a Law cannot be valid nor derogate from other Laws except in the said Law express mention be made of the said Derogation with a Notwithstanding to the Reglements set down in other Laws that are in Authority on that Subject De Decimis c. nuper Ought not they also in like manner to have declared and that very precisely too that they dispensed Charles II from keeping his Coronation-Oath and to have set down in very distinct terms that in case the King should think fit to call in an Army of French Dragoons to ravish their Wives and Daughters and to force all his Subjects to change their Religion they do not think it lawful to take up Arms against him or them for to repel their Violence 6ly They are to take notice that Charles II did never conceive that those Acts had changed the Government of the State. Do we not know that he offered to the Parliaments of Westminster and Oxford to impose such Conditions on the D. of York as the Parliament should judg necessary provided only the Succession might be assured to him now could any thing be more ridiculous and extravagant than this Proposition of the King had he believed that the Acts already past in his Favour had given him and his Successors a Right to overturn all without being able to be challenged or opposed by any one for so doing They themselves did suppose the same thing and went upon that Ground what else could be their meaning in Crowning James II if they supposed that he was in full and rightful Possession of the Government by virtue of the Succession without being obliged to take the Oaths by which the Kings of England oblige themselves to keep the Laws of the State. 7ly They ought to take notice that they themselves supposed that the Fundamental Laws of the State were not abolished I don't speak here of those loud Murmurs that were heard every where when James II by an Act of his Council of his own Authority raised the same Sums which had been granted to Charles II which he could not do without the Authority of Parliament nor of the Complaints that were generally made when he turned out my Lord Clarendon from being Lord Deputy of Ireland banish'd several Protestant Lords out of his Council and put Papists into all Offices whether Civil or Military I only take notice here of the Petition presented in the Name of the Clergy by the seven Bishops upon occasion of reading the Declaration for Liberty of Conscience for had they been of another opinion with what pretence of reason could they have complained of James II governing with an Arbitrary Power and his dispensing with the Laws Why in their Petition did they alledg those Acts of Parliament which had condemn'd that Power in 1673 when Charles II published his Proclamation for Liberty of Conscience These Acts of theirs upon this Supposal could not be accounted of otherwise than as Acts of Rebellion nor could they be made use of with a good Conscience after they had been convinc'd that the Fundamental Laws being repealed and abolished they were now subject to an arbitrary and unbounded Government Indeed we cannot enough commend the Constancy of the Clergy and those worthy Prelates who refused to read the Declaration of James II for Liberty of Conscience that Declaration being grounded upon the Power he attributed to himself of dispensing with the Laws But on the other Hand neither can we imagine any more convincing Proof to make out that at that Time they did not conceive any more than the whole State who so generally applauded them that they themselves as well as the whole State had cast themselves headlong into Slavery by their Oaths because the Power of the Kings of England was become unbounded and Arbitrary In a Word how ample an extent soever these Gentlemen may give to the Oath they have taken in pursuance of an Act of Parliament in the 13 Year of Charles II they must remember one Thing which is always supposed which is the natural Condition of all Oaths rebus sic stantibus c. ad naturam Things continuing in the same State for indeed as soon as things have changed their Nature or that Circumstances are altered there remains no more Obligation in Cases where exceptions are naturally supposed I am bound to Obey my Father in all Things this being what the Scripture expresly teacheth me but I am not bound to Obey him any farther than he Acts like a Father neither am I oblig'd to keep this Command of obeying him in all Things but only so far as the Things enjoyned by him are just and lawful I am bound to obey the King according to the Laws neither may I lawfully resist Him in his executing of the Laws or upon any pretext whatsoever take up Arms against him but if in stead of governing according to Law he useth his utmost Endeavours to overthrow the Society by destroying the Laws which are the Band of it then all the Oaths I have taken are no longer of any Force 't is my Right to Endeavour to preserve the Society which he goes about to overthrow and to oppose his Violence by taking up Arms against him and to put a stop to the unjust Proceedings of a Prince who declares himself an Enemy to the State by the ways which providence affords me for my Security But if after all these Considerations these Gentlemen will still maintain that they have taken these Oaths in so strait a Sense that nothing is capable of satisfying their Consciences we have great Reason to be Astonished how it was possible