Kings of Spain France and Sweden so well to understand the meaning of it as to decide extraordinary cases The wisdom of Nations has provided more assured helps and none could have bin so brutish and negligent of the publick Concernments to suffer the Succession to fall to women children c. if they had not reserved a power in themselves to prefer others before the nearest in blood if reason require and prescribed such rules as might preserve the publick from ruin notwithstanding their infirmities and vices These helps provided by our Laws are principally by grand and petit Juries who are not only Judges of matters of fact as whether a man be kill'd but whether he be kill'd criminally These men are upon their Oaths and may be indicted of Perjury if they prevaricate The Judges are present not only to be a check upon them but to explain such points of the Law as may seem difficult And tho these Judges may be said in some sense to be chosen by the King he is not understood to do it otherwise than by the advice of his Council who cannot perform their duty unless they propose such as in their consciences they think most worthy of the Office and most capable of performing the duty rightly nor he accomplish the Oath of his Coronation unless he admit those who upon deliberation seem to be the best The Judges being thus chosen are so far from depending upon the will of the King that they swear faithfully to serve the People as well as the King and to do justice to every man according to the Law of the Land notwithstanding any Writs Letters or Commands received from him and in default thereof they are to forfeit their bodies lands and goods as in cases of Treason These Laws have bin so often and so severely executed that it concerns all Judges well to consider them and the Cases of Tresilian Empson Dudley and others shew that neither the King 's preceding command nor subsequent pardon could preserve them from the punishment they deserved All men knew that what they did was agreeable to the King's pleasure for Tresilian advanced the Prerogative of Edward the 2d and Empson brought great Treasures into the Coffers of Henry the 7th Nevertheless they were charged with Treason for subverting the Laws of the Land and executed as Traitors Tho England ought never to forget the happy Reign of Q. Elizabeth yet it must be acknowledged that she as well as others had her failings She was full of love to the People just in her nature sincere in her intentions but could not so perfectly discover the snares that were laid for her or resist the importunity of the Persons she most trusted as not sometimes to be brought to attempt things against Law She and her Counsellors pressed the Judges very hardly to obey the Patent under her Great Seal in the case of Cavendish but they answered That both she and they had taken an Oath to keep the Law and if they should obey her commands the Law would not warrant them c. And besides the offence against God their Country and the Commonwealth they alledged the example of Empson and Dudley whereby they said they were deterred from obeying her illegal Commands They who had sworn to keep the Law notwithstanding the King's Writs knew that the Law depended not upon his will and the same Oath that obliged them not to regard any command they should receive from him shewed that they were not to expect indemnity by it and not only that the King had neither the power of making altering mitigating or interpreting the Law but that he was not at all to be heard in general or particular matters otherwise than as he speaks in the common course of Justice by the Courts legally established which say the same thing whether he be young or old ignorant or wise wicked or good and nothing dos better evidence the wisdom and care of our Ancestors in framing the Laws and Government we live under than that the People did not suffer extremities by the vices or infirmities of Kings till an Age more full of malice than those in which they lived had found tricks to pervert the rule and frustrate their honest intentions It was not safe for the Kings to violate their Oaths by an undue interposition of their Authority but the Ministers who served them in those violations have seldom escaped punishment This is to be understood when the deviations from Justice are extreme and mischievous for something must always be allow'd to human frailty The best have their defects and none could stand if a too exact scrutiny were made of all their actions Edward the third about the twentieth year of his Reign acknowledged his own in Parliament and as well for the ease of his Conscience as the satisfaction of his People promoted an Act Commanding all Judges to do Justice notwithstanding any Writs Letters or Commands from himself and forbidding those that belonged to the King Queen and Prince to intermeddle in those matters But if the best and wisest of our Princes in the strength and maturity of their years had their failings and every act proceeding from them that tended to the interruption of Justice was a failing how can it be said that the King in his personal capacity directly or indirectly may enter into the discussion of these matters much less to determine them according to his will But says our Author the Law is no better than a Tyrant general Pardons at the Coronation and in Parliament are but the bounty of the Prerogative c. There may be hard cases and citing some perverted pieces from Aristotle's Ethicks and Politicsk adds That when something falls out besides the general rule then it is fit that what the Lawmaker hath omitted or where he hath erred by speaking generally it should be corrected and supplied as if the Lawmaker were present that ordained it The Governor whether he be one man or more ought to be Lord of these things whereof it was impossible that the Law should speak exactly These things are in part true but our Author makes use of them as the Devil dos of Scripture to subvert the truth There may be something of rigour in the Law that in some cases may be mitigated and the Law it self in relation to England dos so far acknowledg it as to refer much to the consciences of Juries and those who are appointed to assist them and the most difficult Cases are referred to the Parliament as the only judges that are able to determine them Thus the Statute of the 35 Edw. 3d enumerating the crimes then declared to be Treason leaves to suture Parliaments to judg what other facts equivalent to them may deserve the same punishment and 't is a general rule in the Law which the Judges are sworn to observe that difficult Cases should be reserved till the Parliament meet who are only able to decide them and
The two Twins could not agree Jacob was sent away by his Mother he reigned over Esau only and 't is not easy to determine who was the Heir of his worldly Kingdom for the Jacob had the birth-right we do not find he had any other Goods than what he had gotten in Laban's service If our Author say true the right of Primogeniture with the Dominion perpetually annexed by the Laws of God and Nature must go to the eldest Isaac therefore tho he had not bin deceived could not have conferred it upon the younger for Man cannot overthrow what God and Nature have instituted Jacob in the Court Language had bin a double Rebel in beguiling his Father and supplanting his Brother The blessing of being Lord over his Brethren could not have taken place Or if Isaac had Power and his Act was good the Prerogative of the elder is not rooted in the Law of God or Nature but a matter of conveniency only which may be changed at the Will of the Father whether he know what he do or not But if this Paternal Right to Dominion were of any value or Dominion over Men were a thing to be desired why did Abraham Isaac and Jacob content themselves with such a narrow Territory when after the death of their Ancestors they ought according to that rule to have bin Lords of the World All Authors conclude that Shem was the eldest by birth or preferred by the appointment of God so as the Right must have bin in him and from him transmitted to Abraham and Isaac but if they were so possessed with the contemplation of a Heavenly Kingdom as not to care for the greatest on Earth 't is strange that Esau whose modesty is not much commended should so far forget his Interest as neither to lay claim to the Empire of the World nor dispute with his Brother the possession of the Field and Cave bought by Abraham but rather to fight for a dwelling on Mount Seir that was neither possessed by nor promised to his Fathers If he was fallen from his Right Jacob might have claimed it but God was his Inheritance and being assured of his Blessing he contented himself with what he could gain by his Industry in a way that was not at all sutable to the Pomp and Majesty of a King Which way soever theresore the business be turned whether according to Isaac's Blessing Esau should serve Jacob or our Author's opinion Jacob must serve Esau neither of the two was effected in their Persons And the Kingdom of two being divided into two each of them remained Lord of himself SECT IX The Power of a Father belongs only to a Father THIS leads us to an easy determination of the Question which our Author thinks insoluble If Adam was Lord of his Children he doth not see how any can be free from the subjection of his Parents For as no good Man will ever desire to be free from the respect that is due to his Father who did beget and educate him no wise Man will ever think the like to be due to his Brother or Nephew that did neither If Esau and Jacob were equally free if Noah as our Author affirms divided Europe Asia and Africa amongst his three Sons tho he cannot prove it and if seventy two Nations under so many Heads or Kings went from Babylon to people the Earth about a hundred and thirty years after the Flood I know not why according to the same rule and proportion it may not be safely concluded that in four thousand years Kings are so multiplied as to be in number equal to the Men that are in the World that is to say they are according to the Laws of God and Nature all free and independent upon each other as Shem Ham and Japhet were And therefore tho Adam and Noah had reigned alone when there were no Men in the World except such as issued from them that is no reason why any other should reign over those that he hath not begotten As the Right of Noah was divided amongst the Children he left and when he was dead no one of them depended on the other because no one of them was Father of the other and the Right of a Father can only belong to him that is so the like must for ever attend every other Father in the World This paternal Power must necessarily accrue to every Father He is a King by the same Right as the Sons of Noah and how numerous soever Families may be upon the increase of Mankind they are all free till they agree to recede from their own Right and join together in or under one Government according to such Laws as best please themselves SECT X. Such as enter into Society must in some degree diminish their Liberty REASON leads them to this No one Man or Family is able to provide that which is requisite for their convenience or security whilst every one has an equal Right to every thing and none acknowledges a Superior to determine the Controversies that upon such occasions must continually arise and will probably be so many and great that Mankind cannot bear them Therefore tho I do not believe that Bellarmin said a Commonwealth could not exercise its Power for he could not be ignorant that Rome and Athens did exercise theirs and that all the Regular Kingdoms in the World are Commonwealths yet there is nothing of absurdity in saying That Man cannot continue in the perpetual and entire fruition of the Liberty that God hath given him The Liberty of one is thwarted by that of another and whilst they are all equal none will yield to any otherwise than by a general consent This is the ground of all just Governments for violence or fraud can create no Right and the same consent gives the Form to them all how much soever they differ from each other Some small numbers of Men living within the Precincts of one City have as it were cast into a common Stock the Right which they had of governing themselves and Children and by common Consent joining in one body exercised fuch Power over every single Person as seemed beneficial to the whole and this Men call perfect Democracy Others chose rather to be governed by a select number of such as most excelled in Wisdom and Vertue and this according to the signification of the word was called Aristocracy Or when one Man excelled all others the Government was put into his hands under the name of Monarchy But the wisest best and far the greatest part of mankind rejecting these simple Species did form Governments mixed or composed of the three as shall be proved hereafter which commonly received their respective Denomination from the part that prevailed and did deserve Praise or Blame as they were well or ill proportioned It were a folly hereupon to say that the Liberty for which we contend is of no use to us since we cannot endure the Solitude Barbarity Weakness Want Misery and Dangers
pleased only to affirm it without giving the least shadow of a reason to perswade us to believe him This might justify me if I should reject his assertion as a thing said gratis but I may safely go a step farther and affirm That men lived under Laws before there were any Kings which cannot be denied if such a Power necessarily belongs to Kings as he ascribes to them For Nimrod who established his Kingdom in Babel is the first who by the Scripture is said to have bin a mighty one in the Earth He was therefore the first King or Kings were not mighty and he being the first King Mankind must have lived till his time without Laws or else Laws were made before Kings To say that there was then no Law is in many respects most absurd for the nature of man cannot be without it and the violences committed by ill men before the Flood could not have bin blamed if there had bin no Law for that which is not cannot be transgressed Cain could not have seared that every man who met him would slay him if there had not bin a Law to slay him that had slain another But in this case the Scripture is clear at least from the time that Noah went out of the Ark for God then gave him a Law sufficient for the state of things at that time if all violence was prohibited under the name of shedding Blood tho not under the same penalty as Murder But Penal Laws being in vain if there be none to execute them such as know God dos nothing in vain may conclude that he who gave this Law did appoint some way for its execution tho unknown to us There is therefore a Law not given by Kings but laid upon such as should be Kings as well as on any other Persons by one who is above them and perhaps I may say that this Law presseth most upon them because they who have most power do most frequently break out into acts of Violence and most of all disdain to have their will restrained and he that will exempt Kings from this Law must either find that they are excepted in the Text or that God who gave it has not a Power over them Moreover it has bin proved at the beginning of this Treatise that the first Kings were of the accursed race and reigned over the accursed Nations whilst the holy Seed had none If therefore there was no Law where there was no King the accursed Posterity of Cham had Laws when the blessed Descendents of Shem had none which is most absurd the word Outlaw or Lawless being often given to the wicked but never to the just and righteous The impious folly of such Assertions gos farther than our Author perhaps suspected for if there be no Law where there is no King the Israelites had no Law till Saul was made King and then the Law they had was from him They had no King before sor they asked one They could not have asked one of Samuel if he had bin a King He had not bin offended and God had not imputed to them the sin of rejecting him if they had asked that only which he had set over them If Samuel were not King Moses Joshua and the other Judges were not Kings for they were no more than he They had therefore no King and consequently if our Author say true no Law If they had no Law till Saul was King they never had any for he gave them none and the Prophets were to blame for denouncing judgments against them for receding from or breaking their Law if they had none He cannot say that Samuel gave them a Law for that which he wrote in a Book and laid up before the Lord was not a Law to the People but to the King If it had bin a Law to the People it must have bin made publick but as it was only to the King he laid it up before God to restify against him if he should adventure to break it Or if it was a Law to the People the matter is not mended for it was given in the time of a King by one who was not King But in truth it was the Law of the Kingdom by which he was King and had bin wholly impertinent if it was not to bind him for it was given to no other person and to no other end Our Author's Assertion upon which all his Doctrine is grounded That there is no Nation that allows Children any action or remedy for being unjustly governed is as impudently false as any other proposed by him for tho a Child will not be heard that complains of the Rod yet our own Law gives relief to Children against their Fathers as well as against other persons that do them injuries upon which we see many ill effects and I do rather relate than commend the practice In other places the Law gives relief against the extravagancies of which Fathers may be guilty in relation to their Children tho not to that excess as to bring them so near to an equality as in England They cannot imprison sell or kill their Children without exposing themselves to the same punishments with other men and if they take their Estates from them the Law is open and gives relief against them but on the other side Children are punished with Death if they strike or outragiously abuse their Parents which is not so with us Now if the Laws of Nations take such care to preserve private men from being too hardly used by their true and natural Fathers who have such a love and tenderness for them in their own Blood that the most wicked and barbarous do much more frequently commit crimes for them than against them how much more necessary is it to restrain the fury that Kings who at the best are but phantastical Fathers may exercise to the destruction of the whole People 'T is a folly to say that David and some other Kings have had or that all should have a tenderness of affection towards their People as towards their Children for besides that even the first Proposition is not acknowledged and will be hardly verified in any one instance there is a vast distance between what men ought to be and what they are Every man ought to be just true and charitable and if they were so Laws would be of no use but it were a madness to abolish them upon a supposition that they are so or to leave them to a future punishment which many do not believe or not regard I am not obliged to believe that David loved every Israelite as well as his Son Absalom but tho he had I could not from thence inser that all Kings do so unless I were sure that all of them were as wise and virtuous as he But to come more close to the matter Do we not know of many Kings who have come to their Power by the most wicked means that can enter into the heart of man even
most opposite to his Maxims He lived says he in Henry the third's time since Parliaments were instituted as if there had bin a time when England had wanted them or that the establishment of our Liberty had bin made by the Normans who if we will believe our Author came in by force of Arms and oppressed us But we have already proved the Essence of Parliaments to be as antient as our Nation and that there was no time in which there were not such Councils or Assemblies of the People as had the power of the whole and made or unmade such Laws as best pleased themselves We have indeed a French word from a People that came from France but the Power was always in our selves and the Norman Kings were obliged to swear they would govern according to the Laws that had bin made by those Assemblies It imports little vvhether Bracton lived before or after they came amongst us His vvords are Omnes sub eo ipse sub nullo sed tantum sub Deo All are under him and he under none but God only If he offend since no Writ can go out against him their Remedy is by petitioning him to amend his Faults which if he will not do it is punishment enough for him to expect God as an avenger Let none presume to look into his Deeds much less to oppose him Here is a mixture of Sense and Nonsense Truth and Falshood the vvords of Bracton vvith our Author's foolish Inferences from them Bracton spoke of the politick capacity of the King vvhen no Law had forbidden him to divide it from his natural He gave the name of King to the sovereign Power of the Nation as Jacob called that of his Descendents The Scepter vvhich he said should not depart from Judah till Shiloh came tho all men know that his Race did not reign the third part of that time over his own Tribe nor full fourscore years over the whole Nation The same manner of speech is used in all parts of the world Tertullian under the name of Cesar comprehended all magistratical Power and imputed to him the Acts of which in his person he never had any knowledg The French say their King is always present sur son lit de justice in all the Sovereign Courts of the Kingdom which are not easily numbred and that Maxim could have in it neither sense nor truth if by it they meant a Man who can be but in one place at one time and is always comprehended within the Dimensions of his own Skin These things could not be unknown to Bracton the like being in use amongst us and he thought it no offence so far to follow the dictates of Reason prohibited by no Law as to make a difference between the invisible and omnipresent King who never dies and the Person that wears the Crown whom no man without the guilt of Treason may endeavour to kill since there is an Act of Parliament in the case I will not determine whether he spoke properly or no as to England but if he did not all that he said being upon a false supposition is nothing to our purpose The same Bracton says the King doth no wrong in as much as he doth nothing but by Law The Power of the King is the Power of the Law a power of right not of wrong Again If the King dos injustice he is not King In another place he has these words The King therefore ought to exercise the Power of the Law as becomes the Vicar and Minister of God upon Earth because that Power is the Power of God alone but the Power of doing wrong is the Power of the Devil and not of God And the King is his Minister whose Work he dos Whilst he dos Justice he is the Vicar of the Eternal King but if he deflect from it to act unjustly he is the Minister of the Devil He also says that the King is singulis major universis minor and that he who is in justitia exequenda omnibus major in justitia recipienda cuilibet ex plebe fit aequalis I shall not say Bracton is in the right when he speaks in this manner but 't is a strange impudence in Filmer to cite him as a Patron of the absolute Power of Kings who dos so extremely depress them But the grossest of his follies is yet more pardonable than his detestable fraud in falsifying Bracton's words and leaving out such as are not for his purpose which shew his meaning to be directly contrary to the sense put upon them That this may appear I shall set down the words as they are found in Bracton Ipse autem Rex non debet esse sub homine sed sub Deo sub Lege quia Lex facit Regem Attribuat ergo Rex Legi quod Lex attribuit ei id est dominationem potestatem Non est enim Rex ubi dominatur volunt as non Lex quod sub Lege esse debeat cum sit Dei vicarius evidenter apparet If Bracton therefore be a competent Judg the King is under the Law and he is not a King nor God's Vicegerent unless he be so and we all know how to proceed with those who being under the Law offend against it For the Law is not made in vain In this case something more is to be done than petitioning and 't is ridiculous to say that if he will not amend 't is punishment enough for him to expect God an Avenger for the same may be said of all Malefactors God can sufficiently punish Thieves and Murderers but the future Judgment of which perhaps they have no belief is not sufficient to restrain them from committing more Crimes nor to deter others from following their example God was always able to punish Murderers but yet by his Law he commands man to shed the blood of him who should shed man's blood and declares that the Land cannot be purged of the Guilt by any other means He had Judgments in store for Jeroboam Ahab and those that were like them but yet he commanded that according to that Law their Houses should be destroy'd from the earth The dogs lick'd up the blood of Ahab where they had licked that of Naboth and eat Jezebel who had contrived his murder But says our Author we must not look into his deeds much less oppose them Must not David look into Saul's deeds nor oppose them Why did he then bring together as many men as he could to oppose and make foreign Alliances against him even with the Moabites and the accursed Philistins Why did Jehu not only destroy Ahab's house but kill the King of Judah and his forty Brothers only for going to visit his Children Our Author may perhaps say because God commanded them But if God commanded them to do so he did not command them and all mankind not to do so and if he did not forbid they have nothing to restrain them from
No man has yet observed the Moderation of Gideon to have bin in Abimelech the Piety of Eli in Hophni and Phineas the Purity and Integrity of Samuel in Joel and Abiah nor the Wisdom of Solomon in Rehoboam And if there was so vast a difference between them and their Children who doubtless were instructed by those excellent men in the ways of Wisdom and Justice as well by Precept as Example were it not madness to be confident that they who have neither precept nor good example to guide them but on the contrary are educated in an utter ignorance or abhorrence of all virtue will always be just and good or to put the whole power into the hands of every man woman or child that shall be born in governing Families upon a supposition that a thing will happen which never did or that the weakest and worst will perform all that can be hoped and was seldom accomplished by the wisest and best exposing whole Nations to be destroy'd without remedy if they do it not And if this be madness in all extremity 't is to be presumed that Nations never intended any such thing unless our Author prove that all Nations have bin mad from the beginning and must always continue to be so To cure this he says They degenerate into Tyrants and if he meant as he speaks it would be enough For a King cannot degenerate into a Tyrant by departing from that Law which is only the product of his own will But if he do degenerate it must be by departing from that which dos not depend upon his will and is a rule prescribed by a power that is above him This indeed is the Doctrine of Bracton who having said that the Power of the King is the Power of the Law because the Law makes him King adds That if he do injustice he ceases to be King degenerates into a Tyrant and becomes the Vicegerent of the Devil But I hope this must be understood with temperament and a due consideration of human frailty so as to mean only those injuries that are extreme for otherwise he would terribly shake all the Crowns of the World But lest our Author should be thought once in his life to have dealt sincerely and spoken truth the next lines shew the fraud of his last Assertion by giving to the Prince a power of mitigating or interpreting the Laws that he sees to be rigorous or doubtful But as he cannot degenerate into a Tyrant by departing from the Law which proceeds from his own will so he cannot mitigate or interpret that which proceeds from a superior Power unless the right of mitigating or interpreting be conferred upon him by the same For as all wise men confess that none can abrogate but those who may institute and that all mitigation and interpretation varying from the true sense is an alteration that alteration is an abrogation for whatsoever is changed is dissolved and therefore the power of mitigating is inseparable from that of instituting This is sufficiently evidenced by Henry the Eighth's Answer to the Speech made to him by the Speaker of the House of Commons 1545 in which he tho one of the most violent Princes we ever had confesses the Parliament to be the Law-makers and that an obligation lay upon him rightly to use the power with which he was entrusted The right therefore of altering being inseparable from that of making Laws the one being in the Parliament the other must be so also Fortescue says plainly the King cannot change any Law Magna Charta casts all upon the Laws of the Land and Customs of England but to say that the King can by his will make that to be a Custom or an antient Law which is not or that not to be so which is is most absurd He must therefore take the Laws and Customs as he finds them and can neither detract from nor add any thing to them The ways are prescribed as well as the end Judgments are given by equals per Pares The Judges who may be assisting to those are sworn to proceed according to Law and not to regard the King's Letters or Commands The doubtful Cases are reserved and to be referred to the Parliament as in the Statute of 35 Edw. 3d concerning Treasons but never to the King The Law intending that these Parliaments should be annual and leaving to the King a power of calling them more often if occasion require takes away all pretence of a necessity that there should be any other power to interpret or mitigate Laws For 't is not to be imagined that there should be such a pestilent evil in any antient Law Custom or later Act of Parliament which being on the sudden discover'd may not without any great prejudice continue for forty days till a Parliament may be called whereas the force and essence of all Laws would be subverted if under colour of mitigating and interpreting the power of altering were allow'd to Kings who often want the inclination and sor the most part the capacity of doing it rightly 'T is not therefore upon the uncertain will or understanding of a Prince that the safety of a Nation ought to depend He is sometimes a child and sometimes overburden'd with years Some are weak negligent slothful foolish or vicious others who may have something of rectitude in their intentions and naturally are not uncapable of doing well are drawn out of the right way by the subtilty of ill men who gain credit with them That rule must always be uncertain and subject to be distorted which depends upon the fancy of such a man He always fluctuates and every passion that arises in his mind or is infused by others disorders him The good of a People ought to be established upon a more solid foundation For this reason the Law is established which no passion can disturb 'T is void of desire and fear lust and anger 'T is Mens sine affectu written reason retaining some measure of the Divine Perfection It dos not enjoin that which pleases a weak frail man but without any regard to persons commands that which is good and punishes evil in all whether rich or poor high or low 'T is deaf inexorable inflexible By this means every man knows when he is safe or in danger because he knows whether he has done good or evil But if all depended upon the will of a man the worst would be often the most safe and the best in the greatest hazard Slaves would be often advanced the good and the brave scorn'd and neglected The most generous Nations have above all things sought to avoid this evil and the virtue wisdom and generosity of each may be discern'd by the right fixing of the rule that must be the guide of every mans life and so constituting their Magistracy that it may be duly observed Such as have attained to this perfection have always flourished in virtue and happiness They are as Aristotle
