, that no more need be said. The same law, which gives the king his crown immediately upon the decease of his predecessor, conveys it to him with the same determinations and prerogatives annexed, with which his progenitors enjoyed it; so that, he entering on that original right, his subjects are bound to yield obedience, before they take any oath; and he is bound to the laws of the monarchy, before he actually renews the bond by any personal oath. There is yet another argument usually brought to this purpose, taken from the oath of allegiance; but of that I shall have occasion to speak hereafter.
Supposing it to be in the platform limited, wherein, and how far forth, is it limited and defined?
I Conceive it fundamentally limited in five particulars:
First, In the whole latitude of the nomothetical power; so that their power extends not to establish any act, which hath the being and state of a law of the land; nor give an authentick sense to any law of a doubtful and controverted meaning, solely and by themselves, but together with the concurrent authority of the two other estates in parliament.
Secondly, In the governing power there is a confinement to the fundamental common laws, and to the superstructive statute laws, by the former concurrence of powers enacted, as to the rule of all their acts and executions.
Thirdly, In the power of constituting officers and means of governing; not in the choice of persons, for that is intrusted to his judgment, for aught I know, but in the constitution of courts of judicature; for, as he cannot judge by himself, or officers, but in courts of justice, so those courts of justice must have a constitution by a concurrence of the three estates; they must have the same power to constitute them, as the laws which are dispensed in them.
Fourthly, In the very succession; for tho' succession has been brought as a medium to prove the absoluteness of this government, yet, if it be more thoroughly considered, it is rather a proof of the contrary; and every one, who is a successive monarch, is so far limited in his power, that he cannot leave it to whom he pleases, but to whom the fundamental law concerning that succession hath designed it. And herein, though our monarchy be not so limited, as that of France is said to be, where the king cannot leave it to his daughter, but to his heir male, yet restrained it is; so that, should he affect another more, or judge another fitter to succeed, yet he cannot please himself in this, but is limited to the next heir born, not adopted, nor denominated; which was the case betwixt Queen Mary and the Lady Jane.
Lastly, In point'of revenue; wherein their power extendeth not to their subjects estates, by taxes and impositions to make their own what they please, as hath been acknowledged by Magna Charta, and lately by the Petition of Right, the case of ship-money, conductmoney, &c. nor, as I conceive, to make an alienation of any lands, or other revenues annexed by law to the crown. I meddle not with personal limitations, whereby kings, as well as private men, may limit themselves by promise and covenant, which, being particular, bind only themselves; but with those which are radical, and have continued, during the whole current of succession, from unknown times. Other limitations, it is likely, may be produced by those who are skilful in the laws; but I believe they will be such, as are reducible to some of these, which I take to be the principal and most apparent limitations of this monarchy, and are a most con. Tincing introduction to prove my assertion in the former chapter, 'That this monarchy, in the very mould and frame of it, is of a limited • constitution.'
Whether it be of a simple, or mixed constitution T
When the government is simple, when mixed; also where the mil. ture must be, which denominates a mixed government, is explained, Part I. Chap. iii. Now I conceive it a clear and undoubted truth, that the authority of this land is of a compounded and mixed nature, in the very root and constitution thereof; and my judgment is established on these grounds:
First, It is acknowledged to be a monarchy mixed with aristocracy in the house of peers,'and democracy in the house of commons. Now (as before was made appear, in the first part) it is no mixture, which is not in the root and supremacy of power; for, though it have a subordination of inferior officers, and though the powers inferior be seated in a mixed subject, yet that makes it not a mixed government, for it is compatible to the simplest in the world to have subordinate mixtures.
Secondly, That monarchy, where the legislative power is in all three, is, in the very root and essence of it, compounded and mixed of those three; for that is the height of power, to which the other parts are subsequent and subservient: so that, where this resideth in a mixed subject, that is, in three distinct concurrent estates, the consent and concourse of all most free, and none depending on the will of the other, that monarchy is, in the most proper sense, and in the very model of it, of a mixed constitution. But such is the state of this monarchy, as appears in the former question, and is self. apparent.
Thirdly, That monarchy, in which three estates are constituted, to the end that the power of one should moderate and restrain from excess the power of the other, is mixed in the root and essence of it; but such is this, as is confessed in the answer to the said propositions. The truth of the major will appear, if we consider how many ways provision may be made, in a political frame, to remedy and restrain the excesses of monarchy. I can imagine but three ways: First, By constituting a legal power above it, that it may be regulated thereby, as by an over-ruling power. Thus we must not conceive of our two houses of parliament, as if they could remedy the exorbitances of the prince by an authority superior to his; for this were to subordinate him to the two houses, to set a superior above the sovereign, that is, to destroy the being of his mo. narchical power. Secondly, by an original conveyance to him of a limited and legal power, so that beyond it he can do no potestative act; yet constituting no formal legal power to refrain, tn redress