that Men of so Tender and Delicate a Conscience could take such Oaths which taken in their Sense do visibly overturn both the State and Religion Indeed there is no need of any ones being a Prophet to make him conceive that they were rather obliged in Conscience to refuse the taking of such Oaths and to fly to the End of the World rather than take them than they are bound to keep them with the hazard of the utter Ruin of their Native Country and their Religion or see them Perish without having any Power to Defend them as they are obliged by the Laws of nature and by all the Duties of the Society and Religion It has already been made out by several Writings that God seeming to spare and wink at the weakness of those who believ'd themselves thus fast bound and tied by their Oaths and destin'd to become Victimes to Popery and Tyranny has been pleas'd happily to deliver them from the trouble wherein they had involed themselves in sending them a Deliverer whose Rights in a War which James II. unjustly wageth against him are above all those Difficulties which seem to be matter of Scruple to them so that it is not needful for me to insist any longer on this Matter CHAP. XVIII A Reflection on some Remarks made out in this Treatise I Am perswaded that every equal Reader cannot but
but more especially to Princes because the Sovereign Command never befel any one without the Divine Providence These Essenians maintained against the Sect of the Pharisees that they might lawfully submit themselves to a Heathen Conqueror without always fostering a Spirit of Rebellion against him and without disputing or questioning his Authority under pretext that the Jewish Government had been established immediately by God. But doth this Text of St. Paul in the least prove that every Pagan Prince was immediately set upon the Throne by God The Passage quoted from the Sixth Chapter of the Wisdom of Solomon is nothing at all to their purpose because the Author of that Book addresses himself in all appearance to the Kings of Judea who as all agree deriv'd their Accession to the Throne immediately from God so that it might well be said to them Power is given you of the Lord and Sovereignty from the Highest True it is That Jesus Christ expresseth himself in words much to the same purpose John 19. speaking to Pilate the Governor of Judea Thou couldest have no power at all against me except it were given thee from above But it is visible that he speaks this only with respect to the Order of the Divine Providence which had suffered the Throne of Judea to be overthrown by the Romans so that instead of her Natural Magistrates she was now subject to Strangers The Empire of Nimrod was founded in the same manner with that of the Romans and yet I scarce think any Man will pretend that God committed the Sovereign Power to him in the same manner that he did vouchsafe it to David True it is That the Scripture gives Cyrus the Kâ—ng of Persia the Title of the Lord 's Anointed which seems to import as if God had in an immediate manner raised him to the Throne like David But this is no due consequence for the Notion of the Lord 's Anointed signifies only his particular Destination of him to be the Instrument of the Jews deliverance from their Captivity I freely own That a Divine Providence may ordinarily be observed in the Elevation of Kings and that the same may be taken notice of as intervening in a more especial manner in the raising of those Kings whom God designs to make use of for the good of his Church which is linked with the Civil Society But I do not conceive that from thence it will follow either that the acts of ordinary Providence manifesting themselves upon occasions are sufficient to make an immediate divine Institution of Princes no more than other Events wherein Providence intervenes can properly be called immediate Effects of the Deity nor that the extraordinary Acts of Divine Providence as were those that respected Cyrus ought to be alledged as an Argument in common Events The words we find in the Eighth Chapter of the Proverbs are also commonly quoted to this purpose By me Kings Reign and Princes decree Justice but it is manifest that this is said with regard to Wisdom of which he was speaking before and which displays it self in the management of Humane Affairs without intimating any immediate Act of the Deity Moreover we are carefully to observe That though the Scriptures attribute to God the Institution of Magistrates in which respect also they call them a Divine Institution and ascribe to God the Exaltation of Princes in particular yet they never express themselves but in a very general manner as when they set forth to us the part God bears in all Events Thus God is said to overturn Thrones in like manner as he is said to erect them he is said to settle Tyrants as well as the most lawful Kings All which Expressions relating to his Providence which does or permits things by the intervening ministry of Second Causes can have no influence upon the Judgments we are to make concerning the Authority of Princes with regard to their Divine institution M. de Marca makes use of some Passages out of the Fathers to confirm his Opinion But First they infer nothing but what we are ready to grant viz. That God having ordained Magistracy those who are invested therewith ought to be considered as the Ministers of God which is