says governed by God rather than by men whilst those who subjected themselves to the will of a man were governed by a beast This being so our Author's next clause That tho a King do frame all his Actions to be according unto Law yet he is not bound thereunto but as his good will and for good example or so far forth as the general Law for the safety of the Commonwealth doth naturally bind him is wholly impertinent For if the King who governs not according to Law degenerates into a Tyrant he is obliged to frame his actions according to Law or not to be a King for a Tyrant is none but as contrary to him as the worst of men is to the best But if these obligations were untied we may easily guess what security our Author's word can be to us that the King of his own good will and for a good example will frame his actions according to the Laws when experience instructs us that notwithstanding the strictest Laws and most exquisite Constitutions that men of the best abilities in the world could ever invent to restrain the irregular appetites of those in power with the dreadful examples of vengeance taken against such as would not be restrained they have frequently broken out and the most powerful have for the most part no otherwise distinguished themselves from the rest of men than by the enormity of their vices and being the most forward in leading others to all manner of crimes by their example SECT XVI The observation of the Laws of Nature is absurdly expected from Tyrants who set themselves up against all Laws and he that subjects Kings to no other Law than what is common to Tyrants destroys their being OUR Authors last clause acknowledging Kings to be bound by a general Law to provide for the safety of the People would be sufficient for my purpose if it were sincere for municipal Laws do only shew how that should be performed and if the King by departing from that rule degenerates as he says into a Tyrant 't is easily determined what ought then to be done by the People But his whole book being a heap of contradictions and frauds we can rely upon nothing that he says And his following words which under the same Law comprehend both Kings and Tyrants shew that he intends Kings should be no otherwise obliged than Tyrants which is not at all By this means says he are all Kings even Tyrants and Conquerors bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any municipal Law of the Land so much as by the natural Law of a Father which obligeth them to ratify the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects If he be therefore in the right Tyrants and Conquerors are Kings and Fathers The words that have bin always thought to comprehend the most irreconcileable contrariety the one expressing the most tender love and care evidently testified by the greatest obligations conferred upon those who are under it the other the utmost of all injuries that can be offer'd to men signify the same thing There is no difference between a Magistrate who is what he is by Law and a publick Enemy who by force or fraud sets himself up against all Law And what he said before that Kings degenerated into Tyrants signifies nothing for Tyrants also are Kings His next words are no less incomprehensible for neither King nor Tyrant can be obliged to preserve the Lands Goods and Liberties of their Subjects if they have none But as Liberty consists only in being subject to no man's will and nothing denotes a Slave but a dependence upon the will of another if there be no other Law in a Kingdom than the will of a Prince there is no such thing as Liberty Property also is an appendage to Liberty and 't is as impossible for a man to have a right to Lands or Goods if he has no Liberty and enjoys his Life only at the pleasure of another as it is to enjoy either when he is deprived of them He therefore who says Kings and Tyrants are bound to preserve their Subjects Lands Liberties Goods and Lives and yet lays for a foundation that Laws are no more than the significations of their Pleasure seeks to delude the world with words which signify nothing The vanity of these whimseys will farther appear if it be considered that as Kings are Kings by Law and Tyrants are Tyrants by overthrowing the Law they are most absurdly joined together and 't is not more ridiculous to set him above the Law who is what he is by the Law than to expect the observation of the Laws that enjoin the preservation of the Lands Liberties Goods and Lives of the People from one who by fraud or violence makes himself master of all that he may be restrain'd by no Law and is what he is by subverting all Law Besides if the safety of the People be the supreme Law and this safety extend to and consist in the preservation of their Liberties Goods Lands and Lives that Law must necessarily be the root and beginning as well as the end and limit of all magistratical Power and all Laws must be subservient and subordinate to it The question will not then be what pleases the King but what is good for the People not what conduces to his profit or glory but what best secures the Liberties he is bound to preserve he dos not therefore reign for himself but for the People he is not the Master but the Servant of the Commonwealth and the utmost extent of his Prerogative is to be able to do more good than any private man If this be his work and duty 't is easily seen whether he is to judg of his own performance or they by whom and for whom he reigns and whether in order to this he be to give Laws or to receive them 'T is ordinarily said in France Il faut que chacun soit servi a sa mode Every mans business must be done according to his own mind and if this be true in particular Persons 't is more plainly so in whole Nations Many eyes see more than one the collected wisdom of a People much surpasses that of a single Person and tho he should truly seek that which is best 't is not probable he would so easily find it as the body of a Nation or the principal men chosen to represent the whole This may be said with justice of the best and wisest Princes that ever were but another Language is to be used when we speak of those who may succeed and who very often through the defects of Age Person or Sex are neither fit to judg of other mens affairs nor of their own and are so far from being capable of the highest Concernments relating to the safety of whole Nations that the most trivial cannot reasonably be referred to them There are few men
2d which he swears to abolish Now what Laws are upright and what evil who shall judg but the King c. So that in effect the King doth swear to keep no Laws but such as in his judgment are upright c. And if he did strictly swear to observe all Laws he could not without Perjury give his consent to the repealing or abrogating of any Statute by Act of Parliament c. And again But let it be supposed for Truth that Kings do swear to observe all Laws of their Kingdoms yet no man can think it reason that the Kings should be more bound by their voluntary Oaths than common Persons Now if a private Person make a Contract either with Oath or without Oath he is no farther bound than the equity and justice of the Contract ties him for a man may have relief against an unreasonable and unjust Promise if either deceit or error force or fear induced him thereunto or if it be hurtful or grievous in the performance since the Law in many cases gives the King a Prerogative above common persons Lest I should be thought to insist upon small advantages I will not oblige any man to shew where Filmer found this Oath nor observe the faults committed in the Translation but notwithstanding his false representation I find enough for my purpose and intend to take it in his own words But first I shall take leave to remark that those who for private interests addict themselves to the personal service of Princes tho the ruin of their Country find it impossible to perswade Mankind that Kings may govern as they please when all men know there are Laws to direct and restrain them unless they can make men believe they have their power from a universal and superior Law or that Princes can attempt to dissolve the obligations laid upon them by the Laws which they so solemnly swear to observe without rendring themselves detestable to God and Man and subject to the revenging hands of both unless they can invalidate those Oaths Mr. Hobbes I think was the first who very ingeniously contrived a compendious way of justifying the most abominable Perjuries and all the mischiefs ensuing thereupon by pretending that as the King's Oath is made to the People the People may absolve him from the obligation and that the People having conferred upon him all the Power they had he can do all that they could he can therefore absolve himself and is actually free since he is so when he pleases This is only false in the minor for the People not having conferred upon him all but only a part of their Power that of absolving him remains in themselves otherwise they would never have obliged him to take the Oath He cannot therefore absolve himself The Pope finds a help for this and as Christ's Vicar pretends the power of Absolution to be in him and exercised it in absolving King John But our Author despairing to impose either of these upon our Age and Nation with more impudence and less wit would enervate all Coronation-Oaths by subjecting them to the discretion of the taker whereas all men have hitherto thought their force to consist in the declared sense of those who give them This doctrine is so new that it surpasses the subtilty of the Schoolmen who as an ingenious Person said of them had minced Oaths so fine that a million of them as well as Angels may stand upon the point of a needle and were never yet equalled but by the Jesuits who have overthrown them by mental reservations which is so clearly demonstrated from their books that it cannot be denied but so horrible that even those of their own Order who have the least spark of common honesty condemn the practice And one of them being a Gentleman of a good family told me he would go the next day and take all the Oaths that should be offer'd if he could satisfy his conscience in using any manner of equivocation or mental reservation or that he might put any other sense upon them than he knew to be intended by those who offer'd them And if our Author's conscience were not more corrupted than that of the Jesuit who had lived fifty years under the worst Discipline that I think ever was in the world I would ask him seriously if he truly believe that the Nobility Clergy and Commonalty of England who have bin always so zealous for their antient Laws and so resolute in defending them did mean no more by the Oaths they so solemnly imposed and upon which they laid so much weight than that the King should swear to keep them so far only as he should think fit But he swears only to observe those that are upright c. How can that be understood otherwise than that those who give the Oath do declare their Laws and Customs to be upright and good and he by taking the Oath affirms them to be so Or how can they be more precisely specified than by the ensuing Clause Granted from God by just and devout Kings by Oath especially those of the famous King Edward But says he by the same Oath Richard the 2d was bound to abolish those that were evil If any such had crept in through error or bin obtruded by malice the evil being discovered and declared by the Nobility and Commons who were concerned he was not to take advantage of them or by his refusal to evade the abolition but to join with his people in annulling them according to the general Clause of assenting to those Quas vulgus elegerit Magna Charta being only an abridgment of our antient Laws and Customs the King that swears to it swears to them all and not being admitted to be the interpreter of it or to determin what is good or evil fit to be observed or annulled in it can have no more power over the rest This having bin confirmed by more Parliaments than we have had Kings since that time the same obligation must still lie upon them all as upon John and Henry in whose time that claim of right was compiled The Act was no less solemn than important and the most dreadful curses that could be conceived in words which were denounced against such as should any way infringe it by the Clergy in Westminster-Hall in the presence and with the assent of K. Henry the 3d many of the principal Nobility and all the Estates of the Kingdom shew whether it was referred to the King's Judgment or not when 't is evident they feared the violation from no other than himself and such as he should employ I confess the Church as they then called the Clergy was fallen into such corruption that their Arms were not much to be feared by one who had his conscience clear but that could not be in the case of perjury and our Ancestors could do no better than to employ the spiritual sword reserving to themselves the use of the other in case that should be
lose by it and the Lord Chancellor Egerton told a Gentleman who desired relief against his own Deed upon an Allegation that he knew not what he did when he signed it that he did not sit to relieve fools But tho voluntary Promises or Oaths when to use the Lawyers language there is not a valuable consideration were of no obligation or that men brought by force fear or error into such Contracts as are grievous in the performance might be relieved this would not at all reach the cases of Princes in the Contracts made between them and their Subjects and confirmed by their Oaths there being no colour of force or fraud fear or error for them to alledg nor any thing to be pretended that can be grievous to perform otherwise than as it may be grievous to an ill man not to do the mischiefs he had conceived Nations according to their own will frame the Laws by which they resolve to be governed and if they do it not wisely the damage is only to themselves But 't is hard to find an example of any People that did by force oblige a man to take upon him the Government of them Gideon was indeed much pressed by the Israelites to be their King and the Army of Germanicus in a Mutiny more fiercely urged him to be Emperor but both desisted when their Offers were refused If our Kings have bin more modest and our Ancestors more pertinacious in compelling them to accept the Crowns they offer'd I shall upon proof of the matter change my opinion But till that do appear I may be pardoned if I think there was no such thing William the Norman was not by force brought into England but came voluntarily and desired to be King The Nobility Clergy and Commons proposed the Conditions upon which they would receive him These conditions were to govern according to their antient Laws especially those that had bin granted or rather collected in the time of the famous King Edward Here was neither force nor fraud if he had disliked the terms he might have retired as freely as he came But he did like them and tho he was not perhaps so modest to say with the brave Saxon King Offa Ad Libertatis vestrae tuitionem non meis meritis sed sola liberalitate vestra unanimiter me convocastis he accepted the Crown upon the conditions offer'd and swore upon the Evangelists to observe them Not much valuing this he pretended to govern according to his own will but finding the People would not endure it he renewed his Oath upon the same Evangelists and the Reliques of S. Alban which he needed not to have done but might have departed to his Dutchy of Normandy if he had not lik'd the conditions or thought not fit to observe them 'T is probable he examined the contents of Edward's Laws before he swore to them and could not imagine that a free Nation which never had any other Kings than such as had bin chosen by themselves for the preservation of their Liberty and from whose liberality the best of their Kings acknowledged the Crowns they wore did intend to give up their Persons Liberties and Estates to him who was a stranger most especially when they would not receive him till he had sworn to the same Laws by which the others had reigned of which one was as appears by the act of the Conventus Pananglicus that Reges à Sacerdotibus senioribus Populi eligantur The Kings should be elected by the Clergy and Elders of the People By these means he was advanced to the Crown to which he could have no title unless they had the right of conferring it upon him Here was therefore no force deceit or error and whatsoever equity there might be to relieve one that had bin forced frighted or circumvented it was nothing to this case We do not find that William the 2d or Henry were forced to be Kings no Sword was put to their Throats and for any thing we know the English Nation was not then so contemptible but men might have bin found in the world who would willingly have accepted the Crown and even their elder Brother Robert would not have refused but the Nobility and Commons trusting to their Oaths and Promises thought fit to prefer them before him and when he endeavoured to impose himself upon the Nation by force they so severely punished him that no better proof can be required to shew that they were accustomed to have no other Kings than such as they approved And this was one of the Customs that all their Kings swore to maintain it being as antient just and well approved as any other Having already proved that all the Kings we have had since that time have come in upon the same title that the Saxon Laws to which all have sworn continue to be of force amongst us and that the words pronounced four times on the four sides of the Scaffold by the Archbishop Will ye have this man to reign do testify it I may spare the pains of a repetition and justly conclude That if there was neither force nor fraud fear nor error to be pretended by the first there could be none in those that followed But the observation of this Oath may be grievous If I received money the last year upon Bond Promise or sale of a Mannor or Farm can it be thought grievous to me to be compelled to repay or to make over the Land according to my agreement Or if I did not seal the Bond till I had the money must not I perform the condition or at the least restore what I had received If it be grievous to any King to preserve the Liberties Lives and Estates of his Subjects and to govern according to their Laws let him resign the Crown and the People to whom the Oath was made will probably release him Others may possibly be found who will not think it grievous or if none will accept a Crown unless they may do what they please the People must bear the misfortune of being obliged to govern themselves or to institute some other sort of Magistracy that will be satisfied with a less exorbitant Power Perhaps they may succeed as well as some others have done who without being brought to that necessity have voluntarily cast themselves into the misery of living without the majestick splendor of a Monarch or if that fail they may as their last refuge surrender up themselves to Slavery When that is done we will acknowledg that whatsoever we have is derived from the favour of our Master But no such thing yet appearing amongst us we may be pardoned if we think we are Free-men governed by our own Laws and that no man has a power over us which is not given and regulated by them nor that any thing but a new Law made by our selves can exempt our Kings from the obligation of performing their Oaths taken to govern according to the old in the true
the Moors than an old Astrologer or a Child Alphonso and Sancho being dead Alphonso El Desheredado laid claim to the Crown but it was given to Ferdinand the Fourth and Alphonso with his descendents the Dukes de Medina Celi remain excluded to this day Peter sirnamed the Cruel was twice driven out of the Kingdom and at last killed by Bertrand to Guesclin Constable of France or Henry Count of Trastamara his Bastard-Brother who was made King without any regard to the Daughters of Peter or to the House of La Cerda Henry the Fourth lest a Daughter called Joan whom he declared his Heir but the Estates gave the Kingdom to Isabel his Sister and crowned her with Ferdinand of Arragon her Husband Joan Daughter to this Ferdinand and Isabel salling mad the Estates committed the care of the Government to her Father Ferdinand and after his death to Charles her Son But the French have taught us that when a King dies his next Heir is really King before he take his Oath or be crowned From them we learn that Le mort saisit le vif And yet I know no History that proves more plainly than theirs that there neither is nor can be in any man a right to the Government of a People which dos not receive its being manner and measure from the Law of that Country which I hope to justify by four Reasons 1. When a King of Pharamond's Race died the Kingdom was divided into as many parcels as he had Sons which could not have bin if one certain Heir had bin assigned by nature for he ought to have had the whole and if the Kingdom might be divided they who inhabited the several parcels could not know to whom they owed obedience till the division was made unless he who was to be King of Paris Metz Soissons or Orleans had worn the Name of his Kingdom upon his forehead But in truth if there might be a division the Doctrine is false and there was no Lord of the whole This wound will not be healed by saying The Father appointed the division and that by the Law of nature every man may dispose of his own as he thinks fit for we shall soon prove that the Kingdom of France neither was nor is disposeable as a Patrimony or Chattel Besides if that Act of Kings had bin then grounded upon the Law of nature they might do the like at this day But the Law by which such Divisions were made having bin abrogated by the Assembly of Estates in the time of Hugh Capet and never practised since it follows that they were grounded upon a temporary Law and not upon the Law of Nature which is eternal If this were not so the pretended certainty could not be for no man could know to whom the last King had bequeathed the whole Kingdom or parcels of it till the Will were opened and that must be done before such Witnesses as may deserve credit in a matter of this importance and are able to judg whether the Bequest be rightly made for otherwise no man could know whether the Kingdom was to have one Lord or many nor who he or they were to be which intermission must necessarily subvert their Polity and this Doctrine But the truth is the most Monarchical men among them are so far from acknowledging any such right to be in the King of alienating bequeathing or dividing the Kingdom that they do not allow him the right of making a Will and that of the last King Lewis the 13th touching the Regency during the minority of his Son was of no effect 2. This matter was made more clear under the second race If a Lord had bin assigned to them by nature he must have bin of the Royal Family But Pepin had no other Title to the Crown except the merits of his Father and his own approved by the Nobility and People who made him King He had three sons the eldest was made King of Italy and dying before him lest a Son called Bernard Heir of that Kingdom The Estates of France divided what remained between Charles the Great and Carloman The last of these dying in few years left many Sons but the Nobility made Charles King of all France and he dispossessed Bernard of the Kingdom of Italy inherited from his Father so that he also was not King of the whole before the expulsion of Bernard the Son of his elder Brother nor of Aquitain which by inheritance should have belonged to the Children of his younger Brother any otherwise than by the will of the Estates Lewis the Debonair succeeded upon the same title was deposed and put into a Monastery by his three Sons Lothair Pepin and Lewis whom he had by his first Wife But tho these lest many Sons the Kingdom came to Charles the Bald. The Nobility and People disliking the eldest Son of Charles gave the Kingdom to Lewis le Begue who had a legitimate Son called Charles le Simple and two Bastards Lewis and Carloman who were made Kings Carloman had a Son called Lewis le faineant he was made King but afterwards deposed for his vicious Lise Charles le Gros succeeded him but for his ill Government was also deposed and Odo who was a stranger to the Royal Blood was made King The same Nobility that had made five Kings since Lewis le Begue now made Charles le Simple King who according to his name was entrapped at Peronne by Ralph Duke of Burgundy and forced to resign his Crown leaving only a Son called Lewis who fled into England Ralph being dead they took Lewis sirnamed Outremer and placed him in the Throne he had two Sons Lothair and Charles Lothair succeeded him and died without Issue Charles had as fair a title as could be by Birth and the Estates confessed it but their Ambassadors told him that he having by an unworthy Life render'd himself unworthy of the Crown they whose principal care was to have a good Prince at the head of them had chosen Hugh Capet and the Crown continues in his race to this day tho not altogether without interruption Robert Son to Hugh Capet succeeded him He left two Sons Robert and Henry but Henry the younger Son appearing to the Estates of the Kingdom to be more fit to reign than his elder Brother they made him King Robert and his descendents continuing Dukes of Burgundy only for about ten Generations at which time his Issue Male failing that Dutchy returned to the Crown during the Life of King John who gave it to his second Son Philip for an Apannage still depending upon the Crown The same Province of Burgundy was by the Treaty of Madrid granted to the Emperor Charles the fifth by Francis the first but the People resused to be alienated and the Estates of the Kingdom approved their refusal By the same Authority Charles the 6th was removed from the Government when he appeared to be mad and other examples of a like nature
may be alledged From which we may safely conclude that if the death of one King do really invest the next Heir with the Right and Power or that he who is so invested be subject to no Law but his own Will all matters relating to that Kingdom must have bin horribly confused during the reigns of 22 Kings of Pharamonds race they can have had no rightful King from the death of Chilperic to King John and the Succession since that time is very liable to be questioned if not utterly overthrown by the house of Austria and others who by the Counts of Hapsburg derive their Descent from Pharamond and by the house of Lorrain claiming from Charles who was excluded by Capet all which is most absurd and they who pretend it bring as much confusion into their own Laws and upon the Polity of their own Nation as shame and guilt upon the memory of their Ancestors who by the most extreme injustice have rejected their natural Lord or dispossessed those who had bin in the most solemn manner placed in the Government and to whom they had generally sworn Allegiance 3. If the next Heir be actually King seized of the power by the death of his Predecessor so that there is no intermission then all the Solemnities and religious Ceremonies used at the Coronations of their Kings with the Oaths given and taken are the most profane abuses of sacred things in contempt of God and Man that can be imagined most especially if the Act be as our Author calls it voluntary and the King receiving nothing by it be bound to keep it no longer than he pleases The Prince who is to be sworn might spare the pains of watching all night in the Church fasting praying confessing communicating and swearing that he will to the utmost of his power defend the Clergy maintain the union of the Church obviate all excess rapine extortion and iniquity take care that in all judgments Justice may be observed with Equity and Mercy c. or of invoking the assistance of the Holy Ghost for the better performance of his Oath and without ceremony tell the Nobility and People that he would do what he thought fit 'T were to as little purpose for the Archbishop of Rheims to take the trouble of saying Mass delivering to him the Crown Scepter and other ensigns of Royalty explaining what is signified by them anointing him with the Oil which they say was deliver'd by an Angel to St. Remigius blessing him and praying to God to bless him if he rightly performed his Oath to God and the People and denouncing the contrary in case of failure on his part if these things conferred nothing upon him but what he had before and were of no obligation to him Such ludifications of the most sacred things are too odious and impious to be imputed to Nations that have any virtue or profess Christianity This cannot fall upon the French and Spaniards who had certainly a great zeal to Religion whatever it was and were so eminent for moral Virtues as to be a reproach to us who live in an Age of more Knowledg But their meaning is so well declared by their most solemn Acts that none but those who are wilfully ignorant can mistake One of the Councils held at Toledo declared by the Clergy Nobility and others assisting That no man should be placed in the Royal Seat till he had sworn to preserve the Church c. Another held in the same place signified to Sisinandus who was then newly crown'd That if he or any of his Successors should contrary to their Oaths and the Laws of their Country proudly and cruelly presume to exercise Domination over them he should be excommunicated and separated from Christ and them to eternal judgment The French Laws and their best Writers asserting the same things are confirmed by perpetual practice Henry of Navarr tho certainly according to their Rules and in their esteem a most accomplish'd Prince was by two General Assemblies of the Estates held at Blois deprived of the Succession for being a Protestant and notwithstanding the greatness of his Reputation Valour Victories and Affability could never be admitted till he had made himself capable of the ceremonies of his Coronation by conforming to the Religion which by the Oath he was to defend Nay this present King tho haughty enough by nature and elevated by many successes has acknowledged as he says with joy that he can do nothing contrary to Law and calls it a happy impotence in pursuance of which he has annulled many Acts of his Father and Grandfather alienating the demeasnes of the Crown as things contrary to Law and not within their power These things being confirmed by all the good Authors of that Nation Filmer finds only the worst to be fit for his turn and neither minding Law nor History takes his Maxims from a vile flattering discourse of Bellay calculated for the personal interest of Henry the fourth then King of Navarr in which he says That the Heir apparent tho furious mad a fool vicious and in all respects abominably wicked must be admitted to the Crown But Bellay was so far from attaining the ends designed by his Book that by such Doctrines which filled all men with horror he brought great prejudice to his Master and procured little favour from Henry who desired rather to recommend himself to his People as the best man they could set up than to impose a necessity upon them of taking him if he had bin the worst But our Author not contented with what this Sycophant says in relation to such Princes as are placed in the Government by a Law establishing the Succession by inheritance with an impudence peculiar to himself asserts the same right to be in any man who by any means gets into Power and imposes the same necessity of obedience upon the Subject where there is no Law as Bellay dos by virtue of one that is established 4. In the last place As Bellay acknowledges that the right belongs to Princes only where 't is established by Law I deny that there is was or ever can be any such No People is known to have bin so mad or wicked as by their own consent for their own good and for the obtaining of Justice to give the power to Beasts under whom it could never be obtain'd or if we could believe that any had bin guilty of an act so full of folly turpitude and wickedness it could not have the force of a Law and could never be put in execution for tho the rules by which the proximity should be judged be never so precise it will still be doubted whose case sutes best with them Tho the Law in some places gives private Inheritances to the next Heir and in others makes allotments according to several proportions no one knows to whom or how far the benefit shall accrue to any man till it be adjudged by a Power to which the parties
most conducing to the good ends to which it was directed As Governments were instituted for the obtaining of Justice and as our Author says the preservation of Liberty we are not to seek what Government was the first but what best provides for the obtaining of Justice and preservation of Liberty For whatsoever the Institution be and how long soever it may have lasted 't is void if it thwarts or do not provide for the ends of its establishment If such a Law or Custom therefore as is not good in it self had in the beginning prevailed in all parts of the world which in relation to absolute or any kind of Monarchy is not true it ought to be abolished and if any man should shew himself wiser than others by proposing a Law or Government more beneficial to mankind than any that had bin formerly known providing better for Justice and Liberty than all others had done he would merit the highest veneration If any man ask who shall be Judg of that rectitude or pravity which either authorises or destroys a Law I answer that as this consists not in formalities and niceties but in evident and substantial truths there is no need of any other Tribunal than that of common sense and the light of nature to determine the matter and he that travels through France Italy Turky Germany and Switzerland without consulting Bartolus or Baldus will easily understand whether the Countries that are under the Kings of France and Spain the Pope and the Great Turk or such as are under the care of a well-regulated Magistracy do best enjoy the benefits of Justice and Liberty 'T is as easily determined whether the Grecians when Athens and Thebes flourished were more free than the Medes whether Justice was better administred by Agathocles Dionysius and Phalaris than by the legal Kings and regular Magistrates of Sparta or whether more care was taken that Justice and Liberty might be preserved by Tiberius Caligula Claudius Nero and Vitellius than by the Senate and People of Rome whilst the Laws were more powerful than the commands of men The like may be said of particular Laws as those of Nabuchodonosor and Caligula for worshipping their Statues our Acts of Parliament against Hereticks and Lollards with the Statutes and Orders of the Inqusition which is called the Holy Office And if that only be a Law which is Sanctio recta jubens honesta prohibens contraria the meanest understanding if free from passion may certainly know that such as these cannot be Laws by what Authority soever they were enacted and that the use of them and others like to them ought to be abolished for their turpitude and iniquity Infinite examples of the like nature might be alledged as well concerning divine as human things And if there be any Laws which are evil there cannot be an incontestable rectitude in all and if not in all it concerns us to examine where it is to be sound Laws and Constitutions ought to be weighed and whilst all due reverence is paid to such as are good every Nation may not only retain in it self a power of changing or abolishing all such as are not so but ought to exercise that Power according to the best of their understanding and in the place of what was either at first mistaken or afterwards corrupted to constitute that which is most conducing to the establishment of Justice and Liberty But such is the condition of mankind that nothing can be so perfectly framed as not to give some testimony of human imbecility and frequently to stand in need of reparations and amendments Many things are unknown to the wisest and the best men can never wholly devest themselves of passions and affections By this means the best and wisest are sometimes led into Error and stand in need of Successors like to themselves who may find remedies for the faults they have committed and nothing can or ought to be permanent but that which is perfect No natural body was ever so well temper'd and organiz'd as not to be subject to diseases wounds or other accidents and to need medicines and other occasional helps as well as nourishment and exercise and he who under the name of Innovation would deprive Nations of the like dos as much as lies in him condemn them all to perish by the defects of their own foundations Some men observing this have proposed a necessity of reducing every State once in an age or two to the integrity of its first principle but they ought to have examined whether that principle be good or evil or so good that nothing can be added to it which none ever was and this being so those who will admit of no change would render Errors perpetual and depriving Mankind of the benefits of Wisdom Industry Experience and the right use of Reason oblige all to continue in the miserable barbarity of their Ancestors which sutes better with the name of a Wolf than that of a Man Those who are of better understanding weigh all things and often find reason to abrogate that which their fathers according to the measure of the knowledge they had or the state of things among them had rightly instituted or to restore that which they had abrogated and there can be no greater mark of a most brutish stupidity than for men to continue in an evil way because their fathers had brought them into it But if we ought not too strictly to adhere to our own Constitutions those of other Nations are less to be regarded by us for the Laws that may be good for one People are not for all and that which agrees with the manners of one Age is utterly abhorrent from those of another It were absurd to think of restoring the Laws of Lycurgus to the present inhabitants of Peloponesus who are accustomed to the most abject slavery It may easily be imagined how the Romans Sabins and Latins now under the tyranny of the Pope would relish such a discipline as flourished among them after the expulsion of the Tarquins and it had bin no less preposterous to give a liberty to the Parthians of governing themselves or for them to assume it than to impose an absolute Monarch upon the German Nation Titus Livius having observed this says that if a popular Government had bin set up in Rome immediately upon the building of the City and if that fierce people which was composed of unruly shepherds herdsmen sugitive slaves and out-law'd persons who could not suffer the Governments under which they were born had come to be incited by turbulent Orators they would have brought all into consusion whereas that boisterous humour being gradually temper'd by discipline under Romulus or taught to vent its sury against foreign enemies and soften'd by the peaceable reign of Numa a new Race grew up which being all of one blood contracted a love to their Country and became capable of Liberty which the madness of their last King and the lewdness of
ready to use it and their extravagances having bin often chastised by Law sufficiently proves that their power is not derived from a higher original than the Law of their own Countries If it were true that the answer sometimes given by Kings to Bills presented for their Assent did as our Author says amount to a denial it could only shew that they have a negative voice upon that which is agreed by the Parliament and is far from a power of acting by themselves being only a check upon the other parts of the Government But indeed it is no more than an elusion and he that dos by art obliquely elude confesses he has not a right absolutely to refuse 'T is natural to Kings especially to the worst to scrue up their Authority to the height and nothing can more evidently prove the defect of it than the necessity of having recourse to such pitiful evasions when they are unwilling to do that which is required But if I should grant that the words import a denial and that notwithstanding those of the Coronation Oath Quas vulgus elegerit they might deny no more could be inferred from thence than that they are entrusted with a power equal in that point to that of either House and cannot be supreme in our Author's sense unless there were in the same State at the same time three distinct supreme and absolute Powers which is absurd His cases relating to the proceedings of the Star-Chamber and Council-Table do only prove that some Kings have encroached upon the rights of the Nation and bin suffer'd till their excesses growing to be extreme they turn'd to the ruin of the Ministers that advised them and sometimes of the Kings themselves But the jurisdiction of the Council having bin regulated by the Statute of the 17 Car. 1. and the Star-Chamber more lately abolished they are nothing to our dispute Such as our Author usually impute to treason and rebellion the changes that upon such occasions have ensued but all impartial men do not only justify them but acknowledg that all the Crowns of Europe are at this day enjoy'd by no other title than such acts solemnly performed by the respective Nations who either disliking the person that pretended to the Crown tho next in blood or the government of the present possessor have thought fit to prefer another person or family They also say that as no Government can be so perfect but some defect may be originally in it or afterwards introduced none can subsist unless they be from time to time reduced to their first integrity by such an exertion of the power of those for whose sake they were instituted as may plainly shew them to be subject to no power under Heaven but may do whatever appears to be for their own good And as the safety of all Nations consists in rightly placing and measuring this power such have bin found always to prosper who have given it to those from whom usurpations were least to be feared who have bin least subject to be awed cheated or corrupted and who having the greatest interest in the Nation were most concerned to preserve its power liberty and welfare This is the greatest trust that can be reposed in men This power was by the Spartans given to the Ephori and the Senat of twenty eight in Venice to that which they call Concilio de Pregadi in Germany Spain France Sweedland Denmark Poland Hungary Bohemia Scotland England and generally all the Nations that have lived under the Gothick Polity it has bin in their General Assemblies under the names of Diets Cortez Parliaments Senats and the like But in what hands soever it is the power of making abrogating changing correcting and interpreting Laws has bin in the same Kings have bin rejected or deposed the Succession of the Crown settled regulated or changed and I defy any man to shew me one King amongst all the Nations abovementioned that has any right to the Crown he wears unless such acts are good If this power be not well placed or rightly proportioned to that which is given to other Magistrates the State must necessarily fall into great disorders or the most violent and dangerous means must be frequently used to preserve their Liberty Sparta and Venice have rarely bin put to that trouble because the Senats were so much above the Kings and Dukes in power that they could without difficulty bring them to reason The Gothick Kings in Spain never ventur'd to dispute with the Nobility and Witza and Rodrigo exposed the Kingdom as a prey to the Moors rather by weakning it through the neglect of Military discipline joined to their own ignorance and cowardice and by evil example bringing the youth to resemble them in lewdness and baseness than by establishing in themselves a power above the Law But in England our Ancestors who seem to have had some such thing in their eye as balancing the powers by a fatal mistake placed usually so much in the hands of the King that whensoever he happened to be bad his extravagances could not be repress'd without great danger And as this has in several ages cost the Nation a vast proportion of generous blood so 't is the cause of our present difficulties and threatens us with more but can never deprive us of the rights we inherit from our fathers SECT XXVIII The English Nation has always bin governed by it self or its Representatives HAVING proved that the People of England have never acknowledged any other human Law than their own and that our Parliaments having the power of making and abrogating Laws they only can interpret them and decide hard cases it plainly appears there can be no truth in our Author's assertion that the King is the Author Corrector and Moderator of both Statute and Common Law and nothing can be more frivolous than what he adds that neither of them can be a diminution of that natural power which Kings have over their People as fathers in as much as the differences between paternal and monarchical Power as he asserts it are vast and irreconcileable in principle and practice as I have proved at large in the former parts of this Work But lest we should be too proud of the honour he is pleased to do to our Parliaments by making use of their Authority he says We are first to remember that till the Conquest which name for the glory of our Nation he gives to the coming in of the Normans there could be no Parliament assembled of the General States because we cannot learn that until those days it was intirely united in one Secondly he doubts Whether the Parliament in the time of the Saxons were composed of the Nobility and Clergy or whether the Commons were also called but concludes there could be no Knights of any Shires because there were no Shires Thirdly That Henry the first caused the Commons first to assemble Knights and Burgesses of their own chusing and would make this to be an act
Constitutions than that they who made them would have it so which could not be if God and Nature had appointed one general Rule for all Nations For in that case the Kingdom of France must be elective as well as that of Poland and the Empire or the Empire and Poland hereditary as that of France Daughters must succeed in France as well as in England or be excluded in England as in France and he that would establish one as the Ordinance of God and Nature must necessarily overthrow all the rest A farther exercise of the natural Liberty of Nations is discovered in the several limitations put upon the Sovereign Power Some Kings says Grotius have the summum Imperium summo modo others modo non summo and amongst those that are under limitations the degrees as to more or less are almost infinite as I have proved already by the example of Arragon antient Germany the Saxon Kings the Normans the Kings of Castille the present Empire with divers others And I may safely say that the antient Government of France was much of the same nature to the time of Charles the 7th and Lewis the 11th but the work of emancipating themselves as they call it begun by them is now brought to perfection in a boundless elevation of the King's greatness and riches to the unspeakable misery of the people 'T were a folly to think this variety proceeds from the concessions of Kings who naturally delight in Power and hate that which crosses their will It might with more reason be imagined that the Roman Consuls who were brought up in liberty who had contracted a love to their Country and were contented to live upon an equal foot with their fellow Citizens should confine the power of their Magistracy to a year or that the Dukes of Venice should be graciously pleased to give power to the Council of Ten to punish them capitally if they transgressed the Laws than that Kings should put such Fetters upon their power which they so much abhor or that they would suffer them if they could be easily broken If any one of them should prove so moderate like Trajan to command the Prefect of the Pretorian Guard to use the Sword for him if he governed well and against him if he did not it would soon be rescinded by his Successor the Law which has no other strength than the act of one man may be annulled by another So that nothing dos more certainly prove that the Laws made in several Countries to restrain the Power of Kings and variously to dispose of the Succession are not from them than the frequent examples of their fury who have exposed themselves to the greatest dangers and brought infinite miseries upon the people through the desire of breaking them It must therefore be concluded that Nations have power of meeting together and of conferring limiting and directing the Sovereignty or all must be grounded upon most manifest Injustice and Usurpation No man can have a power over a Nation otherwise than de jure or de facto He who pretends to have a power de jure must prove that it is originally inherent in him or his predecessor from whom he inherits or that it was justly acquired by him The vanity of any pretence to an original Right appears sufficiently I hope from the proofs already given that the first Fathers of Mankind had it not or if they had no man could now inherit the same there being no man able to make good the Genealogy that should give him a right to the Succession Besides the facility we have of proving the beginnings of all the Families that reign among us makes it as absurd for any of them to pretend a perpetual right to Dominion as for any Citizen of London whose parents and birth we know to say he is the very man Noah who lived in the time of the Flood and is now four or five thousand years old If the power were conferred on him or his Predecessors 't is what we ask for the collation can be of no value unless it be made by those who had a right to do it and the original right by Descent failing no one can have any over a sree People but themselves or those to whom they have given it If acquisition be pretended 't is the same thing for there can be no right to that which is acquired unless the right of invading be proved and that being done nothing can be acquired except what belonged to the person that was invaded and that only by him who had the right of invading No man ever did or could conquer a Nation by his own strength no man therefore could ever acquire a personal right over any and if it was conferr'd upon him by those who made the conquest with him they were the People that did it He can no more be said to have the right originally in and from himself than a Magistrate of Rome or Athens immediately after his creation and having no other at the beginning he can have none to eternity for the nature of it must refer to the original and cannot be changed by time Whatsoever therefore proceeds not from the consent of the People must be de facto only that is void of all right and 't is impossible there should not be a right of destroying that which is grounded upon none and by the same rule that one man enjoys what he gained by violence another may take it from him Cyrus overthrew the Assyrians and Babylonians Alexander the Medes and Persians and if they had no right of making war upon those Nations the Nations could not but have a right of recovering all that had bin unjustly taken from them and avenging the evils they had suffered If the cause of the war was originally just and not corrupted by an intemperate use of the victory the conquer'd People was perhaps obliged to be quiet but the conquering Armies that had conferred upon their Generals what they had taken from their enemies might as justly expect an account of what they had given and that it should be imploy'd according to the intention of the givers as the People of any City might do from their regularly created Magistrates because it was as impossible for Cyrus Alexander or Cesar to gain a power over the Armies they led without their consent as for Pericles Valerius or any other disarmed Citizen to gain more power in their respective Cities than was voluntarily conferr'd upon them And I know no other difference between Kingdoms so constituted by conquering Armies and such as are established in the most orderly manner than that the first usually incline more to war and violence the latter to justice and peace But there have not bin wanting many of the first sort especially the Nations coming from the North who were no less exact in ordaining that which tended to the preservation of Liberty nor less severe in seeing it punctually performed than the
of late bin given to Monk and his honourable Dutchess New phrases have bin invented to please Princes or the sense of the old perverted as has happen'd to that of Le Roy s'avisera And that which was no more than a Liberty to consult with the Lords upon a Bill presented by the Commons is by some men now taken for a Right inherent in the King of denying such Bills as may be offer'd to him by the Lords and Commons tho the Coronation Oath oblige him to hold keep and defend the just Laws and Customs quas vulgus elegerit And if a stop be not put to this exorbitant abuse the words still remaining in Acts of Parliament which shew that their Acts are our Laws may perhaps be also abolished But tho this should come to pass by the slackness of the Lords and Commons it could neither create a new Right in the King nor diminish that of the People But it might give a better colour to those who are Enemies to their Country to render the Power of the Crown arbitrary than any thing that is yet among us SECT XXXV The Authority given by our Law to the Acts performed by a King de facto detract nothing from the peoples right of creating whom they please THEY who have more regard to the prevailing Power than to Right and lay great weight upon the Statute of Henry the seventh which authorizes the Acts of a King de facto seem not to consider that thereby they destroy all right of Inheritance that he only is King de facto who is received by the People and that this reception could neither be of any value in it self nor be made valid by a Statute unless the People and their Representatives who make the Statute had in themselves the power of receiving authorizing and creating whom they please For he is not King de facto who calls himself so as Perkin or Simnel but he who by the consent of the Nation is possess'd of the Regal Power If there were such a thing in nature as a natural Lord over every Country and that the right must go by descent it would be impossible for any other man to acquire it or for the people to confer it upon him and to give the Authority to the Acts of one who neither is nor can be a King which belongs only to him who has the right inherent in himself and inseparable from him Neither can it be denied that the same power which gives the validity to such Acts as are performed by one who is not a King that belongs to those of a true King may also make him King for the essence of a King consists in the validity of his Acts. And 't is equally absurd for one to pretend to be a King whose Acts as King are not valid as that his own can be valid if those of another are for then the same indivisible Right which our Author and those of his principles assert to be inseparable from the Person would be at the same time exercised and enjoyed by two distinct and contrary Powers Moreover it may be observed that this Statute was made after frequent and bloody Wars concerning Titles to the Crown and whether the cause were good or bad those who were overcome were not only subject to be killed in the field but afterwards to be prosecuted as Traitors under the colour of Law He who gained the Victory was always set up to be King by those of his party and he never failed to proceed against his Enemies as Rebels This introduced a horrid series of the most destructive mischiefs The fortune of War varied often and I think it may be said that there were few if any great Families in England that were not either destroy'd or at least so far shaken as to lose their Chiefs and many considerable branches of them And experience taught that instead of gaining any advantage to the Publick in point of Government he for whom they fought seldom proved better than his Enemy They saw that the like might again happen tho the title of the reigning King should be as clear as descent of blood could make it This brought things into an uneasy posture and 't is not strange that both the Nobility and Commonalty should be weary of it No Law could prevent the dangers of battel for he that had followers and would venture himself might bring them to such a decision as was only in the hand of God But thinking no more could justly be required to the full performance of their Duty to the King than to expose themselves to the hazard of battel for him and not being answerable for the success they would not have that Law which they endeavour'd to support turned to their destruction by their Enemies who might come to be the interpreters of it But as they could be exempted from this danger only by their own Laws which could authorize the Acts of a King without a Title and justify them for acting under him 't is evident that the power of the Law was in their hands and that the acts of the person who enjoyed the Crown were of no value in themselves The Law had bin impertinent if it could have bin done without Law and the Intervention of the Parliament useless if the Kings de facto could have given authority to their own Acts. But if the Parliament could make that to have the effect of Law which was not Law and exempt those that acted according to it from the penalties of the Law and give the same force to the Acts of one who is not King as of one who is they cannot but have a power of making him to be King who is not so that is to say all depends intirely upon their Authority Besides he is not King who assumes the title to himself or is set up by a corrupt party but he who according to the usages required in the case is made King If these are wanting he is neither de facto nor de jure but Tyrannus sine titulo Nevertheless this very man if he comes to be received by the People and placed in the Throne he is thereby made King de facto His Acts are valid in Law the same service is due to him as to any other they who render it are in the same manner protected by the Law that is to say he is truly King If our Author therefore do allow such to be Kings he must confess that power to be good which makes them so when they have no right in themselves If he deny it he must not only deny that there is any such thing as a King de facto which the Statute acknowledges but that we ever had any King in England for we never had any other than such as I have proved before By the same means he will so unravel all the Law that no man shall know what he has or what he ought to do or avoid and will find no
force or fraud to usurp a Power of imposing what they pleased Others being sottish cowardly and base have so far erred in the Foundations as to give up themselves to the will of one or few men who turning all to their own profit or pleasure have bin just in nothing but in using such a people like beasts Some have placed weak defences against the lusts of those they have advanced to the highest places and given them opportunities of arrogating more power to themselves than the Law allows Where any of these errors are committed the Government may be easy for a while or at least tolerable whilst it continues uncorrupted but it cannot be lasting When the Law may be easily or safely overthrown it will be attempted Whatever virtue may be in the first Magistrates many years will not pass before they come to be corrupted and their Successors deflecting from their integrity will seize upon the ill-guarded prey They will then not only govern by will but by that irregular will which turns the Law that was made for the publick good to the privat advantage of one or few men 'T is not my intention to enumerate the several ways that have been taken to effect this or to shew what Governments have deflected from the right and how far But I think I may justly say that an Arbitrary Power was never well placed in any men and their Successors who were not obliged to obey the Laws they should make This was well understood by our Saxon Ancestors They made Laws in their Assemblies and Councils of the Nation but all those who proposed or assented to those Laws as soon as the Assembly was dissolved were comprehended under the power of them as well as other men They could do nothing to the prejudice of the Nation that would not be as hurtful to those who were present and their posterity as to those who by many accidents might be absent The Normans enter'd into and continued in the same path Our Parliaments at this day are in the same condition They may make prejudicial Wars ignominious Treaties and unjust Laws Yet when the Session is ended they must bear the burden as much as others and when they die the teeth of their Children will be set an edg with the sower Grapes they have eaten But 't is hard to delude or corrupt so many Men do not in matters of the highest importance yield to slight temptations No man serves the Devil sor nothing Small wages will not content those who expose themselves to perpetual infamy and the hatred of a Nation for betraying their Country Our Kings had not wherewithal to corrupt many till these last twenty years and the treachery of a few was not enough to pass a Law The union of many was not easily wrought and there was nothing to tempt them to endeavour it for they could make little advantage during the Session and were to be lost in the mass of the people and prejudiced by their own Laws as soon as it was ended They could not in a short time reconcile their various interests or passions so as to combine together against the publick and the former Kings never went about it We are beholden to H-de Cl-ff-rd and D-nby for all that has bin done of that kind They found a Parliament full of lewd young men chosen by a furious people in spite to the Puritans whose severity had distasted them The weakest of all Ministers had wit enough to understand that such as these might be easily deluded corrupted or bribed Some were fond of their Seats in Parliament and delighted to domineer over their Neighbours by continuing in them Others prefer'd the cajoleries of the Court before the honour of performing their duty to the Country that employ'd them Some sought to relieve their ruined Fortunes and were most forward to give the King a vast Revenue that from thence they might receive Pensions others were glad of a temporary protection against their Creditors Many knew not what they did when they annulled the Triennial Act voted the Militia to be in the King gave him the Excise Customs and Chimney-mony made the Act for Corporations by which the greatest part of the Nation was brought under the power of the worst men in it drunk or sober pass'd the five mile Act and that for Uniformity in the Church This embolden'd the Court to think of making Parliaments to be the instruments of our Slavery which had in all Ages past bin the firmest pillars of our Liberty There might have bin perhaps a possibility of preventing this pernicious mischief in the Constitution of our Government But our brave Ancestors could never think their Posterity would degenerate into such baseness to sell themselves and their Country but how great soever the danger may be 't is less than to put all into the hands of one man and his Ministers the hazard of being ruin'd by those who must perish with us is not so much to be feared as by one who may enrich and strengthen himself by our destruction 'T is better to depend upon those who are under a possibility of being again corrupted than upon one who applies himself to corrupt them because he cannot otherwise accomplish his designs It were to be wished that our security were more certain but this being under God the best Anchor we have it deserves to be preserved with all care till one of a more unquestionable strength be framed by the consent of the Nation SECT XLVI The coercive power of the Law proceeds from the Authority of Parliament HAVING proved that Proclamations are not Laws and that the Legislative Power which is arbitrary is trusted only in the hands of those who are bound to obey the Laws that are made 't is not hard to discover what it is that gives the power of Law to the Sanctions under which we live Our Author tell us that all Statutes or Laws are made properly by the King alone at the Rogation of the People as his Majesty King James of happy Memory affirms in his true Law of free Monarchy and as Hooker teaches us That Laws do not take their constraining power from the quality of such as devise them but from the power that giveth them the strength of Law But if the Rogation of the People be necessary that cannot be a Law which proceeds not from their Rogation the power therefore is not alone in the King for a most important part is confessed to be in the People And as none could be in them if our Author's Proposition or the Principles upon which it is grounded were true the acknowledgment of such a part to be in the People shews them to be false For if the King had all in himself none could participate with him if any do participate he hath not all and 't is from that Law by which they do participate that we are to know what part is left to him The preambles of most Acts of Parliaments