sufficient for a foundation of their Authority without any necessity of supposing that God immediately endows every King with the Royal Power wherewith he is invested This is the Opinion of Theophilus Bishop of Antioch ad Autol Lib. 1. where he saith That the Prince has received in some sort from God the administration of the Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which expression doth visibly respect a mediate institution but doth not at all express an immediate institution as M. de Marca conceives Secondly They distinctly lay down That Magistracy is a humane institution as St. Peter qualifies it because all Magistrates and Kings themselves are ordained and established by Men as Oecumenius explains that place 1 Pet. 1.2 St. Irenaeus says no more lib. 5. contr Haer. C. 24. He refutes the Opinion of the Gnosticks who would have Magistrates to be an institution of the Devil and he makes it appear that both the Old and New Testament confirm That Magistrates are one of the means which Providence has judged necessary to put a stop to the Current of Wickedness and Crimes which had deluged the Heathen World whom the fear of God alone was not able to keep within the bounds of Justice To which purpose he saith Cujus jussu homines nascuntur hujus jussu Reges instituuntur by whose command Men are born by his command Kings are ordained Neither doth Epiphanius advance any thing more than this Haeresi 40. contra Archontic Tertullian expresseth himself to the same purpose in his Apologet. cap. 30. Inde est Imperator unde homo antequam Imperator inde potestas illi unde Spiritus Thence is the Emperor from whence Man is before he was Emperor thence he has his power from whence he has his Breath St. Chrysostom exactly follows their footsteps as well as St. Isidore Bishop of Pelusium Lib. 2. Epist 206. Indeed how could St. Chrysostom teach any other Doctrine who in his 23. Hom. upon the Epistle to the Rom. plainly asserts That Jesus Christ never gave his Laws with design to overturn the received forms of Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and expresly denies that those words in the 13. Chap. of the Epistle to the Romans for there is no power but what is of God must be understood concerning Government in general and not of those who are invested therewith Quid dicis Omnis ergo Princeps à Deo constitutus est Istud inquit non dico Neque enim de quovis Principe sermo mihi nunc est sed de ipsa â—re Quod enim principatus sunt quod isti quidem imperant isti vero subjecti sunt quodque non simpliciter ac temere cuncta feruntur .... divina sapientiae opus esse dicit Propterea non dicit Non enim
own preservation and that of the Society whereof we are Members we may easily judge That in case the Scripture does assert it we must suppose it has done it with all possible clearness and distinction but we do not find any such thing I find but one place in the Old Testament which can be wrested to this purpose with any probability 't is the Description of the behaviour of a King set down 1 Sam. 8. 10. where the vulgar Translation interprets Mispath by the Word Right hoc est Jus Regis But I am astonished how any could be mistaken in this case For First It appears that God in that place gives us the Description of a Tyrant and not of a King for indeed we find nothing like to it in the Description he gives us of a King by Moses Deut. 17. Which appears to be so because Samuel held forth this Looking-glass to them to make them quit their demand of having a King set over them as the rest of the Nations about them Secondly It is apparent that what he saith of their crying to the Lord when oppressed by their King would have been most ridiculous supposing the King to have these Rights from God and by his Concession When Moses tells the Jews That they should cry unto the Lord when they should be oppressed by their Neighbours waging War against them because of their forsaking of the Lord Does he not plainly suppose That they would do this to obtain his Protection against the injustice of those Tyrants And can any one be supposed Fool enough to imagine that according to God's Intention it was unlawful for the Israelites to defend themselves against the Moabites Philistims and other Nations that oppressed them Thirdly It is evident that this supposed God could not in Justice punish a Tyrant or if he did it would be for making use of a Right himself had conferred upon him This reason made R. Juda to oppose R. Jose as Kimki observes upon this Text. The same is also acknowledged by the wisest of Divines Marchat in horte Pastorum Lib. 3. Tr. 4. Lect. 13. explains himself thus Hoc est jus Regis idem est ac si diceret Haec est consuetudo Regum This is the Right of a King is the same as if he had said This is the Custom of a King Jus Regum Jus non legitimum sed usurpatum Estius Samuel speaks there not of a lawful Right of Kings but of an usurped and arrogated Right and the same is the Opinion of Cornel. à Lapid and the Jansenists of Port Royal. After all that has been said it is natural to observe That forasmuch as all the several kinds of Government are no less founded on Divine Authority than the Kingly yet according to this Hypothesis none of them would be invested with this Right so fatal to Society but Kings only which certainly is the worst Argument they could have lighted on to recommend a Government which God by