and good or to subject the best to the rage of the worst If there be any Family therefore in the world that can by the Law of God and Nature distinct from the Ordinance of Man pretend to an hereditary Right of Dominion over any People it must be one that never did and never can produce any person that is not free from all the Infirmities and Vices that render him unable to exercise the Sovereign Power and is endowed with all the Vertues required to that end or at least a promise from God verified by experience that the next in Blood shall ever be able and fit for that work But since we do not know that any such hath yet appeared in the World we have no reason to believe that there is or ever was any such and consequently none upon whom God hath conferred the Rights that cannot be exercised without them If there was no shadow of a Paternal Right in the Institution of the Kingdoms of Saul and David there could be none in those that succeeded Rehoboam could have no other than from Solomon When he reigned over two Tribes and Jeroboam over ten 't is not possible that both of them could be the next Heir of their last common Father Jacob and 't is absurd to say that ought to be reputed which is impossible for our thoughts are ever to be guided by Truth or such an appearance of it as doth perswade or convince us The same Title of Father is yet more ridiculously or odiously applied to the succeeding Kings Baasha had no other Title to the Crown than by killing Nadab the Son of Jeroboam and destroying his Family Zimri purchased the same honour by the slaughter of Elah when he was drunk and dealing with the House of Baasha as he had done with that of Jeroboam Zimri burning himself transferred the same to Omri as a reward for bringing him to that extremity As Jehu was more fierce than these he seems to have gained a more excellent recompence than any since Jeroboam even a conditional Promise of a perpetual Kingdom but falling from these glorious Privileges purchased by his zeal in killing two wicked Kings and above one hundred of their Brethren Shallum inherited them by destroying Zachary and all that remained of his Race This in plain English is no less than to say that whosoever kills a King and invades a Crown tho the act and means of accomplishing it be never so detestable dos thereby become Father of his Country and Heir of all the divine Privileges annexed to that glorious Inheritance And tho I cannot tell whether such a Doctrine be more sottish monstrous or impious I dare affirm that if it were received no King in the World could think himself safe in his Throne for one day They are already encompassed with many dangers but lest Pride Avarice Ambition Lust Rage and all the Vices that usually reign in the hearts of worldly men should not be sufficient to invite them perpetually to disturb Mankind through the desire of gaining the Power Riches and Splendor that accompanies a Crown our Author proposes to them the most sacred Privileges as a reward of the most execrable Crimes He that was stirred up only by the violence of his own Nature thought that a Kingdom could never be bought at too dear a rate Pro Regno velim Patriam Penates conjugem flammis dare Imperia precio quolibet constant bene Senec. Theb. But if the sacred Character of God's Anointed or Vicegerent and Father of a Country were added to the other Advantages that follow the highest Fortunes the most modest and just men would be filled with fury that they might attain to them Nay it may be even the best would be the most forward in conspiring against such as reigned They who could not be tempted with external Pleasures would be most in love with divine Privileges and since they should become the sacred Ministers of God if they succeeded and Traitors or Rogues only if they miscarried their only care would be so to lay their Designs that they might be surely executed This is a Doctrine worthy of Filmer's Invention and Heylin's Approbation which being well weighed will shew to all good and just Kings how far they are obliged to those who under pretence of advancing their Authority fill the minds of men with such Notions as are so desperately pernicious to them SECT XVI The Antients chose those to be Kings who excelled in the Vertues that are most beneficial to Civil Societies IF the Israelites whose Lawgiver was God had no King in the first Institution of their Government 't is no wonder that other Nations should not think themselves obliged to set up any if they who came all of one stock and knew their Genealogies when they did institute Kings had no regard to our Author 's Chimerical right of Inheritance nor were taught by God or his Prophets to have any 't is not strange that Nations who did not know their own Original and who probably if not certainly came of several Stocks never put themselves to the trouble of seeking one who by his birth deserved to be preferred before others and if the various Changes happening in all Kingdoms whereby in process of time the Crowns were transported into divers Families to which the Right of Inheritance could not without the utmost impiety and madness be imputed such a fancy certainly could only enter into the heads of Fools and we know of none so foolish to have harbour'd it The Grecians amongst others who sollowed the Light of Reason knew no other original Title to the Government of a Nation than that Wisdom Valour and Justice which was beneficial to the People These Qualities gave beginning to those Governments which we call Heroum Regna and the veneration paid to such as enjoyed them proceeded from a grateful sense of the good received from them They were thought to be descended from the Gods who in vertue and beneficence surpassed other men The same attended their Descendents till they came to abuse their Power and by their Vices shewed themselves like to or worse than others Those Nations did not seek the most antient but the most worthy and thought such only worthy to be preferred before others who could best perform their Duty The Spartans knew that Hercules and Achilles were not their Fathers for they were a Nation before either of them were born but thinking their Children might be like to them in valour they brought them from Thebes and Epirus to be their Kings If our Author is of another opinion I desire to know whether the Heraclidae or the AEacidae were or ought to be reputed Fathers of the Lacedemonians for if the one was the other was not The same method was followed in Italy and they who esteemed themselves Aborigines Qui rupto robore nati Compositive Luto nullos habuere parentes Juven Sat. 6. could not set up one to govern them under the Title of
or Fraud Or is it possible that any one man can make himself Lord of a People or parcel of that Body to whom God had given the liberty of governing themselves by any other means than Violence or Fraud unless they did willingly submit to him If this Right be not devolved upon any one Man is not the invasion of it the most outragious Injury that can be done to all Mankind and most particularly to the Nation that is enslaved by it Or if the Justice of every Government depends necessarily upon an original Grant and a Succession certainly deduced from our first Fathers dos not he by his own Principles condemn all the Monarchies of the World as the most detestable Usurpations since not one of them that we know do any way pretend to it Or tho I who deny any Power to be just that is not founded upon consent may boldly blame Usurpation is it not an absurd and unpardonable impudence in Filmer to condemn Userpation in a People when he has declared that the Right and Power of a Father may be gained by Usurpation and that Nations in their Obedience are to regard the Power not the Means by which it was gained But not to lose more time upon a most frivolous fiction I affirm that the Liberty which we contend for is granted by God to every man in his own Person in such a manner as may be useful to him and his Posterity and as it was exercised by Noah Shem Abraham Isaac Jacob c. and their Children as has bin proved and not to the vast Body of all Mankind which never did meet together since the first Age after the Flood and never could meet to receive any benefit by it His next Question deserves scorn and hatred with all the effects of either if it proceed from malice tho perhaps he may deserve compassion if his Crime proceed from ignorance Was a general Meeting of a whole Kingdom says he ever known for the Election of a Prince But if there never was any general Meetings of whole Nations or of such as they did delegate and entrust with the Power of the whole how did any man that was elected come to have a Power over the whole Why may not a People meet to chuse a Prince as well as any other Magistrate Why might not the Athenians Romans or Carthaginians have chosen Princes as well as Archons Consuls Dictators or Suffetes if it had pleased them Who chose all the Roman Kings except Tarquin the proud if the People did not since their Histories testify that he was the first who took upon him to reign sine jussu populi Who ever heard of a King of the Goths in Spain that was not chosen by the Nobility and People Or how could they chuse him if they did not meet in their Persons or by their Deputies which is the same thing when a People has agreed it should be so How did the Kings of Sweden come by their Power unless by the like Election till the Crown was made hereditary in the time of Gustavus the First as a Reward of his Vertue and Service in delivering that Country from the Tyranny of the Danes How did Charles Gustavus come to be King unless it was by the Election of the Nobility He acknowledged by the Act of his Election and upon all occasions that he had no other right to the Crown than what they had conferred on him Did not the like Custom prevail in Hungary and Bohemia till those Countries fell under the Power of the House of Austria and in Denmark till the Year 1660 Do not the Kings of Poland derive their Authority from this popular Election which he derides Dos not the stile of the Oath of Allegiance used in the Kingdom of Arragon as it is related by Antonio Perez Secretary of State to Philip 2d shew that their Kings were of their own making Could they say We who are as good as you make you our King on condition that you keep and observe our Privileges and Liberties and if not not if he did not come in by their Election Were not the Roman Emperors in disorderly times chosen by the Souldiers and in such as were more regular by the Senate with the consent of the People Our Author may say the whole Body of these Nations did not meet at their Elections tho that is not always true for in the Infancy of Rome when the whole People dwelt within the Walls of a small City they did meet for the choice of their Kings as afterwards for the choice of other Magistrates Whilst the Goths Franks Vandals and Saxons lived within the Precincts of a Camp they frequently met for the Election of a King and raised upon a Target the Person they had chosen but finding that to be inconvenient or rather impossible when they were vastly increased in number and dispersed over all the Countries they had conquered no better way was found than to institute Gemotes Parliaments Diets Cortez Assemblies of Estates or the like to do that which formerly had bin performed by themselves and when a People is by mutual compact joined together in a civil Society there is no difference as to Right between that which is done by them all in their own Persons or by some deputed by all and acting according to the Powers received from all If our Author was ignorant of these things which are the most common in all Histories he might have spared the pains of writing upon more abstruse Points but 't is a stupendous folly in him to presume to raise Doctrines depending upon the universal Law of God and Nature without examining the only Law that ever God did in a publick manner give to Man If he had looked into it he might have learnt That all Israel was by the command of God assembled at Mispeth to chuse a King and did chuse Saul He being slain all Judah came to Hebron and made David their King after the death of Ishbosheth all the Tribes went to Hebron and anointed him King over them and he made a Covenant with them before the Lord. When Solomon was dead all Israel met together in Shechem and ten Tribes disliking the proceedings of Rehoboam rejected him and made Jeroboam their King The same People in the time of the Judges had general Assemblies as often as occasion did require to set up a Judg make War or the like and the several Tribes had their Assemblies to treat of Businesses relating to themselves The Histories of all Nations especially of those that have peopled the best parts of Europe are so full of Examples in this kind that no man can question them unless he be brutally ignorant or maliciously contentious The great matters among the Germans were transacted omnium consensu De minoribus consultant Principes de majoribus omnes The Michelgemote among the Saxons was an Assembly of the whole People The Baronagium is truly said
the Commonwealth be named wherever the Multitude or so much as the major part of it consented either by Voice or Procuration to the Election of a Prince not observing that if an Answer could not be given he did overthrow the Rights of all the Princes that are or ever have bin in the world for if the Liberty of one man cannot be limited or diminished by one or any number of men and none can give away the Right of another 't is plain that the Ambition of one man or of many a faction of Citizens or the mutiny of an Army cannot give a Right to any over the Liberties of a whole Nation Those who are so set up have their root in Violence or Fraud and are rather to be accounted Robbers and Pirats than Magistrates Leo Africanus observing in his History that since the extinction of Mahomet's Race to whom his Countrymen thought God had given the Empire of the World their Princes did not come in by the consent of those Nations which they governed says that they are esteemed Thieves and that on this account the most honourable Men among the Arabians and Moors scorn to eat drink or make Alliances with them and if the case were as general as that Author makes it no better Rule could be any where followed by honourable and worthy Men. But a good Cause must not be lost by the fault of an ill Advocate the Rights of Kings must not perish because Filmer knows not how to defend or dos maliciously betray them I have already proved that David and divers of the Judges were chosen by all Israel Jeroboam by ten Tribes all the Kings of Rome except Tarquin the Proud by the whole City I may add many Examples of the Saxons in our own Country Ina and Offa were made Kings omnium consensu These All are expressed plainly by the words Archiepiscopis Episcopis Abbatibus Senatoribus Ducibus Populo terrae Egbert and Ethelward came to the Crown by the same Authority Omnium consensu Rex creatur Ethelwolf the Monk Necessitate cogente factus est Rex consensus publicus in regem dari petiit Ethelstan tho a Bastard Electus est magno consensu Optimatum a Populo consalutatus In the like manner Edwin's Government being disliked they chose Edgar Vnanimi omnium conspiratione Edwino dejecto eligerunt Deo dictante Edgarum in Regem annuente Populo And in another place Edgarus ab omni Anglorum Populo electus est Ironside being deâ—d Canutus was received by the general consent of all Juraverunt illi quod eum regem sibi eligere vellent foedus etiam cum principibus omni populo ipse illi cum ipso percusserunt Whereupon Omnium consensu super totam Angliam Canutus coronatur Hardicanutus gaudenter ab omnibus suscipitur electus est The same Author says that Edward the Confessor Electus est in regem ab omni populo And another Omnium Electione in Edwardum concordatur Tho the name of Conqueror be odiously given to William the Norman he had the same Title to the Crown with his Predecessors In magna exultatione a Clero Populo susceptus ab omnibus Rex acclamatus I cannot recite all the Examples of this kind that the History of almost all Nations furnishes unless I should make a Volume in bulk not inferior to the Book of Martyrs But those which I have mentioned out of the Sacred Roman and English History being more than sufficient to answer our Author's Challenge I take liberty to add that tho there could not be one Example produced of a Prince or any other Magistrate chosen by the general consent of the People or by the major part of them it could be of no advantage to the Cause he has undertaken to maintain For when a People hath either indefinitely or under certain Conditions and Limitations resigned their Power into the hands of a certain number of men or agreed upon Rules according to which persons should from time to time be deputed for the management of their Affairs the Acts of those persons if their Power be without restrictions are of the same value as the Acts of the whole Nation and the assent of every individual man is comprehended in them If the Power be limited whatsoever is done according to that limitation has the same Authority If it do therefore appear as is testified by the Laws and Histories of all our Northern Nations that the power of every People is either wholly or to such a degree as is necessary for creating Kings granted to their several Gemotes Diets Cortez Assemblies of Estates Parliaments and the like all the Kings that they have any where or at any time chosen do reign by the same authority and have the same right as if every individual man of those Nations had assented to their Election But that these Gemotes Diets and other Assemblies of State have every where had such Powers and executed them by rejecting or setting up Kings and that the Kings now in being among us have received their beginning from such Acts has bin fully proved and is so plain in it self that none but those who are grosly stupid or impudent can deny it which is enough to shew that all Kings are not set up by violence deceit faction of a sew powerful men or the mutinies of Armies but from the consent of such multitudes as joining together frame Civil Societies and either in their own persons at general Assemblies or by their Delegates confer a just and legal Power upon them which our Author rejecting he dos as far as in him lies prove them all to be Usurpers and Tyrants SECT VI. They who have a right of chusing a King have the right of making a King THO the Right of Magistrates do essentially depend upon the consent of those they govern it is hardly worth our pains to examin Whether the silent acceptation of a Governor by part of the People be an argument of their concurring in the election of him or by the same reason the tacit consent of the whole Commonwealth may be maintained for when the question is concerning Right fraudulent surmises are of no value much less will it from thence follow that a Prince commanding by Succession Conquest or Usurpation may be said to be elected by the People for evident marks of dissent are often given Some declare their hatred other murmur more privately many oppose the Governour or Government and succeed according to the measure of their Strength Virtue or Furtune Many would resist but cannot and it were ridiculous to say that the Inhabitants of Greece the Kingdom of Naples or Dutchy of Tuscany do tacitly assent to the Government of the Great Turk King of Spain or Duke of Florence when nothing is more certain than that those miserable Nations abhor the Tyrannies they are under and if they were not mastered by a Power that
is much too great for them they would soon free themselves And those who are under such Governments do no more assent to them tho they may be silent than a man approves of being robbed when without saying a word he delivers his purse to a Thief that he knows to be too strong for him 'T is not therefore the bear fufferance of a Government when a disgust is declared nor a silent submission when the power of opposing is wanting that can imply an Assent or Election and create a Right but an explicit act of approbation when men have ability and courage to resist or deny Which being agreed 't is evident that our Author's distinction between eligere and instituere signifies nothing tho if the power of instituting were only left to Nations it would be sufficient for he is in vain elected who is not instituted and he that is instituted is certainly elected for his institution is an Election As the Romans who chose Romulus Numa and Hostilius to be Kings and Brutus Valerius or Lucretius to be Consuls did make them so and their Right was solely grounded upon their Election The Text brought by our Author against this doth fully prove it Him shalt thou set King over thee whom the Lord shall chuse for God did not only make the institution of a King to be purely an act of the People but left it to them to institute one or not as should best please themselves and the Words whom the Lord shall chuse can have no other signification than that the People resolving to have a King and following the Rules prescribed by his Servant Moses he would direct them in their choice which relates only to that particular People in covenant with God and immediately under his Government which no other was But this pains might have bin saved if God by a universal Law had given a rule to all The Israelites could not have bin three hundred years without a King and then left to the liberty of making one or not if he by a perpetual Law had ordained that every Nation should have one and it had bin as well impertinent as unjust to deliberate who should be King if the Dominion had by right of Inheritance belonged to one They must have submitted to him whether they would or not No care was to be taken in the election or institution of him who by his birth had a Right annexed to his person that could not be altered He could not have bin forbidden to multiply Silver or Gold who by the Law of his Creation might do what he pleased It had bin ridiculous to say he should not raise his Heart above his Brethren who had no Brethren that is no Equals but was raised above all by God who had imposed upon all others a necessity of obeying him But God who dos nothing in vain did neither constitute or elect any till they desired it nor command them to do it themselves unless it so pleased themselves nor appoint them to take him out of any one Line Every Israelite might be chosen None but Strangers were excluded and the People were left to the liberty of chusing and instituting any one of their Brethren Our Author endeavouring by Hooker's authority to establish his distinction between eligere and instituere destroys it and the paternal Right which he makes the foundation of his Doctrine Heaps of Scripture are alledged says he concerning the solemn Coronation and Inauguration of Saul David Solomon and others by Nobles Antients and People of the Commonwealth of Israel which is enough to prove that the whole work was theirs that no other had any title more than what they bestowed upon him They were set up by the Nobles Antients and People Even God did no otherwise intervene than by such a secret disposition of the Lots by his Providence as is exercised in the Government of all the things in the World and we cannot have a more certain evidence that a paternal right to Dominion is a meer Whimsy than that God did not cause the Lot to fall upon the eldest of the eldest Line of the eldest Tribe but upon Saul a young man of the youngest Tribe and afterwards tho he had designed David Solomon Jeroboam and others who had no pretence to the paternal Right to be Kings he left both the election and institution of them to the Elders and People But Hooker being well examined it will appear that his opinions were as contrary to the Doctrine of our Author as those we have mentioned out of Plato and Aristotle He plainly says It is impossible that any should have a compleat lawful power over a multitude consisting of so many Families as every politick Society doth but by consent of Men or immediate appointment from God Because not having the natural Superiority of Fathers their Power must needs be usurped and then unlawful or if lawful then either granted or consented unto by them over whom they exercise the same or else given extraordinarily by God And tho he thinks Kings to have bin the first Governors so constituted he adds That this is not the only Regiment that hath bin received in the World The inconveniences of one kind have caused sundry others to be devised So that in a word all publick Regiment of what kind soever seemeth evidently to have risen from deliberate advice consultation and composition between men judging it convenient and behoofeful And a little below Man's Nature standing therefore as it doth some kind of regiment the Law of Nature doth require yet the kinds thereof being many Nature tyeth not to any one but leaveth the choice as a thing arbitrary And again To live by one mans will became all mens misery This constrained them to come unto Laws c. But as those Laws do not only teach that which is good but enjoin it they have in them a constraining force To constrain men to any thing inconvenient seemeth unreasonable Most requisite therefore it is that to devise Laws which all men should be forced to obey none but wise men should be admitted Moreover that which we say concerning the power of Government must here be applied unto the power of making Laws whereby to govern which Power God hath over all and by the natural Law whereunto he hath made all subject the lawful power of making Laws to command whole politick Societies of men belongeth so properly unto the same intire Societies that for any Prince or Potentate of what kind soever upon Earth to exercise the same of himself and not either by express commission immediately from God or else by authority derived at the first from their consent upon whose persons they impose Laws it is no better than meer Tyranny Laws therefore they are not which publick consent hath not made so The humour of our Age considered I should not have dared to say so much but if Hooker be a man of such great authority I cannot offend in
whatever to admit of one who is evidently guilty of such Vices as are prejudicial to the State For this reason the French tho much addicted to their Kings rejected the vile remainders of Meroveus his Race and made Pepin the Son of Charles Martel King And when his Descendents sell into the like Vices they were often deposed till at last they were wholly rejected and the Crown given to Capet and to his Heirs Male as formerly Yet for all this Henry his Grandchild being esteemed more fit to govern than his elder Brother Robert was as is said before made King and that Crown still remains in his Descendents no consideration being had of the Children of Robert who continued Dukes of Burgundy during the reigns of ten Kings And in the memory of our Fathers Henry of Navarr was rejected by two Assemblies of the Estates because he differed in Religion from the Body of the Nation and could never be received as King till he had renounced his own tho he was certainly the next in Blood and that in all other respects he excelled in those Vertues which they most esteem We have already proved that our own History is full of the like Examples and might enumerate a multitude of others if it were not too tedious and as the various Rules according to which all the hereditary Crowns of the World are inherited shew that none is set by Nature but that every People proceeds according to their own Will the frequent deviations from those Rules do evidently testify that Salus Populi est Lex suprema and that no Crown is granted otherwise than in submission to it But tho there were a Rule which in no case ought to be transgressed there must be a Power of judging to whom it ought to be applied 'T is perhaps hard to conceive one more precise than that of France where the eldest Legitimate Male in the direct Line is preserred and yet that alone is not sufficient There may be Bastardy in the case Bastards may be thought legitimate and legitimate Sons Bastards The Children born of Isabel of Portugal during her Marriage with John the Third of Castile were declared Bastards and the Title of the House of Austria to that Crown depends upon that Declaration We often see that Marriages which have bin contracted and for a long time taken to be good have bin declared null and the legitimation of the present King of France is founded solely upon the abolition of the marriage of Henry the Fourth with Marguerite of Valois which for the space of twenty seven Years was thought to have bin good Whilst Spain was divided into five or six Kingdoms and the several Kings linked to each other by mutual Alliances incestuous Marriages were often contracted and upon better consideration annulled many have bin utterly void through the preingagement of one of the Parties These are not feigned Cases but such as happen frequently and the diversity of Accidents as well as the humours of Men may produce many others which would involve Nations in the most satal Disorders if every one should think himself obliged to follow such a one who pretended a Title that to him might seem plausible when another should set up one as pleasing to others and there were no Power to terminate those Disputes to which both must submit but the decision must be lest to the Sword This is that which I call the Application of the Rule when it is as plain and certain as humane Wisdom can make it but if it be lest more at large as where Females inherit the difficulties are inextricable and he that says The next Heir is really King when one is dead before he be so declared by a Power that may judg of his Title dos as far as in him lies expose Nations to be split into the most desperate Factions and every man to fight for the Title which he fancies to be good till he destroy those of the contrary Party or be destroyed by them This is the blessed way proposed by our Author to prevent Sedition But God be thanked our Ancestors found a better They did not look upon Robert the Norman as King of England after the death of his Father and when he did proudly endeavour on pretence of Inheritance to impose himself upon the Nation that thought fit to prefer his younger Brothers before him he paid the Penalty of his solly by the loss of his Eyes and Liberty The French did not think the Grandchild of Pharamond to be King after the death of his Father nor seek who was the next Heir of the Merovingian Line when Chilperic the third was dead nor regard the Title of Charles of Lorrain after the death of his Brother Lothair or of Robert of Burgundy eldest Son of King Robert but advanced Meroveus Pepin Capet and Henry the first who had no other Right than what the Nobility and People bestowed upon them And if such Acts do not destroy the Pretences of all who lay claim to Crowns by Inheritance and do not create a Right I think it will be hard to find a lawful King in the world or that there ever have bin any since the first did plainly come in like Nimrod and those who have bin every where since Histories are known to us owed their exaltation to the Consent of Nations armed or unarmed by the deposition or exclusion of the Heirs of such as had reigned before them Our Author not troubling himself with these things or any other relating to the matter in question is pleased to slight Hooker's Opinions concerning Coronation and Inauguration with the heaps of Scripture upon which he grounds them whereas those Solemnities would not only have bin foolish and impertinent but profane and impious if they were not Deeds by which the Right of Dominion is really conferred What could be more wickedly superstitious than to call all Israel together before the Lord and to cast Lots upon every Tribe Family and Person for the election of a King if it had bin known to whom the Crown did belong by a natural and unalterable Right Or if there had bin such a thing in Nature how could God have cauled that Lot to fall upon one of the youngest Tribe for ever to discountenance his own Law and divert Nations from taking any notice of it It had bin absurd for the Tribe of Judah to chuse and anoint David and for the other Tribes to follow their example after the death of Ishbosheth if he had bin King by a Right not depending on their Will David did worse in slaying the Sons of Rimmon saying they had killed a righteous Man lying upon his bed if Ishbosheth whose Head they presented had most unrighteously detained from him as long as he lived the Dominion of the ten Tribes The King Elders and People had most scornfully abused the most sacred things by using such Ceremonies in making him King and compleating their work in a Covenant made between him
and them before the Lord if he had bin already King and if those Acts had bin empty Ceremonies conferring no Right at all I dare not say that a League dos imply an absolute equality between both Parties for there is a Foedus inequale wherein the weaker as Grotius says dos usually obtain protection and the stronger honour but there can be none at all unless both Parties are equally free to make it or not to make it David therefore was not King till he was elected and those Covenants made and he was made King by that Election and Covenants This is not shaken by our Author's supposition That the People would not have taken Joas Manasseh or Josiah if they had had a right of chusing a King since Solomon says Wo unto the Kingdom whose King is a Child For first they who at the first had a right of chusing whom they pleased to be King by the Covenant made with him whom they did chuse may have deprived themselves of the farther execution of it and rendred the Crown hereditary even to Children unless the Conditions were violated upon which it was granted In the second place if the infancy of a King brings Wo upon a People the Government of such a one cannot be according to the Laws of God and Nature for Governments are not instituted by either for the pleasure of a Man but for the good of Nations and their Weal not their Wo is sought by both and if Children are any where admitted to rule 't is by the particular Law of the place grounded perhaps upon an opinion that it is the best way to prevent dangerous Contests or that other ways may be found to prevent the Inconveniences that may proceed from their weakness Thirdly It cannot be concluded that they might not reject Children because they did not such matters require positive Proofs Suppositions are of no value in relation to them and the whole matter may be altered by particular Circumstances The Jews might reasonably have a great veneration for the House of David they knew what was promised to that Family and whatever respect was paid or privilege granted on that account can be of no advantage to any other in the world They might be farther induced to set up Joas in hope the defects of his Age might be supplied by the Vertue Experience and Wisdom of Jehoiada We do not know what good opinion may have bin conceived of Manasseh when he was twelve years old but much might be hoped from one that had bin virtuously educated and was probably under the care of such as had bin chosen by Hezekiah and tho the contrary did fall out the mischiefs brought upon the People by his wicked Reign proceeded not from the weakness of his childhood but from the malice of his riper years And both the Examples of Joas and Josiah prove that neither of them came in by their own right but by the choice of the People Jehoiada gathered the Levites out of all the Cities of Judah and the chief of the Fathers of Israel and they came to Jerusalem And all the Congregation made a Covenant with the King in the House of God and brought out the King's Son and put upon him the Crown and gave him the Testimony and made him King whereupon they slew Athaliah And when Ammon was stain the people of the Land slew them that had conspired against King Ammon and the people of the Land made Josiah his Son King in his stead which had been most impertinent if he was of himself King before they made him so Besides tho Infancy may be a just cause of excepting against and rejecting the next Heir to a Crown 't is not the greatest or strongest 'T is far more easy to find a Remedy against the solly of a Child if the State be well regulated than the more rooted Vices of grown men The English who willingly received Henry the sixth Edward the fifth and sixth tho Children resolutely opposed Robert the Norman And the French who willingly submitted to Charles the ninth Lewis the thirteenth and fourteenth in their Infancy rejected the lewd remainders of Meroveus his Race Charles of Lorrain with his Kindred descended from Pepin Robert Duke of Burgundy with his Descendents and Henry of Navarr till he had satisfied the Nobility and People in the point of Religion And tho I do not know that the Letter upon the words Vaeregnocujus Rex puer est recited by Lambard was written by Eleutherius Bishop of Rome yet the Authority given to it by the Saxons who made it a Law is much more to be valued than what it could receive from the Writer and whoever he was he seems rightly to have understood Solomon's meaning who did not look upon him as a Child that wanted years or was superannuated but him only who was guilty of Insolence Luxury Folly and Madness and he that said A wise Child was better than an old and foolish King could have no other meaning unless he should say it was worse to be governed by a wise Person than a Fool which may agree with the judgment of our Author but could never enter into the heart of Solomon Lastly Tho the practice of one or more Nations may indicate what Laws Covenants or Customs were in force among them yet they cannot bind others The diversity of them proceeds from the variety of mens Judgments and declares that the direction of all such Affairs depends upon their own Will according to which every People for themselves forms and measures the Magistracy and magistratical Power which as it is directed solely for the good hath its exercises and extent proportionable to the Command of those that institute it and such Ordinances being good for men God makes them his own SECT VIII There is no natural propensity in Man or Beast to Monarchy I See no reason to believe that God did approve the Government of one over many because he created but one but to the contrary in as much as he did endow him and those that came from him as well the youngest as the eldest Line with understanding to provide for themselves and by the invention of Arts and Sciences to be beneficial to each other he shewed that they ought to make use of that understanding in forming Governments according to their own convenience and such occasions as should arise as well as in other matters and it might as well be inferr'd that it is unlawful for us to build clothe arm defend or nourish our selves otherwise than as our first Parents did before or soon after the Flood as to take from us the liberty of instituting Governments that were not known to them If they did not find out all that conduces to the use of man but a Faculty as well as a Liberty was left to every one and will be to the end of the world to make use of his Wit Industry and Experience according to present Exigencies to
it Some being incensed against their Kings as the Romans exasperated by the Villanies of Tarquin and the Tuscans by the Cruelties of Mezentius abolished the name of King Others as Athens Sicion Argos Corinth Thebes and the Latins did not stay for such extremities but set up other Governments when they thought it best for themselves and by this conduct prevented the evils that usually fall upon Nations when their Kings degenerate into Tyrants and a Nation is brought to enter into a War by which all may be lost and nothing can be gained which was not their own before The Romans took not this salutary Course the mischief was grown up before they perceived or set themselves against it and when the effects of Pride Avarice Cruelty and Lust were grown to such a height that they could no longer be endured they could not free themselves without a War and whereas upon other occasions their Victories had brought them increase of Strength Territory and Glory the only reward of their Virtue in this was to be delivered from a Plague they had unadvisedly suffered to grow up among them I confess this was most of all to be esteemed for if they had bin overthrown their condition under Tarquin would have bin more intolerable than if they had fallen under the power of Pirrhus or Hannibal and all their following Prosperity was the fruit of their recover'd Liberty But it had bin much better to have reformed the State after the death of one of their good Kings than to be brought to fight for their Lives against that abominable Tyrant Our Author in pursuance of his aversion to all that is good disapproves this and wanting reasons to justify his dislike according to the custom of Impostors and Cheats hath recourse to the ugly terms of a back-door Sedition and Faction as if it were not as just for a People to lay aside their Kings when they receive nothing but evil and can rationally hope for no benefit by them as for others to set them up in expectation of good from them But if the truth be examin'd nothing will be found more orderly than the changes of Government or of the Persons and Races of those that governed which have bin made by many Nations When Pharamond's Grandson seemed not to deserve the Crown he had worn the French gave it to Meroveus who more resembled him in Virtue In process of time when this Race also degenerated they were rejected and Pepin advanced to the Throne and the most remote in blood of his Descendents having often bin preferred before the nearest and Bastards before the legitimate Issue they were at last all laid aside and the Crown remains to this day in the Family of Hugh Capet on whom it was bestow'd upon the rejection of Charles of Lorrain In like manner the Castilians took Don Sancho sirnamed the Brave second Son to Alphonso the Wise before Alphonso el Desheredado Son of the elder Brother Ferdinand The States of Arragon preferred Martin Brother to John the first before Mary his Daughter married to the Count de Foix tho Females were not excluded from the Succession and the House of Austria now enjoys that Crown from Joan Daughter to Ferdinand In that and many other Kingdoms Bastards have bin advanced before their legitimate Brothers Henry Count of Trastamara Bastard to Alphonso the II King of Castile received the Crown as a reward of the good Service he had done to his Country against his Brother Peter the Cruel without any regard had to the House of La Cerda descended from Alphonso el Desheredado which to this day never enjoy'd any greater honour than that of Duke de Medina Celi Not long after the Portuguese conceiving a dislike of their King Ferdinand and his Daughter married to John King of Castile rejected her and her Uncle by the Father's side and gave the Crown to John a Knight of Calatrava and Bastard to an Uncle of Ferdinand their King About the beginning of this age the Swedes deposed their King Sigismund for being a Papist and made Charles his Uncle King Divers Examples of the like nature in England have bin already mentioned All these transportations of Crowns were Acts performed by Assemblies of the three Estates in the several Kingdoms and these Crowns are to this day enjoy'd under Titles derived from such as were thus brought in by the deposition or rejection of those who according ing to descent of blood had better Titles than the present Possessors The Acts therefore were lawful and good or they can have no Title at all and they who made them had a just power so to do If our Author can draw any advantage from the resemblance of Regality that he finds in the Roman Consuls and Athenian Archons I shall without envy leave him the enjoyment of it but I am much mistaken if that do not prove my assertion that those Governments were composed of the three simple species for if the Monarchical part was in them it cannot be denied that the Aristocratical was in the Senate or Areopagi and the Democratical in the People But he ought to have remembred that if there was something of Monarchical in those Governments when they are said to have bin Popular there was something of Aristocratical and Democratical in those that were called Regal which justifies my proposition on both sides and shews that the denomination was taken from the part that prevail'd and if this were not so the Governments of France Spain and Germany might be called Democracies and those of Rome and Athens Monarchies because the People have a part in the one and an image of Monarchy was preserved in the other If our Author will not allow the cases to be altogether equal I think he will find no other difference than that the Consuls and Archons were regularly made by the Votes of the consenting People and orderly resign'd their Power when the time was expir'd for which it was given whereas Tarquin Dionysius Agathocles Nabis Phalaris Cesar and almost all his Successors whom he takes for compleat Monarchs came in by violence fraud and corruption by the help of the worst men by the slaughter of the best and most commonly when the method was once establish'd by that of his Predecessor who if our Author say true was the Father of his Country and his also This was the root and foundation of the only Government that deserves praise this is that which stampt the divine character upon Agathocles Dionysius and Cesar and that had bestow'd the same upon Manlius Marius or Catiline if they had gain'd the Monarchies they affected But I suppose that such as God has bless'd with better judgment and a due regard to Justice and Truth will say that all those who have attained to such greatness as destroys all manner of good in the places where they have set up themselves by the most detestable Villanies came in by a backdoor and that such Magistrates as were
has bin in force for so many Ages What the beginning of it was is not known But Charles the sixth receding from this Law and thinking to dispose of the Succession otherwise than was ordained by it was esteemed mad and all his Acts rescinded And tho the Reputation Strength and Valour of the English commanded by Henry the fifth one of the bravest Princes that have ever bin in the world was terrible to the French Nation yet they opposed him to the utmost of their power rather than suffer that Law to be broken And tho our Success under his Conduct was great and admirable yet soon aster his death with the expence of much Blood and Treasure we lost all that we had on that side and suffer'd the Penalty of having unadvisedly entred into that Quarrel By virtue of the same Law the Agreement made by King John when he was Prisoner at London by which he had alienated part of that Dominion as well as that of Francis the first concluded when he was under the same Circumstances at Madrid were reputed null and upon all occasions that Nation has given sufficient testimony that the Laws by which they live are their own made by themselves and not imposed upon them And 't is as impossible for them who made and deposed Kings exalted or depressed reigning Families and prescribed Rules to the Succession to have received from their own Creatures the Power or part of the Government they had as for a man to be begotten by his own Son Nay tho their Constitutions were much changed by Lewis the 11 th yet they retained so much of their antient Liberty that in the last Age when the House of Valois was as much depraved as those of Meroveus and Pepin had bin and Henry the third by his own Lewdness Hypocrisy Cruelty and Impurity together with the baseness of his Minions and Favorites had rendred himself odious and contemptible to the Nobility and People the great Cities Parliaments the greater and in political matters the sounder part of the Nation declared him to be fallen from the Crown and pursued him to the death tho the blow was given by the hand of a base and half-distracted Monk Henry of Bourbon was without controversy the next Heir but neither the Nobility nor the People who thought themselves in the Government would admit him to the Crown till he had given them satisfaction that he would govern according to their Laws by abjuring his Religion which they judged inconsistent with them The later Commotions in Paris Bourdeaux and other places together with the Wars for Religion shew that tho the French do not complain of every Grievance and cannot always agree in the defence and vindication of their violated Liberties yet they very well understand their Rights and that as they do not live by or for the King but he reigns by and for them so their Privileges are not from him but that his Crown is from them and that according to the true Rule of their Government he can do nothing against their Laws or if he do they may oppose him The Institution of a Kingdom is the act of a free Nation and whoever denies them to be free denies that there can be any thing of right in what they set up That which was true in the beginning is so and must be so for ever This is so far acknowledged by the highest Monarchs that in a Treatise published in the year 1667 by Authority of the present King of France to justify his pretensions to some part of the Low-Countries notwithstanding all the Acts of himself and the King of Spain to extinguish them it is said That Kings are under the happy inability to do any thing against the Laws of their Country And tho perhaps he may do things contrary to Law yet he grounds his Power upon the Law and the most able and most trusted of his Ministers declare the same About the year 1660 the Count D' Aubijoux a man of eminent quality in Languedoc but averse to the Court and hated by Cardinal Mazarin had bin tried by the Parliament of Tholouse for a Duel in which a Gentleman was kill'd and it appearing to the Court then in that City that he had bin acquitted upon forged Letters of Grace false Witnesses powerful Friends and other undue means Mazarin desired to bring him to a new Trial but the Chancellor Seguier told the Queen-Mother it could not be for the Law did not permit a man once acquitted to be again question'd for the same Fact and that if the course of the Law were interrupted neither the Salique Law nor the succession of her Children or any thing else could be secure in France This is farther proved by the Histories of that Nation The Kings of Meroveus and Pepin's Races were suffer'd to divide the Kingdom amongst their Sons or as Hottoman says the Estates made the Division and allotted to each such a part as they thought fit But when this way was found to be prejudicial to the Publick an Act of State was made in the time of Hugh Capet by which it was ordain'd that for the future the Kingdom should not be dismembred which Constitution continuing in force to this day the Sons or Brothers of their Kings receive such an Apannage they call it as is bestow'd on them remaining subject to the Crown as well as other men And there has been no King of France since that time except only Charles the sixth who has not acknowledged that he cannot alienate any part of their Dominion Whoever imputes the acknowledgment of this to Kingcraft and says that they who avow this when 't is for their advantage will deny it on a different occasion is of all men their most dangerous Enemy In laying such fraud to their charge he destroys the veneration by which they subsist and teaches Subjects not to keep Faith with those who by the most malicious deceits show that they are tied by none Human Societies are maintained by mutual Contracts which are of no value if they are not observ'd Laws are made and Magistrates created to cause them to be performed in publick and private matters and to punish those who violate them But none will ever be observed if he who receives the greatest benefit by them and is set up to oversee others give the example to those who of themselves are too much inclin'd to break them The first step that Pompey made to his own ruin was by violating the Laws he himself had proposed But it would be much worse for Kings to break those that are established by the Authority of a whole People and confirmed by the succession of many Ages I am far from laying any such blemishes on them or thinking that they deserve them I must believe the French King speaks sincerely when he says he can do nothing against the Laws of his Country And that our King James did the like when he
Will and can he be offended with those who desire to live in a conformity to that Law Or could it justly be said The People had chosen that which is not good if nothing in Government be good but what they chose But as the worst men delight in the worst things and Fools are pleased with the most extreme absurdities he not only gives the highest praises to that which bears so many marks of God's hatred but after having said that Abraham Isaac Jacob and Moses were Kings he goes on and says The Israelites begged a King of Samuel which had bin impertinent if the Magistrates instituted by the Law were Kings and tho it might be a folly in them to ask what they had already it could be no sin to desire that which they enjoyed by the Ordinance of God If they were not Kings it follows that the only Government set up by God amongst men wanted the principal part even the Head and Foundation from whence all the other parts have their action and being that is God's Law is against God's Law and destroys it self But if God did neither by a general and perpetual Ordinance establish over all Nations the Monarchy which Samuel describes nor prescribe it to his own People by a particular Command it was purely the Peoples Creature the production of their own fancy conceived in wickedness and brought forth in iniquity an Idol set up by themselves to their own destruction in imitation of their accursed Neighbours and their Reward was no better than the concession of an impious Petition which is one of God's heaviest Judgments Samuel's words are acknowledged by all Interpreters who were not malicious or mad to be a disswasion from their wicked purpose not a description of what a King might justly do by virtue of his Office but what those who should be set up against God and his Law would do when they should have the power in their hands And I leave such as have the understandings of men and are not abandoned by God to judg what influence this ought to have upon other Nations either as to obligation or imitation SECT IV. No People can be obliged to suffer from their Kings what they have not a right to do OUR Author's next work is to tell us That the scope of Samuel was to teach the People a dutiful obedience to their King even in the things that they think mischievous or inconvenient For by telling them what the 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 This is hard but the Conclusion is grounded upon nothing There is no relation between a Prediction that a thing shall be attempted or done to me and a Precept that I shall not defend my self or punish the person that attempts or dos it If a Prophet should say that a Thief lay in the way to kill me it might reasonably perswade me not to go or to go in such a manner as to be able to defend my self but can no way oblige me to submit to the violence that shall be offer'd or my Friends and Children not to avenge my death if I fall much less can other men be deprived of the natural right of defending themselves by my imprudence or obstinacy in not taking the warning given whereby I might have preserved my life For every man has a right of resisting some way or other that which ought not to be done to him and tho human Laws do not in all cases make men Judges and Avengers of the Injuries offer'd to them I think there is none that dos not justify the man who kills another that offers violence to him if it appear that the way prescribed by the Law for the preservation of the Innocent cannot be taken This is not only true in the case of outragious attempts to assassinate or rob upon the high way but in divers others of less moment I knew a man who being appointed to keep his Master's Park killed three men in one night that came to destroy his Deer and putting himself into the hands of the Magistrate and consessing the Fact both in matter and manner he was at the publick Assizes not only acquitted but commended for having done his duty and this in a time when 't is well known Justice was severely administred and little favour expected by him or his Master Nay all Laws must fall human Societies that subsist by them be dissolved and all innocent persons be exposed to the violence of the most wicked if men might not justly defend themselves against injustice by their own natural right when the ways prescribed by publick Authority cannot be taken Our Author may perhaps say this is true in all except the King And I desire to know why if it be true in all except the King it should not be true in relation to him Is it possible that he who is instituted for the obtaining of Justice should claim the liberty of doing Injustice as a Privilege Were it not better for a people to be without Law than that a Power should be established by Law to commit all manner of violences with impunity Did not David resist those of Saul Did he not make himself head of the Tribe of Judah when they revolted against his Son and afterwards of the ten Tribes that rejected his Posterity Did not the Israelites stone Adoram who collected the Taxes revolt from the house of David set up Jeroboam and did not the Prophet say it was from the Lord If it was from the Lord was it not good If it was good then is it not so for ever Did good proceed from one root then and from another now If God had avenged the Blood of Naboth by fire from Heaven and destroyed the House of Ahab as he did the two Captains and their men who were sent to apprehend Elijah it might be said he reserv'd that vengeance to himself but he did it by the Sword of Jehu and the Army which was the People who had set him up for an Example to others But 't is good to examine what this dutiful Obedience is that our Author mentions Men usually owe no more than they receive 'T is hard to know what the Israelites owed to Saul David Jeroboam Ahab or any other King whether good or bad till they were made Kings And the Act of the People by which so great a dignity was conferr'd seems to have laid a duty upon them who did receive more than they had to give so that something must be due from them unless it were releas'd by virtue of a Covenant or Promise made and none could accrue to them from the people afterwards unless from the merit of the person in rightly executing his Office If a Covenant