his own institution has constituted a true Tyranny The second place is that of St. Paul Rom. 13. where the Apostle forbids resisting of the Powers for fear we should resist the Ordinance of God. But we are to take notice that the Apostle in that place does not in the least touch this Question Whether it be lawful to resist the Poâ—ers when they endeavour to overthrow the Government First He considers the Powers in the lawful use of their Authority punishing the Evil and protecting the Good. Now it is ridiculous to suppose that the same Priviledge that appertains to him who makes a lawful use of his Authority is every whit as applicable to him who has lost his Title by the abuse of his Power Rex saith St. Isidore à recte agendo dicitur si enim piè justè misericorditer agit merito Rex appellatur si his caruerit non Rex sed Tyrannus est A King has his name from acting right and well for if he acts piously justly and mercifully he is deservedly called a King but if he want these qualifications he is no King but a Tyrant Addit 2. ad capit Carol Magn. cap. 21. Secondly This would suppose the Powers that act under Sovereigns to be every whit as irresistible as the Sovereigns themselves which is an extravagant position in the sense of all Modern Divines Besides we are to observe that Sovereigns with their Power are only the Organical chiefs of the Society the true head or chief is the Principality with its Members which are the integral parts of it This is the same that was acknowledged by Charles Moulin the Prince of French Lawyers and the great defender of the Kings of France and their Authority Upon this account it is that the People have right to prosecute the misdemeanours of the King's Attornies and Ministers and to punish them which would be strangely ridiculous if the State were not perswaded that all the Power they have is a power received from the State thô the King have the Power to elect and raise them to those Employments It is apparent therefore That these words of St. Paul only have an eye to the repugnance the Christian Jews had to submit themselves to the Dominion of Heathens This was the Opinion of the Pharisees who tempted Jesus Christ upon occasion of the Tribute which the Emperor levied in Judea Josephus shews that the Essenians opposed them in this point and St. Paul here takes the Part of the Essenians And indeed we do'nt find that the Christians did any way oppose the Decree of the Senate when they declared Nero The Enemy of all Mankind We find also that the Christians of Tertullian's time and those that followed after did very well agree with the Sentiment of Heathen Authors about the Justice of the People's or Senate's resistance against such Tyrants as is apparent from Lactantius de Montibus Persecutorum and the like may be seen in Eusebius Orosius and in St. Augustine de Civit. Dei. But I can say more than this viz. That the Scripture is so far from teaching the Doctrine of Non-resistance to an unjust Power and that violates the Laws that she represents to us contrary Examples with commendation and sufficiently intimates that we rather sin in not resisting For don't we see David taking up Arms to defend himself against Saul Don't we see him offering Achish to fight for him against Saul notwithstanding he was his Father-in Law Don't we see the Ten Tribes opposing themselves against Rehoboam upon his declaring for Tyranny and Arbitrary Government Let us take the pains heedfully to consider the carriage of the High-Priest and his Collegues when King Vzziah presumed to exercise the Functions of the Priesthood in offering Incense and it will plainly appear they did not think it unlawful to resist Sovereign Authority when it goes beyond its bounds 2 Chron. 26.17 Azariah the High-Priest follows him with fourscore Priests all valiant men drives him out of the Temple
against Religion Justice and the Government That a Prince who passeth these Bounds must be held and esteemed for a wicked Tyrant cruel and intolerable who by this means pulls down the Hatred of God and his Subjects upon himself Du Haillan Historiographer of the Kings Henry III and Henry IV. follows the same notion of Claudius de Seissel in his third Book of the state of the Affairs of France dedicated to Henry III. maintaining that the Government of France is composed of Aristocrasy and Democrasy p. 168. And indeed who can judg otherwise when he attentively considers these six things which are a part of the publick Constitution of the Kingdom of France 1st That though the Crown for a long time since has followed the form of Succession yet the form of Election is still observed at the Coronation Hunc vultis hunc jubetis esse Regem This is he whom you will and require to be your King these Words are spoken to the People before the Coronation We find the Peoples Election is mentioned and the King called elect in the form of Coronation published by Hugo Menard a Benedictin 2ly The King is there engaged by his Oath to rule according to the Laws of the Kingdom as may be seen in the Ceremonial of France 3ly He can make no Laws but in the Parliaments or States General whereof we have an Instance in the States of Orleans in the Year 1560. and is the same with what D'avila has obin his 2d Book of the Civil Wars 4ly He can make neither Peace nor War but by the Advice of the States General This is acknowledg'd by Lewis XI as we find in Philip de Commines 2 Book ch 14. 