which they are condemned perpetually to the Gallies and such as are aiding to them to grievous Fines But before this be acknowledged to have any similitude or relation to our discourse concerning Kings it must be proved that the present King or those under whom he claims is or were Proprietors of all the Lands in England and granted the several parcels under the condition of suffering patiently such Inconveniences and Miseries as are above-mentioned or that they who did confer the Crown upon any of them did also give a Propriety in the Land which I do not find in any of the fifteen or sixteen Titles that have bin since the coming in of the Normans and if it was not done to the first of every one it cannot accrue to the others unless by some new act to the same purpose which will not easily be produced It will be no less difficult to prove that any thing unworthy of freemen is by any Tenures imposed in England unless it be the offering up of the Wives and Daughters of Tenants to the Lust of Abbots and Monks and they are so far from being willingly suffer'd that since the Dens and Nurseries of those Beasts were abolished no man that succeeds them has had impudence sufficient to exact the performance and tho the letter of the Law may favour them the turpitude of the thing has extinguished the usage But even the Kings of Israel and Judah who brought upon the People those evils that had bin foretold by Samuel did not think they had a right to the Powers they exercised If the Law had given a right to Ahab to take the best of their Vineyards he might without ceremony have taken that of Naboth and by the majestick power of an absolute Monarch have chastized the churlish Clown who resused to sell or change it for another but for want of it he was obliged to take a very different course If the lives of Subjects had in the like manner depended upon the will of Kings David might without scruple have killed Vriah rather than to place him in the front of the Army that he might fall by his own courage The malice and treachery of such Proceedings argues a defect of power and he that acts in such an oblique manner shews that his actions are not warranted by the Law which is boldly executed in the face of the Sun This shews the interpretation put upon the words Against thee only have I sinned by Court-flatterers to be false If he had not sinned against Bathsheba whom he corrupted Vriah whom he caused to be killed the People that he scandalized and the Law which he violated he had never endeavoured to cover his guilt by so vile a sraud And as he did not thereby fly the sight of God but of men 't is evident that he in that action feared men more than God If by the Examples of Israel and Judah we may judg whether the Inconveniences and Miseries brought upon Nations by their Kings be tolerable or intolerable it will be enough to consider the madness of Sauls cruelty towards his Subjects and the slaughter brought upon them by the hand of the Philistins on Mount Gilboa where he fell with the flower of all Israel the Civil Wars that hapned in the time of David and the Plague brought upon the People by his wickedness the heavy burdens laid upon them by Solomon and the Idolatry favour'd by him the wretched folly of Rehoboam and the defection of the ten Tribes caused by it the Idolatry established by Jeroboam and the Kings of Israel and that of many of those of Judah also the frequent Wars and unheard of Slaughters ensuing thereupon between the Tribes the daily devastations of the Country by all sorts of Strangers the murders of the Prophets the abolition of God's Worship the desolation of Towns and Provinces the Captivity of the ten Tribes carried away into unknown Countries and in the end the abolition of both Kingdoms with the captivity of the Tribe of Judah and the utter destruction of the City It cannot be said that these things were suffer'd under Kings and not from or by them for the desolation of the Cities People and Country is in many places of Scripture imputed to the Kings that taught Israel to sin as appears by what was denounced against Jeroboam Jehu Ahaz Manasseh Zedekiah and others Nay the Captivity of Babylon with the evils ensuing were first announced to Hezekiah for his vanity and Josiah by the like brought a great slaughter upon himself and people But if mischiess fell upon the People by the frailty of these who after David were the best nothing surely less than the utmost of all Miseries could be expected from such as were set to do evil and to make the Nation like to themselves in which they met with too great success If it be pretended that God's People living under an extraordinary Dispensation can be no example to us I desire other Histories may be examined for I confess I know no Nation so great happy and prosperous nor any Power so well established that two or three ill Kings immediately succeeding each other have not bin able to destroy and bring to such a condition that it appeared the Nations must perish unless the Senates Diets and other Assemblies of State had put a stop to the mischief by restraining or deposing them and tho this might be proved by innumerable Testimonies I shall content my self with that of the Roman Empire which perished by the vices corruption and baseness of their Princes the noble Kingdom of the Goths in Spain overthrown by the Tyranny of Witza and Rodrigo the present state of Spain now languishing and threatning ruin from the same causes France brought to the last degree of misery and weakness by the degenerate races of Pharamond and Charles preserved and restored by the Virtues of Pepin and Capet to which may be added those of our own Country which are so well known that I need not mention them SECT VI. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches OUR Author having hitherto spoken of all Nations as born under a necessity of being subject to Absolute Monarchy which he pretends to have bin set up by the universal and indispensible Law of God and Nature now seems to leave to their discretion whether they will have a King or not but says that those who will have a King are bound to allow him Royal maintenance by providing Revenues for the Crown since it is for the Honour Profit and Safety of the People to have their King glorious powerful and abounding in Riches If there be any thing of sense in this Clause there is nothing of truth in the foundation or principle of his whole Book For as the right and being of a Father is natural or inherent and no ways depending upon the will of the Child that of a
King is so also if he be and ought to enjoy the Rights belonging to the Father of the People And 't is not less ridiculous to say those who will have a King than it would be to say he that will have a Father for every one must have one whether he will or not But if the King be a Father as our Author from thence infers that all Laws are from him none can be imposed upon him and whatsoever the Subject enjoys is by his concessions 'T is absurd to speak of an Obligation lying upon the people to allow him Royal maintenance by providing Revenues since he has all in himself and they have nothing that is not from him and depending upon his Will For this reason a worthy Gentleman of the House of Commons in the year 1640. desired that the business of the Judges who in the Star-Chamber had given for their Opinion concerning Shipmony That in cases of Necessity the King might provide it by his own Authority and that he was Judg of that Necessity might be first examined that they might know whether they had any thing to give before they should speak of giving And as'tis certain that if the Sentence of those perjur'd Wretches had stood the Subjects of England by consequence would have bin found to have nothing to give 't is no less sure that if our Author's principle concerning the Paternal and Absolute Power of Kings be true it will by a more compendious way appear that it is not left to the choice of any Nation whether they will have a King or not for they must have him and can have nothing to allow him but must receive all from him But if those only who will have a King are bound to have one and to allow this Royal maintenance such as will not have a King are by one and the same act delivered from the necessity of having one and from providing Maintenance for him which utterly overthrows the magnificent Fabrick of Paternal Monarchy and the Kings who were lately represented by our Author placed on the Throne by God and Nature and endow'd with an absolute Power over all appear to be purely the Creatures of the People and to have nothing but what is received from them From hence it may be rationally inferred that he who makes a thing to be makes it to be only what he pleases This must hold in relation to Kings as well as other Magistrates and as they who made Consuls Dictators and Military Tribuns gave them only such Power and for such a time as best pleased themselves 't is impossible they should not have the same right in relation to Kings in making them what they please as well as not to make them unless they please except there be a Charm belonging to the Name or the Letters that compose it which cannot belong to all Nations for they are different in every one according to the several Languages But says our Author 't is for the Honor Profit and Safety of the People that the King should be glorious powerful and abounding in Riches There is therefore no obligation upon them and they are to judg whether it be so or not The Scripture says plainly the contrary He shall not multiply Silver and Gold Wives and Horses he shall not lift up his heart above his Brethren He shall not therefore be glorious powerful or abounding in Riches Reason and Experience teach us the same thing If those Nations that have bin proud luxurious and vicious have desired by Pomp and Riches to foment the Vices of their Princes thereby to cherish their own such as have excelled in Virtue and good Discipline have abhorred it and except the immediate exercise of their Office have kept their supreme Magistrates to a manner of living little different from that of private men and it had bin impossible to maintain that frugality in which the integrity of their manners did chiefly consist if they had set up an Example directly contrary to it in him who was to be an Example to others or to provide for their own safety if they had overthrown that integrity of manners by which it could only be obtained and preserved There is a necessity incumbent upon every Nation that lives in the like Principle to put a stop to the entrance of those Vices that arise from the superfluity of Riches by keeping their Kings in that honest Poverty which is the Mother and Nurse of Modesty Sobriety and all manner of Virtue And no man can deny this to be well done unless he will affirm that Pride Luxury and Vice is more profitable to a Nation than the Virtues that are upheld by frugality There is another reason of no less importance to those Nations who tho they think fit to have Kings yet desire to preserve their Liberty which obliges them to set limits to the Glory Power and Riches of their Kings and that is That they can no otherwise be kept within the Rules of the Law Men are naturally propense to corruption and if he whose Will and Interest it is to corrupt them be furnished with the means he will never fail to do it Power Honors Riches and the Pleasures that attend them are the baits by which men are drawn to prefer a personal Interest before the publick Good and the number of those who covet them is so great that he who abounds in them will be able to gain so many to his service as shall be sufficient to subdue the rest 'T is hard to find a Tyranny in the world that has not bin introduced this way for no man by his own strength could ever subdue a multitude none could ever bring many to be subservient to his ill designs but by the rewards they received or hoped By this means Cesar accomplished his work and overthrew the Liberty of his Country and with it all that was then good in the world They who were corrupted in their minds desired to put all the Power and Riches into his hands that he might distribute them to such as served him And he who was nothing less than covetous in his own nature desired Riches that he might gain Followers and by the plunder of Gaul he corrupted those that betray'd Rome to him And tho I do not delight to speak of the Affairs of our own time I desire those who know the present State of France to tell me whether it were possible for the King to keep that Nation under servitude if a vast Revenue did not enable him to gain so many to his particular service as are sufficient to keep the rest in subjection and if this be not enough let them consider whether all the dangers that now threaten us at home do not proceed from the madness of those who gave such a Revenue as is utterly unproportionable to the Riches of the Nation unsutable to the modest behaviour expected from our Kings and which in time will render Parliaments unnecessary
to King Stephen and her Son Henry the 2d and of Henry the 7th in relation to the house of York both before he had married a Daughter of it and after her death they did the contrary in the cases of William the first and second Henry the I st Stephen John Richard the 3d Henry the 7th Mary Elizabeth and others So that for any thing I can yet find 't is equally difficult to discover the true sense of the Law of Nature that should be a guide to my Conscience whether I so far submit to the Laws of my Country to think that England alone has produced men that rightly understand it or examine the Laws and Practices of other Nations Whilst this remains undecided 't is impossible for me to know to whom I owe the obedience that is exacted from me If I were a French-man I could not tell whether I ow'd allegiance to the King of Spain Duke of Lorrain Duke of Savoy or many others descended from Daughters of the house of Valois one of whom ought to inherit if the Inheritance belongs to Females or to the house of Bourbon whose only title is founded upon the exclusion of them The like Controversies will be in all places and he that would put Mankind upon such enquiries goes about to subvert all the Governments of the World and arms every man to the destruction of his neighbour We ought to be informed when this right began If we had the Genealogy of every man from Noah and the Crowns of every Nation had since his time continued in one Line we were only to inquire into how many Kingdoms he appointed the world to be divided and how well the division we see at this day agrees with the allotment made by him But Mankind having for many Ages lain under such a vast confusion that no man pretends to know his own original except some Jews and the Princes of the house of Austria we cannot so easily arrive at the end of our work and the Scriptures making no other mention of this part of the world than what may induce us to think it was given to the Sons of Japhet we have nothing that can lead us to guess how it was to be subdivided nor to whom the several parcels were given So that the difficulties are absolutely inextricable and tho it were true that some one man had a right to every parcel that is known to us it could be of no use for that Right must necessarily perish which no man can prove nor indeed claim But as all natural Rights by Inheritance must be by Descent this Descent not being proved there can be no natural Right and all Rights being either natural created or acquired this Right to Crowns not being natural must be created or acquired or none at all There being no general Law common to all Nations creating a Right to Crowns as has bin proved by the several methods used by several Nations in the disposal of them according to which all those that we know are enjoy'd we must seek the Right concerning which we dispute from the particular Constitutions of every Nation or we shall be able to find none Acquir'd Rights are obtained as men say either by fair means or by soul that is by force or by consent such as are gained by force may be recovered by force and the extent of those that are enjoy'd by consent can only be known by the reasons for which or the conditions upon which that consent was obtain'd that is to say by the Laws of every People According to these Laws it cannot be said that there is a King in every Nation before he is crown'd John Sobietski now reigning in Poland had no relation in blood to the former Kings nor any title till he was chosen The last King of Sweden acknowledged he had none but was freely elected and the Crown being conferred upon him and the Heirs of his Body if the present King dies without Issue the right of electing a Successor returns undoubtedly to the Estates of the Country The Crown of Denmark was Elective till it was made Hereditary by an Act of the General Diet held at Copenhagen in the year 1660 and 't is impossible that a Right should otherwise accrue to a younger Brother of the house of Holstein which is derived from a younger Brother of the Counts of Oldenburgh The Roman Empire having passed through the hands of many Persons of different Nations no way relating to each other in blood was by Constantine transferred to Constantinople and after many Revolutions coming to Theodosius by birth a Spaniard was divided between his two Sons Arcadius and Honorius From thence passing to such as could gain most credit with the Soldiers the Western Empire being brought almost to nothing was restored by Charles the Great of France and continuing for some time in his descendents came to the Germans who having created several Emperors of the Houses of Suevia Saxony Bavaria and others as they pleased about three hundred years past chose Rodolphus of Austria and tho since that time they have not had any Emperor who was not of that Family yet such as were chosen had nothing to recommend them but the merits of their Ancestors their own personal Virtues or such political considerations as might arise from the power of their hereditary Countries which being joined with those of the Empire might enable them to make the better defence against the Turks But in this Line also they have had little regard to inheritance according to blood for the elder branch of the Family is that which reigns in Spain and the Empire continues in the descendents of Ferdinand younger Brother to Charles the fifth tho so unfix'd even to this time that the present Emperor Leopold was in great danger of being rejected If it be said that these are Elective Kingdoms and our Author speaks of such as are hereditary I answer that if what he says be true there can be no Elective Kingdom and every Nation has a natural Lord to whom obedience is due But if some are Elective all might have bin so if they had pleased unless it can be proved that God created some under a necessity of subjection and left to others the enjoyment of their liberty If this be so the Nations that are born under that necessity may be said to have a natural Lord who has all the power in himself before he is crowned or any part conferred on him by the consent of the people but it cannot extend to others And he who pretends a right over any Nation upon that account stands obliged to shew when and how that Nation came to be discriminated by God from others and deprived of that liberty which he in goodness had granted to the rest of mankind I confess I think there is no such Right and need no better proof than the various ways of disposing Inheritances in several Countries which not being naturally or universally
retained the name of a Senate was made up chiefly of those who had bin his Ministers in bringing the most miserable slavery upon their own Country The Roman Liberty and that bravery of spirit by which it had bin maintained was not only abolished but almost forgotten All consideration of Law and Right was trampled under foot and none could dispute with him who by the power of the sword had seiz'd the Authority both of the Senate and People Nothing was so extravagant that might not be extorted by the insolent violence of a Conqueror who had thirty mercenary Legions to execute his Commands The uncorrupted part of the People that had escaped the sword of Julius had either perished with Hirtius and Pansa Brutus and Cassius or bin destroy'd by the detestable Triumvirate Those that remain'd could lose nothing by a verbal resignation of their Liberty which they had neither strength nor courage to defend The Magistracies were possess'd by the Creatures of the Tyrant and the People was composed of such as were either born under slavery and accustomed to obey or remain'd under the terror of those arms that had consumed the Assertors of their Liberty Our Author standing in need of some Roman Example was obliged to seek it in an age when the Laws were subverted Virtue extinguished Injustice placed in the Throne and such as would not be of the same spirit exposed to the utmost cruelty This was the time when the Sovereign Majesty shined in glory and they who had raised it above the Law made it also the object of their Religion by adoring the Statues of their Oppressor The corruption of this Court spread it self over the best part of the world and reduced the Empire to that irrecoverable weakness in which it languished and perish'd This is the state of things that pleases Filmer and those that are like him who for the introduction of the same among us recommend such an elevation of the Sovereign Majesty as is most contrary to the Laws of God and Men abhorred by all generous Nations and most especially by our Ancestors who thought nothing too dear to be hazarded in the defence of themselves and us from it SECT XXV The Regal Power was not the first in this Nation nor necessarily to be continued tho it had bin the first TRUTH being uniform in it self those who desire to propagate it for the good of mankind lay the foundations of their reasonings in such Principles as are either evident to common sense or easily proved but Cheats and Impostors delighting in obscurity suppose things that are dubious or false and think to build one falshood upon another and our Author can find no better way to perswade us that all our Privileges and Laws are from the King than by saying That the first power was the Kingly Power which was both in this and all other Nations in 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 or common Customs of this Land were originally the Laws and Commands of the King But denying both these points I affirm 1. First that there was a power to make Kings before there was any King 2. Tho Kings had bin the first created Magistrates in all places as perhaps they were in some it dos not follow that they must continue for ever or that Laws are from them To the first I think no man will deny that there was a People at Babylon before Nimrod was King of that place This People had a Power for no number of men can be without it Nay this People had a power of making Nimrod King or he could never have bin King He could not be King by succession for the Scripture shews him to have bin the first He was not King by the right of Father for he was not their Father Chush Cham with his elder Brothers and Father Noah being still living and which is worst of all were not Kings for if they who lived in Nimrod's time or before him neither were Kings nor had Kings he that ought to have bin King over all by the right of nature if there had bin any such thing in nature was not King Those who immediately succeeded him and must have inherited his right if he had any did not inherit or pretend to it and therefore he that shall now claim a right from nature as Father of a People must ground it upon something more certain than Noah's right of reigning over his Children or it can have no strength in it Moreover the Nations who in and before the time of Nimrod had no Kings had Power or else they could have performed no Act nor constituted any other magistrate to this day which is absurd There was therefore a power in Nations before there were Kings or there could never have bin any and Nimrod could never have bin King if the People of Babylon had not made him King which they could not have done if they had not had a power of making him so 'T is ridiculous to say he made himself King for tho he might be strong and valiant he could not be stronger than a multitude of men That which sorces must be stronger than that which is forced and if it be true according to the antient saying that Hercules himself is not sufficient to encounter two 't is sure more impossible for one man to force a multitude for that must be stronger than he If he came in by perswasion they who were perswaded were perswaded to consent that he should be King That Consent therefore made him King But Qui dat esse dat modum esse They who made him King made him such a King as best pleased themselves He had therefore nothing but what was given his greatness and power must be from the multitude who gave it and their Laws and Liberties could not be from him but their Liberties were naturally inherent in themselves and their Laws were the product of them There was a People that made Romulus King He did not make or beget that People nor for any thing we know one man of them He could not come in by inheritance for he was a Bastard the Son of an unknown man and when he died the right that had bin conferred upon him reverted to the People who according to that right chose Numa Hostilius Martius Tarquinius Priscus and Servius all Strangers and without any other right than what was bestow'd upon them and Tarquinius Superbus who invaded the Throne without the command of the People was ejected and the Government of Kings abolisht by the same power that had created it We know not certainly by what Law Moses and the Judges created by the advice of Jethro governed the Israelites but may probably conjecture it to have bin by that Law which God had written in the hearts of mankind and the People submitted to the judgment of good and wise men tho
SECT XXVI Tho the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law I Confess that no Law can be so perfect to provide exactly for every case that may fall out so as to leave nothing to the discretion of the Judges who in some measure are to interpret them But that Laws or Customs are ever few or that the paucity is the reason that they cannot give special rules or that Judges do resort to those principles or Common Law Axioms whereupon former judgments in cases something alike have bin given by former Judges who all receive their Authority from the King in his right to give Sentence I utterly deny and affirm 1. That in many places and particularly in England the Laws are so many that the number of them has introduced an uncertainty and confusion which is both dangerous and troublesom and the infinite variety of adjudged cases thwarting and contradicting each other has render'd these difficulties inextricable Tacitus imputes a great part of the miseries suffer'd by the Romans in his time to this abuse and tells us that the Laws grew to be innumerable in the worst and most corrupt state of things and that Justice was overthrown by them By the same means in France Italy and other places where the Civil Law is rendred municipal Judgments are in a manner arbitrary and tho the intention of our Laws be just and good they are so numerous and the volumes of our Statutes with the interpretations and adjudged Cases so vast that hardly any thing is so clear and fixed but men of wit and learning may find what will serve for a pretence to justify almost any judgment they have a mind to give Whereas the Laws of Moses as to the Judicial part being short and few Judgments were easy and certain and in Switzerland Sweden and some parts of Denmark the whole volume that contains them may be read in few hours and by that means no injustice can be done which is not immediately made evident 2. Axioms are not rightly grounded upon judged Cases but Cases are to be judged according to Axioms the certain is not proved by the uncertain but the uncertain by the certain and every thing is to be esteemed uncertain till it be proved to be certain Axioms in Law are as in Mathematicks evident to common sense and nothing is to be taken for an Axiom that is not so Euclid dos not prove his Axioms by his Propositions but his Propositions which are abstruse by such Axioms as are evident to all The Axioms of our Law do not receive their Authority from Coke or Hales but Coke and Hales deserve praise for giving judgment according to such as are undeniably true 3. The Judges receive their Commissions from the King and perhaps it may be said that the Custom of naming them is grounded upon a right with which he is entrusted but their power is from the Law as that of the King also is For he who has none originally in himself can give none unless it be first conserred upon him I know not how he can well perform his Oath to govern according to Law unless he execute the power with which he is entrusted in naming those men to be Judges whom in his conscience and by the advice of his Council he thinks the best and ablest to perform that Office But both he and they are to learn their duty from that Law by which they are and which allots to every one his proper work As the Law intends that men should be made Judges for their integrity and knowledg in the Law and that it ought not to be imagined that the King will break his trust by chusing such as are not so till the violation be evident nothing is more reasonable than to intend that the Judges so qualified should instruct the King in matters of Law But that he who may be a child over aged or otherwise ignorant and uncapable should instruct the Judges is equally absurd as for a blind man to be a guide to those who have the best eyes and so abhorrent from the meaning of the Law that the Judges as I said before are sworn to do justice according to the Laws without any regard to the King's words letters or commands If they are therefore to act according to a set rule from which they may not depart what command soever they receive they do not act by a power from him but by one that is above both This is commonly confess'd and tho some Judges have bin found in several ages who in hopes of reward and preferment have made little account of their Oath yet the success that many of them have had may reasonably deter others from following their example and if there are not more instances in this kind no better reason can be given than that Nations do frequently fail by being too remiss in asserting their own rights or punishing offenders and hardly ever err on the severer side 4. Judgments are variously given in several States and Kingdoms but he who would find one where they lie in the breast of the King must go at least as far as Marocco Nay the Ambassador who was lately here from that place denied that they were absolutely in him However 't is certain that in England according to the Great Charter Judgments are passed by equals no man can be imprison'd disseiz'd of his Freehold depriv'd of Life or Limb unless by the sentence of his Peers The Kings of Judah did judg and were judged and the Judgments they gave were in and with the Sanhedrim In England the Kings do not judg but are judged and Bracton says That in receiving justice the King is equal to another man which could not be if judgments were given by him and he were exempted from the judgment of all by that Law which has put all judgments into the hands of the People This power is executed by them in grand or petty Juries and the Judges are assistants to them in explaining the difficult points of the Law in which 't is presumed they should be learned The strength of every judgment consists in the verdict of these Juries which the Judges do not give but pronounce or declare and the same Law that makes good a verdict given contrary to the advice or direction of the Judges exposes them to the utmost penalties if upon their own heads or a command from the King they should presume to give a Sentence without or contrary to a Verdict and no pretensions to a power of interpreting the Law can exempt them if they break it The power also with which the Judges are entrusted is but of a moderate extent and to be executed bona fide Prevarications are capital as they proved to Tresilian Empson Dudley and many others Nay even in special Verdicts the Judges are only assistants to the Juries who find it specially
and Life than by the performance of his Oath and accomplishing the ends of his election They neither took him to be the giver or interpreter of their Laws and would not suffer him to violate those of their Ancestors In this way they always continued and tho perhaps they might want skill to fall upon the surest and easiest means of restraining the Lusts of Princes yet they maintained their rights so well that the wisest Princes seldom invaded them and the success of those who were so foolish to attempt it was such as may justly deter others from following their unprosperous Examples We have had no King since William the First more hardy than Henry the 8th and yet he so intirely acknowledged the power of making changing and repealing Laws to be in the Parliament as never to attempt any extraordinary thing otherwise than by their Authority It was not he but the Parliament that dissolved the Abbies He did not take their Lands to himself but receiv'd what the Parliament thought fit to give him He did not reject the Supremacy of the Pope nor assume any other power in spiritual matters than the Parliament conferred upon him The intricacies of his Marriages and the legitimation of his Children was settled by the same Power At least one of his Daughters could not inherit the Crown upon any other Title they who gave him a power to dispose of the Crown by will might have given it to his Groom and he was too haughty to ask it from them if he had it in himself which he must have had if the Laws and Judicatures had bin in his hand This is farther evidenced by what passed in the Tower between Sir Thomas Moor and Rich the King's Sollicitor who asking if it would not be treason to oppose Richard Rich if the Parliament should make him King Moor said that was Casus levis for the Parliament could make and depose Kings as they thought fit and then as more conducing to his own case asked Rich if the Parliament should enact that God should not be God whether such as did not submit should be esteemed Traitors 'T is evident that a man of the acuteness and learning of Sir Tho. Moor would not have made use of such an Argument to avoid the necessity of obeying what the Parliament had ordained by shewing his Case to be of a nature far above the power of man unless it had bin confessed by all men that the Parliament could do whatsoever lay within the reach of human power This may be enough to prove that the King cannot have a power over the Law and if he has it not the power of interpreting Laws is absurdly attributed to him since it is founded upon a supposition that he can make them which is false SECT XXVII Magna Charta was not the Original but a Declaration of the English Liberties The King's Power is not restrained but created by that and other Laws and the Nation that made them can only correct the defects of them I Agree with our Author that Magna Charta was not made to restrain the absolute Authority for no such thing was in being or pretended the folly of such visions seeming to have bin reserved to compleat the misfortunes and ignominy of our age but it was to assert the native and original Liberties of our Nation by the confession of the King then being that neither he nor his Successors should any way encroach upon them and it cannot be said that the power of Kings is diminished by that or any other Law for as they are Kings only by Law the Law may confer power upon one in particular or upon him and his Successors but can take nothing from them because they have nothing except what is given to them But as that which the Law gives is given by those who make the Law they only are capable of judging whether he to whom they gave it do well or ill imploy that power and consequently are only fit to correct the defects that may be found in it Therefore tho I should confess that faults may be found in many Statutes and that the whole body of them is greatly defective it will not follow that the compendious way of referring all to the will of the King should be taken But what defects soever may be in our Law the disease is not so great to require extreme remedies and we may hope for a cheaper cure Our Law may possibly have given away too much from the People and provided only insufficient defences of our Liberties against the encroachments of bad Princes but none who are not in judgment and honesty like to our Author can propose sor a remedy to the evils that proceed from the error of giving too much the resignation of all the rest to them Whatever he says 't is evident that he knows this to be true when tho he denies that the power of Kings can be restrained by Acts of Parliament he endeavours to take advantage of such clauses as were either fraudulently inserted by the King's Officers who till the days of Henry the fifth for the most part had the penning of the publick Acts or through negligence did not fully explain the intentions of the Legislators which would be to no purpose if all were put into the hands of the King by a general Law from God that no human power could diminish or enlarge and as his last shift would obliquely put all into the power of the King by giving him a right of interpreting the Law and judging such cases as are not clearly decided which would be equally impertinent if he had openly and plainly a right of determining all things according to his will But what defects soever may be in any Statutes no great inconveniences could probably ensue if that for annual Parliaments was observed as of right it ought to be Nothing is more unlikely than that a great Assembly of eminent and chosen men should make a Law evidently destructive to their own designs and no mischief that might emerge upon the discovery of a mistake could be so extreme that the cure might not be deferr'd till the meeting of the Parliament or at least forty days in which time the King may call one if that which the Law has fixed seem to be too long If he fail of this he performs not his trust and he that would reward such a breach of it with a vast and uncontrolable power may be justly thought equal in madness to our Author who by forbidding us to examine the titles of Kings and enjoyning an intire veneration of the power by what means soever obtained encourages the worst of men to murder the best of Princes with an assurance that if they prosper they shall enjoy all the honors and advantages that this World can afford Princes are not much more beholden to him for the haughty language he puts into their mouths it having bin observed that the worst are always most
person or a few were delegated by many For they who have a right inherent in themselves may resign it to others and they who can give a Power to others may exercise it themselves unless they recede from it by their own act for it is only matter of convenience of which they alone can be the Judges because 't is for themselves only that they judg If this were not so it would be very prejudicial to Kings for 't is certain that Cassivellaunus Caractatus Arviragus Galgacus Hengist Horsa and others amongst the Britans and Saxons what name soever may have bin abusively given to them were only temporary Magistrates chosen upon occasion of present Wars but we know of no time in which the Britans had not their Great Council to determine their most important Affairs and the Saxons in their own Country had their Councils where all were present and in which Tacitus assures us they dispatched their greatest business These were the same with the Micklegemots which they afterwards held here and might have bin called by the same name if Tacitus had spoken Dutch If a People therefore have not a power to create at any time a Magistracy which they had not before none could be created at all for no Magistracy is eternal And if for the validity of the Constitution it be necessary that the beginning must be unknown or that no other could have bin before it the Monarchy amongst us cannot be established upon any right for tho our Ancestors had their Councils and Magistrates as well here as in Germany they had no Monarchs This appears plainly by the testimony of Cesar and Tacitus and our later Histories show that as soon as the Saxons came into this Country they had their Micklegemots which were general Assemblies of the Noble and Free men who had in themselves the Power of the Nation and tho when they increased in numbers they erected seven Kingdoms yet every one retained the same usage within it self These Assemblies were evidently the same in power with our Parliaments and tho they differ'd in name or form it matters not for they who could act in the one could not but have a power of instituting the other that is the same people that could meet together in their own persons and according to their own pleasure order all matters relating to themselves whilst three of four Counties only were under one Government and their numbers were not so great or their habitation so far distant that they might not meet altogether without inconvenience with the same right might depute others to represent them when being joined in one no place was capable of receiving so great a multitude and that the Frontiers would have bin exposed to the danger of foreign Invasions if any such thing had bin practised But if the Authority of Parliaments for many Ages representing the whole Nation were less to be valued as our Author insinuates because they could not represent the whole when it was not joined in one body that of Kings must come to nothing for there could be no one King over all when the Nation was divided into seven distinct Governments And 't is most absurd to think that the Nation which had seven great Councils or Micklegemots at the same time they had seven Kingdoms could not as well unite the seven Councils as the seven Kingdoms into one 'T is to as little purpose to say that the Nation did not unite it self but the several parcels came to be inherited by one for that one could inherit no more from the others than what they had and the seven being only Magistrates set up by the Micklegemots c. the one must be so also And 't is neither reasonable to imagine nor possible to prove that a fierce Nation jealous of Liberty and who had obstinately defended it in Germany against all Invaders should conquer this Country to enslave themselves and purchase nothing by their valour but that servitude which they abhorred or be less free when they were united into one state than they had bin when they were divided into seven and least of all that one man could first subdue his own People and then all the rest when by endeavouring to subdue his own he had broken the trust reposed in him and lost the right conferred upon him and without them had not power to subdue any But as it is my fate almost ever to dissent from our Author I affirm that the variety of Government which is observed to have bin amongst the Saxons who in some Ages were divided in others united sometimes under Captains in other times under Kings sometimes meeting personally in the Micklegemots sometimes by their Delegates in the Wittenagemots dos evidently testify that they ordered all things according to their own pleasure which being the utmost Act of Liberty it remained inviolable under all those changes as we have already proved by the confession of Offa Ina Alfred Canutus Edward and other particular as well as universal Kings And we may be sure those of the Norman Race can have no more power since they came in by same way and swore to govern by the same Laws 2. I am no way concerned in our Author's doubt Whether Parliaments did in those days consist of Nobility and Clergy or whether the Commons were also called For if it were true as he asserts that according to the eternal Law of God and Nature there can be no Government in the World but that of an absolute Monarch whose Sovereign Majesty can be diminished by no Law or Custom there could be no Parliaments or other Magistracies that did not derive their power and being from his Will But having proved that the Saxons had their general Councils and Assemblies when they had no Kings that by them Kings were made and the greatest Affairs determined whether they had Kings or not it can be of no importance whether in one or more Ages the Commons had a part in the Government or not For the same Power that instituted a Parliament without them might when they thought fit receive them into it or rather if they who had the Government in their hands did for reasons known to themselves recede from the exercise of it they might resume it when they pleased Nevertheless it may be worth our pains to enquire what our Author means by Nobility If such as at this day by means of Patents obtained for mony or by favour without any regard to merit in the persons or their Ancestors are called Dukes Marquesses c. I give him leave to impute as late and base an Original to them as he pleases without fearing that the Rights of our Nation can thereby be impaired and am content that if the King do not think fit to support the Dignity of his own Creatures they may fall to the ground But if by Noblemen we are to understand such as have bin ennobled by the virtues of their Ancestors manifested in services done
according to the variety of times and other occurrences We have such footsteps remaining of the name of Baron as plainly shew the signification of it The Barons of London and the Cinq Ports are known to be only the Freemen of those places In the petty Court-Barons every man who may be of a Jury is a Baron These are Noblemen for there are noble Nations as well as noble men in Nations The Mammalukes accounted themselves to be all noble tho born slaves and when they had ennobled themselves by the use of Arms they look'd upon the noblest of the Egyptians as their slaves Tertullian writing not to some eminent men but to the whole People of Carthage calls them Antiquitate Nobiles Nobilitate felices Such were the Saxons ennobled by a perpetual application to those exercises that belong to Noblemen and an abhorrence to any thing that is vile and sordid Lest this should seem far fetch'd to those who please themselves with cavilling they are to know that the same General Councils are expressed by other Authors in other words They are called The General Council of the Bishops Noblemen Counts all the wise men Elders and People of the whole Kingdom in the time of Ina. In that of Edward the elder The Great Council of the Bishops Abbots Noblemen and People William of Malmsbury calls them The General Senat and Assembly of the People Sometimes they are in short called Clergy and People but all express the same power neither received from nor limitable by Kings who are always said to be chosen or made and sometimes deposed by them William the Norman found and left the Nation in this condition Henry the second John and Henry third who had nothing but what was conferred upon them by the same Clergy and People did so too Magna Charta could give nothing to the People who in themselves had all and only reduced into a small Volume the Rights which the Nation was resolved to maintain brought the King to confess they were perpetually inherent and time out of mind enjoyed and to swear that he would no way violate them if he did he was ipso facto excommunicated and being thereby declared to be an execrable perjur'd Person they knew how to deal with him This Act has bin confirmed by thirty Parliaments and the proceedings with Kings who have violated their Oaths as well before as after the time of Henry the third which have bin already mentioned are sufficient to shew that England has always bin governed by it self and never acknowledged any other Lord than such as they thought fit to set up SECT XXIX The King was never Master of the Soil THOSE who without regard to truth resolve to insist upon such points as they think may serve their designs when they find it cannot be denied that the powers before mentioned have bin exercised by the English and other Nations say that they were the concessions of Kings who being masters of the Soil might bestow parcels upon some Persons with such conditions as they pleased retaining to themselves the supreme dominion of the whole and having already as they think made them the Fountains of Honour they proceed to make them also the Fountains of Property and for proof of this alledg that all Lands tho held of mean Lords do by their Tenures at last result upon the King as the Head from whom they are enjoyed This might be of force if it were true but matters of the highest importance requiring a most evident proof we are to examine First if it be possible and in the next place if it be true 1. For the first No man can give what he has not Whoever therefore will pretend that the King has bestowed this propriety must prove that he had it in himself I confess that the Kings of Spain and Portugal obtained from the Pope grants of the Territories they possessed in the West-Indies and this might be of some strength if the Pope as Vicar of Christ had an absolute dominion over the whole earth but if that fail the whole falls to the ground and he is ridiculously liberal of that which no way belongs to him My business is not to dispute that point but before it can have any influence upon our Affairs our Kings are to prove that they are Lords of England upon the same Title or some other equivalent to it When that is done we shall know upon whom they have a dependence and may at leisure consider whether we ought to acknowledg and submit to such a Power or give reasons for our refusal But there being no such thing in our present case their property must be grounded upon something else or we may justly conclude they have none In order to this 't is hardly worth the pains to search into the obscure remains of the British Histories For when the Romans deserted our Island they did not confer the right they had whether more or less upon any man but left the enjoyment of it to the poor remainders of the Nation and their own established Colonies who were grown to be one People with the Natives The Saxons came under the conduct of Hengist and Horsa who seem to have bin sturdy Pirats but did not that I can learn bear any Characters in their persons of the so much admired Sovereign Majesty that should give them an absolute dominion or propriety either in their own Country or any other they should set their feet upon They came with about a hundred men and chusing rather to serve Vortigern than to depend upon what they could get by rapine at Sea lived upon a small proportion of Land by him allotted to them Tho this seems to be but a slender encouragement yet it was enough to invite many others to follow their Example and Fortune so that their number increasing the County of Kent was given to them under the obligation of serving the Britans in their Wars Not long after Lands in Northumberland were bestowed upon another company of them with the same condition This was all the Title they had to what they enjoyed till they treacherously killed four hundred and sixty or as William of Malmsbury says three hundred principal men of the British Nobility and made Vortigern Prisoner who had bin so much their Benefactor that he seems never to have deserved well but from them and to have incens'd the Britans by the favour he shew'd them as much as by the worst of his Vices And certainly actions of this kind composed of falshood and cruelty can never create a right in the opinion of any better men than Filmer and his Disciples who think that the power only is to be regarded and not the means by which it is obtained But tho it should be granted that a right had bin thus acquired it must accrue to the Nation not to Hengist and Horsa If such an acquisition be called a Conquest the benefit must belong to
those that conquer'd This was not the work of two men and those who had bin free at home can never be thought to have left their own Country to fight as slaves for the glory and profit of two men in another It cannot be said that their wants compelled them for their Leaders suffer'd the same and could not be relieved but by their assistance and whether their enterprize was good or bad just or unjust it was the same to all No one man could have any right peculiar to himself unless they who gained it did confer it upon him and 't is no way probable that they who in their own Country had kept their Princes within very narrow limits as has bin proved should resign themselves and all they had as soon as they came hither But we have already shewn that they always continued most obstinate defenders of their Liberty and the Government to which they had bin accustomed that they managed it by themselves and acknowledged no other Laws than their own Nay if they had made such a resignation of their Right as was necessary to create one in their Leaders it would be enough to overthrow the proposition for 't is not then the Leader that gives to the People but the People to the Leader If the people had not a right to give what they did give none was conferred upon the receiver if they had a right he that should pretend to derive a benefit from thence must prove the grant that the nature and intention of it may appear 2. To the second If it be said that Records testify all Grants to have bin originally from the King I answer That tho it were confessed which I absolutely deny and affirm that our Rights and Liberties are innate inherent and enjoy'd time out of mind before we had Kings it could be nothing to the question which is concerning Reason and Justice and if they are wanting the defect can never be supplied by any matter of fact tho never so clearly proved Or if a Right be pretended to be grounded upon a matter of fact the thing to be proved is that the people did really confer such a right upon the first or some other Kings And if no such thing do appear the proceedings of one or more Kings as if they had it can be of no value But in the present case no such grant is pretended to have bin made either to the first or to any of the following Kings the Right they had not their Successors could not inherit and consequently cannot have it or at most no better title to it than that of Usurpation But as they who enquire for truth ought not to deny or conceal any thing I may grant that Mannors c. were enjoyed by tenure from Kings but that will no way prejudice the cause I defend nor signify more than that the Countries which the Saxons had acquired were to be divided among them and to avoid the quarrels that might arise if every man took upon him to seize what he could a certain method of making the distribution was necessarily to be fixed and it was fit that every man should have something in his own hands to justify his Title to what he possessed according to which controversies should be determined This must be testified by some body and no man could be so fit or of so much credit as he who was chief among them and this is no more than is usual in all the Societies of the World The Mayor of every Corporation the Speaker or Clerk of the House of Peers or House of Commons the first President of every Parliament or Presidial in France the Consul Burgermaster Advoyer or Bailiff in every free Town of Holland Germany or Switzerland sign the publick Acts that pass in those places The Dukes of Venice and Genoa do the like tho they have no other power than what is conferred upon them and of themselves can do little or nothing The Grants of our Kings are of the same nature tho the words mero motu nostro seem to imply the contrary sor Kings speak always in the plural number to shew that they do not act for themselves but for the Societies over which they are placed and all the veneration that is or can be given to their Acts dos not exalt them but those from whom their Authority is derived and for whom they are to execute The Tyrants of the East and other Barbarians whose power is most absolute speak in the single number as appears by the decrees of Nabuchodonosor Cyrus Darius and Abasaerus recited in Scripture with others that we hear of daily from those parts but wheresoever there is any thing of civility or regularity in Government the Prince uses the plural to shew that he acts in a publick capacity From hence says Grotius the rights of Kings to send Ambassadors make Leagues c. do arise the confederacies made by them do not terminate with their lives because they are not for themselves they speak not in their own Persons but as representing their People and ae King who is depriv'd of his Kingdom loses the right of sending Ambassadors because he can no longer speak for those who by their own consent or by a foreign force are cut off from him The question is not whether such a one be justly or unjustly deprived sor that concerns only those who do it or suffer it but whether he can oblige the People and 't is ridiculous for any Nation to treat with a man that cannot perform what shall be agreed or for him to stipulate that which can oblige and will be made good only by himself But tho much may be left to the discretion of Kings in the distribution of Lands and the like yet it no way diminishes the right of the People nor consers any upon them otherwise to dispose of what belongs to the publick than may tend to the common good and the accomplishment of those ends for which they are entrusted Nay if it were true that a conquered Country did belong to the Crown the King could not dispose of it because 't is annexed to the Office and not alienable by the Person This is not only found in regular mixed Monarchies as in Sweden where the Grants made by the last Kings have bin lately rescinded by the General Assembly of Estates as contrary to Law but even in the most absolute as in France where the present King who has stretched his power to the utmost has lately acknowledged that he cannot do it and according to the known maxim of the State that the demeasnes of the Crown which are designed for the defraying of publick Charges cannot be alienated all the Grants made within the last fifteen years have bin annulled even those who had bought Lands of the Crown have bin called to account and the Sums given being compared with the profits received and a moderate interest allowed to the purchasers so much
of the principal as remained due to them has bin repay'd and the Lands resumed SECT XXX Henry the First was King of England by as good a Title as any of his Predecessors or Successors HAVING made it appear as I suppose that the antient Nobility of England was composed of such men as had bin ennobled by bearing Arms in the defence or enlargement of the Common-wealth that the Dukes Earls c. were those who commanded them that they and their dependents received Lands for such services under an obligation of continuing to render the like and according to their several degrees and proportions to provide and maintain Horses Arms and Men for the same uses it cannot be denied that they were such Gentlemen and Lords of Mannors as we now call Commoners together with the Freeholders and such as in war were found most able to be their Leaders Of these the Micklegemots Wittenagemots and other publick Assemblies did consist and nothing can be more absurd than to assign the names and rights of Duke Earl and Vicount which were names of Offices to those who have not the Offices and are no way fit for them If our Author therefore had said that such as these who had always composed the great Councils of our Nation had in favour of Henry the First bestowed the Crown upon him as they had done upon his Father and Brother I should agree with him but 't is the utmost extravagance to say that he who had neither title nor possession should give the power to those who had always bin in the possession of it and exercised it in giving to him whatsoever he had But I most wonder he should so far forget himself to call this Henry a Usurper and detract from the validity of his Acts because he had no title whereas there neither is was or can be a Usurper if there be any truth in his Doctrine for he plainly tells us we are only to look to the power and not at all to the means and ways by which it is obtained and making no difference between a King and a Tyrant enjoins an equal submission to the commands of both If this were only a slip of his Pen and he did really take this Henry to be a Usurper because he had not a good title I should desire to know the marks by which a lawful King is distinguished from a Usurper and in what a just Title dos consist If he place it in an hereditary Succession we ought to be informed whether this right must be deduced from one universal Lord of Mankind or from a particular Lord of every People If from the universal Lord the same descent that gives him a right to the dominion of any one Country enslaves the whole world to him if from the particular Lord of one place proof must be given how he came to be so for if there was a defect in the first it can never be repaired and the possession is no more than a continued Usurpation But having already proved the absurdity of any pretence to either I shall forbear the repetition and only say that if the course of Succession may never be justly interrupted the family of Meroveus could not have had any right to the Crown of France Pepin was a Usurper if it must for ever have continued in the descendents of Meroveus and Hugh Capet could have no title if the race of Pepin might not be dispossess'd I leave our Author to dispute this point with the King of France and when he has so far convinced him that he is a Usurper as to perswade him to resign his Crown to the house of Austria claiming from Pharamond or to that of Lorrain as descended from Pepin I can give him half a dozen more knots which will not be with less difficulty untied and which instead of establishing the titles of such Kings as are known to us will overthrow them all unless a right be given to usurpation or the consent of a People do confer it But if there is such a thing as a Usurper and a rule by which men may judg of Usurpation 't is not only lawful but necessary for us to examine the titles of such as go under the name of Kings that we may know whether they are truly so or not lest through ignorance we chance to give the veneration and obedience that is due to a King to one who is not a King and deny it to him who by an uninterruptible line of Descent is our natural Lord and thereby prefer the worst of men and our most bitter enemy before the Person we ought to look upon as our Father and if this prove dangerous to one or more Kings 't is our Author's fault not mine If there be no Usurper nor rule of distinguishing him from a lawful Prince Filmer is the worst of all triflers and impostors who grounds his Arguments in the most serious matters upon what he esteems to be false but the truth is he seems to have set himself against humanity and common sense as much as against Law and Virtue and if he who so frequently contradicts himself can be said to mean any thing he would authorize rapine and murder and perswade us to account those to be rightful Kings who by treachery and other unjust means overthrow the right of Descent which he pretends to esteem sacred as well as the Liberties of Nations which by better judges are thought to be so and gives the odious name of usurpation to the advancement of one who is made King by the consent of a willing People But if Henry the First were a Usurper I desire to know whether the same name belongs to all our Kings or which of them deserves a better that we may understand whose acts ought to be reputed legal and to whose Descent we owe veneration or whether we are wholly exempted from all for I cannot see a possibility of fixing the guilt of Usurpation upon Henry the First without involving many if not all our Kings in the same If his title was not good because his Brother Robert was still living that of Rufus is by the same reason overthrown and William their sather being a bastard could have none This fundamental defect could never be repair'd for the Successors could inherit no more than the right of the first which was nothing Stephen could deduce no title either from Norman or Saxon whatsoever Henry the second pretended must be from his Mother Maud and any other might have bin preferred before her as well as he If her title was from the Normans it must be void since they had none and the story of Edgar Atheling is too impertinent to deserve mention But however it could be of no advantage to her for David King of Scotland Brother to her Mother from whom only her title could be derived was then alive with his Son Henry who dying not long after left three Sons and three Daughters whose posterity being