5ly He can raise no Mony but by Concession from the States General We find this point thus decided by the States of 1338 with the consent of King Philip That no Taxes could be imposed or levied on the People of France without urgent and evident Necessity did require it and then only by the grant of the States Gila Fol. 157. Philip de Commines lib. 5. c. 18. saith with respect to this point Is there any King or Lord on the Earth who has Power besides his Demesne to impose so much as a Penny upon his Subjects without the Grant and Consent of those who are to pay it except it be by Tyranny and Violence 6ly The Kings of France are liable to be deposed by the States General in case they abuse the Authority they are entrusted with This last Article viz. of the Proceedings of the French against those of their Kings who abused their Authority does evidently demonstate That the Monarchy of France is altogether limited according to the Platform Caesar gives us of the Government of the ancient Germans or Francs who are descended from them There is a passage which is ordinarily abused to prove that unjust Kings and Tyrants cannot be deposed wherein Gregory of Tours thus expresseth himself to Chilperic Lib. 5. c. 19. If any one of us who are Lords transgresseth the Bounds of Justice you have the Power to punish him but if you your self do not keep within them who is it can correct you We indeed speak to you and you hearken to us if you please and if you will not who is it shall condemn you except he who has said that he is Righteousness it self I don't believe there was ever any Author that undertook to defend the Doctrine of Non-resistance and Passive Obedience who has not made use of this Proof but give me leave to say that they have quoted this passage with as much Judgment as they alledged the 75th Canon of the 4th Council of Toledo for 1st Observe that this is the Discourse of Gregory of Tours who was accused by Chilperic for opposing himself to the Justice that Prince demanded of a Council against Pretextat Bishop of Roven whom he accused of high Treason and forasmuch as the Bishops were perswaded of his Innocence whom they saw attackt by false Witnesses this Gregory had the Courage to maintain that it was their Duty to make their Remonstrances to the King concerning this matter The King took their Design of remonstrancing him for an opposition to the Justice he had demanded whereupon Gregory of Tours made the Discourse just now mentioned So that it plainly appears that this Discourse only respects the order of Bishops who under that Relation have no other way to redress themselves with regard to Kings but only by Remonstrances but does not at all speak of the Body of the State who are invested with other Rights in Reference to a King who undertakes to pervert Justice But to make it appear that Frenchmen at that time did not believe that Kings had the Priviledg that they could not be deposed by the States Though they abused their Authority we need only to consult the History of the deposing of Childeric Father of Clovis which is set down by Gregory of Tours Lib. 2. ch 11. and approved of by him We find that they had preserved this their Right by the Deposition of another Childeric in the 8th Century and whereupon it is obvious and natural to make these Reflections 1. That the Francs had the Power of choosing and deposing their Kings 2. That the Oath they swore to their Kings was conditional and supposed their acquitting themselves of the charge and trust reposed in them and which they were obliged by Oath to make good 3. That it is false that King Childeric was deposed by the Authority of Pope Zachary as the Papists have maintained forasmuch as that proceeding was an Act of the States General who made use of their Right on this occasion This is so true that Pope Zachary himself laid it down as a Maxim in his Letter to the Francs that this was a right inherent in the People Nam si Princeps Populo cujus beneficio Regnum possidet obnoxius est si Plebs Regem constituit destituere potest For if a King saith he be obnoxious to his People by whose graunt he possesseth his Kingdom if the People constitute a King they may also depose him If we come to the Race of Charles the Great we find Lewis the Good deposed by the States assembled at Thionville The whole Proceeding whereof may be seen in Baronius du Chesne Le Cointe where we may observe 1. That it was done with consent of the Bishops 2. We see there an Indictment on divers Articles which contains as many Crimes against the State. 3. When this Deposition was recalled afterwards they did annul the Acts of the former Assembly not as if they had acted without Power but because they had proceeded on false Accusations and insufficient Grounds We find also the same Proceeding with respect of Charles the Gross and Charles the Simple Indeed it was then so notorious that the Power of the Kings of France though they took to themselves the Title of Emperors was limited the Estates being
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the