distributed into many Families of Scotland remains to this day and if proximity of blood is to be consider'd ought always to have bin preferr'd before her and her descendents unless there be a Law that gives the preference to Daughters before Sons What right soever Henry the second had it must necessarily have perished with him all his Children having bin begotten in manifest Adultery on Eleanor of Gascony during the life of Lewis King of France her first Husband and nothing could be alledged to colour the business but a dispensation from the Pope directly against the Law of God and the words of our Saviour who says That a Wife cannot be put away unless for Adultery and he that marrieth her that is put away committeth Adultery The pollution of this spring is not to be cured but tho it should pass unregarded no one part of the Succession since that time has remained intire John was preferred before Arthur his elder brother's Son Edward the third was made King by the deposition of his Father Henry the fourth by that of Richard the 2d If the house of Mortimer or York had the right Henry the 4th 5th and 6th were not Kings and all who claim under them have no title However Richard the third could have none for the Children of his elder Brother the Duke of Clarence were then living The Children of Edward the fourth may be suspected of bastardy and tho it may have bin otherwise yet that matter is not so clear as things of such importance ought to be and the consequence may reach very far But tho that scruple were removed 't is certain that Henry the 7th was not King in the right of his Wife Elizabeth for he reigned before and after her and for his other titles we may believe Philip de Commines who says He had neither cross nor pile If Henry the eighth had a right in himself or from his Mother he should have reigned immediately after her death which he never pretended nor to succeed till his Father was dead thereby acknowledging he had no right but from him unless the Parliament and People can give it The like may be said of his Children Mary could have no title if she was a Bastard begotten in Incest but if her Mother's marriage was good and she legitimate Elizabeth could have none Yet all these were lawful Kings and Queens their Acts continue in force to this day to all intents and purposes the Parliament and People made them to be so when they had no other title The Parliament and People therefore have the power of making Kings Those who are so made are not Usurpers We have had none but such for more than seven hundred years They were therefore lawful Kings or this Nation has had none in all that time and if our Author like this conclusion the account from whence it is drawn may without difficulty be carried as high as our English Histories do reach This being built upon the steddy Foundation of Law History and Reason is not to be removed by any man's opinion especially by one accompanied with such circumstances as Sir Walter Raleigh was in during the last years of his life And there is something of baseness as well as prevarication in turning the words of an eminent Person reduced to great difficulties to a sense no way agreeing with his former actions or writings and no less tending to impair his reputation than to deceive others Our Author is highly guilty of both in citing Sir Walter Raleigh to invalidate the great Charter of our Liberties as begun by Vsurpation and shewed to the world by Rebellion whereas no such thing nor any thing like it in word or principle can be found in the works that deserve to go under his name The Dialogue in question with some other small pieces published after his death deserve to be esteemed spurious Or if from a desire of life when he knew his head lay under the Ax he was brought to say things no way agreeing with what he had formerly profess'd they ought rather to be buried in oblivion than produced to blemish his memory But that the publick Cause may not suffer by his fault 't is convenient the world should be informed that tho he was a well qualified Gentleman yet his Morals were no way exact as appears by his dealings with the brave Earl of Essex And he was so well assisted in his History of the World that an ordinary man with the same helps might have perform'd the same things Neither ought it to be accounted strange if that which he writ by himself had the tincture of another spirit when he was deprived of that assistance tho his life had not depended upon the will of the Prince and he had never said That the bonds of Subjects to their Kings should always be wrought out of Iron and those of Kings to their Subjects out of Cobwebs SECT XXXI Free Nations have a right of meeting when and where they please unless they deprive themselves of it APerverted Judgment always leads men into a wrong way and perswades them to believe that those things favour their cause that utterly overthrow it For a proof of this I desire our Author's words may be consider'd In the former Parliaments says he instituted and continued since Henry the first his 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 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 unto the multitude to assemble themselves when and where they pleased to bestow the Sovereignty and by pactions to limit and direct the exercise of it And I say that Nations being naturally free may meet when and where they please may dispose of the Soveraignty and may direct or limit the exercise of it unless by their own act they have deprived themselves of that right and there could never have bin a lawful Assembly of any People in the world if they had not had that power in themselves It was proved in the preceding Section that all our Kings having no title were no more than what the Nobility and People made them to be that they could have no power but what was given to them and could confer none except what they had received If they can therefore call Parliaments the power of calling them must have bin given to them and could not be given by any who had it not in themselves The Israelites met together and chose Ehud Gideon Samson Jephtha and others to be their Leaders whom they judged fit to deliver them from their Enemies By the same right they assembled at Mispeth to make War against the Tribe of Benjamin when Justice was denied to be done against those who had villanously abused the Levites Concubine In the like manner they would have made Gideon King but
Princes that have bin in the world who having their power for life and leaving it to descend to their children have wanted the Virtues requir'd for the performance of their duty And I should less fear to be guilty of an absurdity in saying that a Nation might every year change its Head than that he can be the Head who cares not for the Members nor understands the things that conduce to their good most especially if he set up an Interest in himself against them It cannot be said that these are imaginary cases and that no Prince dos these things for the proof is too easy and the examples too numerous Caligula could not have wished the Romans but one Head that he might cut it off at once if he had bin that Head and had advanced no Interest contrary to that of the Members Nero had not burn'd the City of Rome if his concernments had bin inseparably united to those of the people He who caused above three hundred thousand of his innocent unarmed Subjects to be murder'd and fill'd his whole Kingdom with fire and blood did set up a personal Interest repugnant to that of the Nation and no better testimony can be requir'd to shew that he did so than a Letter written by his Son to take off the penalty due to one of the chief Ministers of those cruelties for this reason that what he had done was by the command and for the service of his Royal Father King John did not pursue the advantage of his people when he endeavoured to subject them to the Pope or the Moors And whatever Prince seeks assistance from foreign Powers or makes Leagues with any stranger or enemy for his own advantage against his people however secret the Treaty may be declares himself not to be the Head but an enemy to them The Head cannot stand in need of an exterior help against the Body nor subsist when divided from it He therefore that courts such an assistance divides himself from the Body and if he do subsist it must be by a life he has in himself distinct from that of the Body which the Head cannot have But besides these enormities that testify the most wicked rage and fury in the highest degree there is another practice which no man that knows the world can deny to be common with Princes and incompatible with the nature of a Head The Head cannot desire to draw all the nourishment of the Body to it self nor more than a due proportion If the rest of the parts are sick weak or cold the Head suffers equally with them and if they perish must perish also Let this be compared with the actions of many Princes we know and we shall soon see which of them are Heads of their people If the Gold brought from the Indies has bin equally distributed by the Kings of Spain to the body of that Nation I consent they may be called the Heads If the Kings of France assume no more of the Riches of that great Kingdom than their due proportion let them also wear that honourable name But if the naked backs and empty bellies of their miserable Subjects evince the contrary it can by no means belong to them If those great Nations wast and languish if nothing be so common in the best Provinces belonging to them as misery famine and all the effects of the most outragious oppression whilst their Princes and Favorites possess such treasures as the most wanton prodigality cannot exhaust if that which is gained by the sweat of so many millions of men be torn out of the mouths of their starving Wives and Children to foment the vices of those luxurious Courts or reward the Ministers of their lusts the nourishment is not distributed equally to all the parts of the body the oeconomy of the whole is overthrown and they who do these things cannot be the Heads nor parts of the Body but something distinct from and repugnant to it 'T is not therefore he who is found in or advanced to the place of the Head who is truly the Head 'T is not he who ought but he who dos perform the office of the Head that deserves the name and privileges belonging to the Head If our Another theresore will perswade us that any King is Head of his People he must do it by Arguments peculiarly relating to him since those in general are found to be false If he say that the King as King may direct or correct the people and that the power of determining all controversies must be referred to him because they may be mistaken he must show that the King is infallible for unless he do so the wound is not cured This also must be by some other way than by saying he is their Head for such Powers belong not to the office of the Head and we see that all Kings do not deserve that name Many of them want both understanding and will to perform the functions of the Head and many act directly contrary in the whole course of their Government If any therefore among them have merited the glorious name of Heads of Nations it must have bin by their personal Virtues by a vigilant care of the good of their People by an inseparable conjunction of interests with them by an ardent love to every member of the Society by a moderation of spirit affecting no undue Superiority or assuming any singular advantage which they are not willing to communicate to every part of the political body He who finds this merit in himself will scorn all the advantages that can be drawn from misapplied names He that knows such honor to be peculiarly due to him for being the best of Kings will never glory in that which may be common to him with the worst Nay whoever pretends by such general discourses as these of our Author to advance the particular Interests of any one King dos either know he is of no merit and that nothing can be said for him which will not as well agree with the worst of men or cares not what he says so he may do mischief and is well enough contented that he who is set up by such Maxims as a publick plague may fall in the ruin he brings upon the people SECT XL. Good Laws prescribe easy and safe Remedies against the Evils proceeding from the vices or infirmities of the Magistrate and when they fail they must be supplied THOSE who desire to advance the power of the Magistrate above the Law would perswade us that the difficulties and dangers of inquiring into his actions or opposing his will when employ'd in violence and injustice are so great that the remedy is always worse than the disease and that 't is better to suffer all the evils that may proceed from his infirmities and vices than to hazard the consequences of displeasing him But on the contrary I think and hope to prove 1. That in well-constituted Governments the remedies against ill Magistrates are easy
manifest this by the words Be it enacted by the Lords Spiritual and Temporal and Commons in Parliament assembled and by Authority of the same But King James says Filmer in his Law of free Monarchy affirms the contrary and it may be so yet that is nothing to us No man doubts that he desired it might be so in England but it dos not from thence appear that it is so The Law of a free Monarchy is nothing to us for that Monarchy is not free which is regulated by a Law not to be broken without the guilt of Perjury as he himself confessed in relation to ours As to the words cited from Hooker I can find no hurt in them To draw up the form of a good Law is a matter of invention and judgment but it receives the force of a Law from the power that enacts it We have no other reason for the paiment of Excise or Customs than that the Parliament has granted those Revenues to the King to defray the publick Charges Whatever therefore King James was pleased to say in his Books or in those written for him we do not so much as know that the killing of a King is Treason or to be punished with death otherwise than as it is enacted by Parliament and it was not always so for in the time of Ethelstan the Estimates of Lives were agreed in Parliament and that of a King valued at thirty thousand Thrymsae And if that Law had not bin alter'd by the Parliament it must have bin in force at this day It had bin in vain for a King to say he would have it otherwise for he is not created to make Laws but to govern according to such as are made and sworn to assent to such as shall be proposed He who thinks the Crown not worth accepting on these conditions may refuse it The words Le Roy le veult are only a pattern of the French fashions upon which some Kings have laid great stress and would no doubt have bin glad to introduce Car tel est nostre plaisir but that may prove a difficult matter Nay in France it self where that Stile and all the ranting expressions that please the vainest of men are in mode no Edict has the power of a Law till it be registred in Parliament This is not a mere ceremony as some pretend but all that is essential to a Law Nothing has bin more common than for those Parliaments to refuse Edicts sent to them by the King When John Chastel had at the instigation of the Jesuits stabb'd Henry the fourth in the Mouth and that Order had designed or executed many other execrable crimes they were banished out of the Kingdom by an Arrest of the Parliament of Paris Some other Parliaments registred the same but those of Tholouse and Bordeaux absolutely refused and notwithstanding all that the King could do the Jesuits continued at Tournon and many other places within their Precincts till the Arrest was revoked These proceedings are so displeasing to the Court that the most violent ways have bin often used to abolish them About the year 1650 Seguier then Chancellor of France was sent with a great number of Soldiers to oblige the Parliament of Paris to pass some Edicts upon which they had hesitated but he was so far from accomplishing his design that the People rose against him and he thought himself happy that he escaped with his Life If the Parliaments do not in all parts of the Kingdom continue in the Liberty of approving or rejecting all Edicts the Law is not altered but oppressed by the violence of the Sword And the Prince of Condé who was principally employ'd to do that work may as I suppose have had leisure to reflect upon those Actions and cannot but find reason to conclude that his excellent valour and conduct was used in a most noble exploit equally beneficial to his Country and himself However those who are skilled in the Laws of that Nation do still affirm that all publick Acts which are not duly examined and registred are void in themselves and can be of no force longer than the miserable People lies under the violence of Oppression which is all that could reasonably be said if a Pirat had the same power over them But whether the French have willingly offer'd their ears to be bor'd or have bin subdued by force it concerns us not Our Liberties depend not upon their will virtue or fortune how wretched and shameful soever their Slavery may be the evil is only to themselves We are to consider no human Laws but our own and if we have the spirit of our Ancestors we shall maintain them and die as free as they left us Le Roy le veut tho written in great Letters or pronounced in the most tragical manner can signify no more than that the King in performance of his Oath dos assent to such Laws as the Lords and Commons have agreed Without prejudice to themselves and their Liberties a People may suffer the King to advise with his Council upon what they propose Two eyes see more than one and human judgment is subject to errors Tho the Parliament consist of the most eminent men of the Nation yet when they intend good they may be mistaken They may sefely put a check upon themselves that they may farther consider the most important matters and correct the errors that may have bin committed if the King's Council do discover them but he can speak only by the advice of his Council and every man of them is with his head to answer for the advices he gives If the Parliament has not bin satisfied with the reasons given against any Law that they offer'd it has frequently pass'd and if they have bin satisfied 't was not the King but they that laid it aside He that is of another opinion may try whether Le Roy le veut can give the force of a Law to any thing conceived by the King his Council or any other than the Parliament But if no wise man will affirm that he can do it or deny that by his Oath he is obliged to assent to those that come from them he can neither have the Legislative power in himself nor any other part in it than what is necessarily to be performed by him as the Law prescribes I know not what our Author means by saying Le Roy le veut is the interpretative phrase pronounced at the passing of every Act of Parliament For if there be difficulty in any of them those words do no way remove it But the following part of the paragraph better deserves to be observed It was says he the antient custom for á long time until the days of Henry the fifth for the Kings when any Bill was brought to them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted as a Law But the custom of the
latter Kings hath bin so gracious as to allow always of the intire Bill as it passed both Houses He judiciously observes when our Kings began to be gracious and we to be free That King excepting the persecution for Religion in his time which is rather to be imputed to the ignorance of that age than to any evil in his own nature governed well and as all Princes who have bin virtuous and brave have always desired to preserve their Subjects Liberty which they knew to be the mother and nurse of their Valour fitting them for great and generous Enterprizes his care was to please them and to raise their Spirits But about the same time those detestable Arts by which the mixed Monarchies in this part of the world have bin every where terribly shaken and in many places totally overthrown began to be practised Charles the seventh of France under pretence of carrying on a War against him and his Son took upon him to raise Mony by his own Authority and we know how well that method has bin pursued The mischievous sagacity of his Son Lewis the 11th which is now called King-Craft was wholly exerted in the subversion of the Laws of France and the Nobility that supported them His Successors except only Lewis the 12th followed his example and in other Nations Ferdinand of Arragon James the third of Scotland and Henry the seventh of England were thought to imitate him the most Tho we have little reason to commend all the Princes that preceded Henry the fifth yet I am inclined to date the general impairing of our Government from the death of that King and his valiant Brothers His weak Son became a prey to a furious French woman who brought the Maxims of her own Country into ours and advanced the worst of villains to govern according to them These measures were pursued by Edward the fourth whose wants contracted by prodigality and debauchery were to be supplied by fraud and rapine The ambition cruelty and persidiousness of Richard the third the covetousness and malicious subtilty of Henry the seventh the violent lust rage and pride of Henry the 8th and the bigotted fury of Queen Mary instigated by the craft and malice of Spain perswaded me to believe that the English Liberty did not receive birth or growth from the favour and goodness of their gracious Princes But it seems all this is mistaken Henry the sixth was wise valiant and no way guided by his Wife Edward the sourth continent sober and contented with what the Nation gave him Richard the third mild gentle and faithful Henry the 7th sincere and satisfied with his own Henry the 8th humble temperate and just and Queen Mary a friend to our Country and Religion No less praises sure can be due to those who were so gracious to recede from their own right of picking what they pleased out of our Laws and to leave them intirely to us as they passed both Houses We are beholden to our Author for the discovery of these mysteries but tho he seems to have taken an Oath like that of the Gypsies when they enter into that virtuous Society never to speak one word of truth he is not so subtle in concealing his Lies All Kings were trusted with the publication of the Laws but all Kings did not falsify them Such as were not wicked and vicious or so weak as to be made subservient to the malice of their Ministers and Flatterers could never be drawn into the guilt of so infamous a cheat directly contrary to the Oath of their Coronation They swear to pass such Laws as the People chuse but if we will believe our Author they might have pick'd out whatever they pleased and falsly imposed upon the Nation as a Law made by the Lords and Commons that which they had modelled according to their own will and made to be different from or contrary to the intention of the Parliament The King's part in this fraud of which he boasts was little more than might have bin done by the Speaker or his Clerks They might have falfified an Act as well as the King tho they could not so well preserve themselves from punishment 'T is no wonder if for a while no stop was put to such an abominable Custom 'T was hard to think a King would be guilty of a fraud that were infamous in a Slave But that proved to be a small security when the worst of Slaves came to govern them Nevertheless 't is probable they proceeded cautioufly the first alterations were perhaps innocent or it may be for the best But when they had once found out the way they stuck at nothing that seemed for their purpose This was like the plague of Leprosy that could not be cured the house infected was to be demolished the poisonous plant must be torn up by the root the trust that had bin broken was to be abolished they who had perverted or frustrated the Law were no longer to be suffered to make the least alteration and that brave Prince readily joined with his People to extinguish the mischievous abuse that had bin introduced by some of his worthless Predecessors The worst and basest of them had continual disputes with their Parliaments and thought that whatever they could detract from the Liberty of the Nation would serve to advance their Prerogative They delighted in frauds and would have no other Ministers but such as would be the instruments of them Since their Word could not be made to pass for a Law they endeavoured to impose their own or their Servants inventions as Acts of Parliaments upon the deluded people and to make the best of them subservient to their corrupt Ends and pernicious Counsels This if it had continued might have overthrown all our Rights and deprived us of all that men can call good in the world But the Providence of God furnished our Ancestors with an opportunity of providing against so great so universal a mischief They had a wise and valiant Prince who scorned to encroach upon the Liberties of his Subjects and abhorred the detestable Arts by which they had bin impair'd He esteemed their courage strength and love to be his greatest advantage riches and glory He aimed at the conquest of France which was only to be effected by the bravery of a free and well-satisfied People Slaves will always be cowards and enemies to their Master By bringing his Subjects into that condition he must infallibly have ruined his own designs and made them unfit to fight either for him or themselves He desired not only that his People should be free during his time but that his Successors should not be able by oblique and fraudulent ways to enslave them If it be a reproach to us that Women have reigned over us 't is much more to the Princes that succeeded our Henry that none of them did so much imitate him in his Government as Queen Elizabeth She did not go about to mangle Acts
excelling all others in virtue can have no other just power than what the Laws give nor any title to the privileges of the Lord 's Anointed p. 250. Sect. 2. The Kings of Israel and Judah were under a Law not safely to be transgressed p. 262. Sect. 3. Samuel did not describe to the Israelites the glory of a free Monarchy but the evils the people should suffer that he might divert them from desiring a King p. 264. Sect. 4. No People can be obliged to suffer from their Kings what they have not a right to do p. 266. Sect. 5. The mischiefs suffer'd from wicked Kings are such as render it both reasonable and just for all Nations that have Virtue and Power to exert both in repelling them p. 270. Sect. 6. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches p. 273. Sect. 7. When the Israelites asked for such a King as the Nations about them had they asked for a Tyrant tho they did not call him so p. 277. Sect. 8. Vnder the name of Tribute no more is understood than what the Law of each Nation gives to the supreme Magistrate for the defraying of publick Charges to which the customs of the Romans or sufferings of the Jews have no relation p. 283. Sect. 9. Our own Laws confirm to us the enjoyment of our native Rights p. 288. Sect. 10. The words of St. Paul enjoyning obedience to higher Powers favour all sorts of Government no less than Monarchy p. 292. Sect. 11. That which is not just is not Law and that which is not Law ought not to be obeyed p. 300. Sect. 12. The right and power of a Magistrate depends upon his institution not upon his name p. 302. Sect. 13. Laws were made to direct and instruct Magistrates and if they will not be directed to restrain them p. 305. Sect. 14. Laws are not made by Kings not because they are busied in greater matters than doing Justice but because Nations will be governed by rule and not arbitrarily p. 309. Sect. 15. A general presumption that Kings will govern well is not a sufficient security to the people p. 314. Sect. 16. The observation of the Laws of Nature is absurdly expected from Tyrants who set themselves up against all Laws and he that subjects Kings to no other Law than what is common to Tyrants destroys their being p. 317. Sect. 17. Kings cannot be the interpreters of the Oaths they take p. 322. Sect. 18. The next in blood to deceased Kings cannot generally be said to be Kings till they are crowned p. 330. Sect. 19. The greatest enemy of a just Magistrate is he who endeavours to invalidate the Contract between him and the people or to corrupt their manners p. 341. Sect. 20. Vnjust commands are not to be obey'd and no man is obliged to suffer for not obeying such as are against Law p. 345. Sect. 21. It cannot be for the good of the People that the Magistrate have a Power above the Law And he is not a Magistrate who has not his Power by Law 348. Sect. 22. The rigor of the Law is to be temper'd by men of known integrity and judgment and not by the Prince who may be ignorant or vicious p. 354. Sect. 23. Aristotle proves that no man is to be intrusted with an Absolute Power by shewing that no one knows how to execute it but such a man as is not to be found p. 358. Sect. 24. The Power of Augustus Cesar was not given but usurped p. 360. Sect. 25. The Regal Power was not the first in this Nation nor necessarily to be continued tho it had bin the first p. 361. Sect. 26. That the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law p. 369. Sect. 27. Magna Charta was not the Original but a declaration of the English Liberties The King's Power is not restrained but created by that and other Laws and the Nation that made them can only correct the defects of them p. 370. Sect. 28. The English Nation has always bin governed by it self or its Representatives p. 379. Sect. 29. The King was never Master of the Soil p. 391. Sect. 30. Henry the first was King of England by as good a Title as any of his Predecessors or Successors p. 395. Sect. 31. Free Nations have a right of meeting when and where they please unless they deprive themselves of it p. 399. Sect. 32. The Powers of Kings are so various according to the Constitutions of several States that no consequence can be drawn to the prejudice or advantage of any one merely from the name p. 404. Sect. 33. The Liberty of a People is the Gift of God and Nature p. 406. Sect. 34. No veneration paid or honor confer'd upon a just and lawful Magistrate can diminish the liberty of a Nation p. 409. Sect. 35. The Authority given by our Law to the Acts performed by a King de facto detract nothing from the Peoples Right of creating whom they please p. 411. Sect. 36. The general revolt of a Nation cannot be called a Rebellion p. 413. Sect. 37. The English Government was not ill constituted the defects more lately observed proceeding from the change of manners and corruption of the times p. 418. Sect. 38. The power of calling and dissolving Parliaments is not simply in the King The variety of Customs in chusing Parliamentmen and the Errors a People may commit neither prove that Kings are or ought to be absolute p. 421. Sect. 39. Those Kings only are heads of the People who are good wise and seek to advance no Interest but that of the Publick p. 426. Sect. 40. Good Laws prescribe easy and safe Remedies against the Evils proceeding from the Vices or Infirmities of the Magistrate and when they fail they must be supplied p. 432. Sect. 41. The people for whom and by whom the Magistrate is created can only judg whether he rightly performs his Office or not p. 436. Sect. 42. The Person that wears the Crown cannot determine the Affairs which the Law refers to the King p. 440. Sect. 43. Proclamations are not Laws p. 445. Sect. 44. No People that is not free can substitute Delegates p. 450. Sect. 45. The Legislative Power is always Arbitrary and not to be trusted in the hands of any who are not bound to obey the Laws they make p. 455. Sect. 46. The coercive Power of the Law proceeds from the Authority of Parliament p. 457. ERRATA PAge 77. line 41. for Numbers read Members P. 113. l. 37. read Antiochus P. 197. l. 6. read acquired P. 229. l. 39. for nor read and. P. 269. l. 12. for for read from P. 282. l. 3. read should it P. 285. l. 42. read renounced P. 335. l. 41. for to read de P. 418. l. 20. for have read hâ—â— P. 429. l. 38. for them read him Potentiora Legiun quam hominum