State as having lost its Liberty since their consenting to the Establishment of Tyranny and consequently having no right to attempt any thing towards the Recovery of it But I desire those who fain would obtrude this Delusion upon others as they have upon themselves to consider 1. That known Maxime of Right Possessor malae fidei non praescribit An unjust Possessor makes no Praescription Indeed if this be true That a Man needs only usurp the Goods and Rights of another to make himself the lawful Master of them Robbers Usurers and those who by abusing of the Law deprive others of their Rights will be found to be of the best and most thriving Trades in the World. If this be so the Church of Rome and the Pope by the Possession they have been in for so many Ages must carry it by Prescription to hang burn and massacre neither can any one oppose himself against their just Title 2. They ought to consider that if Kings be accounted Minors or under Age because they cannot alienate their Dominions as being only granted them for the good of the State the People are so on a much better Title and Prescription can never prejudice them I know it is a Maxime in Law Praetor cum injustè judicat jus dicit that a Judg though he judges unjustly his Judgment stands good in Law and accordingly must be obey'd from whence some might conclude That the most unjust Kings cannot be contradicted and that it is unlawful for any to oppose themselves to their Decisions But those who should make this Objection probably would not take notice of the Consequence of it It is for the Interest of the Society that the Judgments pronounced by the ordinary Judges should be valid though some of their Judgments may be unjust but no body ever believed that this Maxime authorizeth the Magistrate either Subaltern or Soveraign to tread under-feet the Laws and to make publick Profession to judg all things according to their fancy 2ly 'T is a constant truth That Kings could never justly touch the Peoples Rights they being commissionated neither by God nor Man to judg what be the Rights of the People and having no more right to deprive them thereof than a party at Law has right to deprive his party of the Right that justly belongs to him CHAP. XVII An Answer to the last Objection AFter all that hath been said I cannot suspect that any should make an Objection that has so little Appearance of any Probability as is that which is the 2d of those that remain to be examined by me some suppose their conceit to be of some weight who urge the Acts of Parliament under King Charles II as destructive of this form of the English Government The Words are these That it is not lawful on any Pretence whatsoever to take up Arms against the King c. Indeed it cannot be denied but that these Words seem to suppose that those who swear to them cannot believe it is lawful to take up Arms against the Kings of England howsoever they may behave themselves nor by any opposition to hinder the overturning of the Laws and Government We may well acknowledg that Power to be unbounded which it is not lawful to oppose by force of Arms now these Acts of Parliament declare that it is not lawful to resist the King wherefore the King of England must be supposed an unlimited and absolute Monarch and by Consequence we must conclude that the Government of England is wholly changed and destroyed so that whatsoever we have alledged in the foregoing Discourse can only be made use of as a History of what is past but not as a Rule or Precedent for what is to come This conceit is so unreasonable that it seems scarce worth the pains to stop at it however I shall endeavour in few Words to satisfy those who seem unwarily to be taken in the Snare which the Malice of a Popish Court had laid for them 1st They must know that the Fundamental Laws of any State are of the Nature of Contracts Pactions and Capitulations which according to the common opinion of Lawyers are irrevocable Buxtorf in Bull. aurea cap. 1. § 7. whence it follows That all Oaths that are taken against Capitulations of this nature may be Sins to those who take them but cannot oblige them as being unlawful Oaths 2ly They cannot suppose that the Parliaments of Charles II did ever think of repealing these Fundamental Laws without accusing the Members that composed them of having been prevaricators and betrayers of the Interest of their Country by changing the limited Monarchy into a true Tyranny 3ly They cannot do this Injury to these illustrious Assemblies without casting the same Blemish upon the Bishops in the House of Lords during those Sessions of Parliament and making them altogether odious either for their Stupidity or for their Malice for their Stupidity if imprudently they gave their consent to Laws made on purpose to change the Kingly Government into Tyranny or for their Malice if they wilfully betrayed the Interest of the State though they knew well enough what must be the end and aim of these Regulations I desire these Gentlemen to make some Reflection on this truth Is it possible they should have no Consideration at all either for the Reputation or Conscience of their Ancestors They have shewed themselves so jealous of a change in the form of the Government by making of a successive State an Elective one and yet they suppose that the Parliament and the Bishops that sat in them have in sport changed the form of the Government by making it of a limited Royalty to become an absolute and unbounded Monarchy 4ly They must needs accuse these Parliaments of a strange Folly for these Gentlemen suppose that the Disorders which then ruled in the State obliged the Parliament to restore Charles II. They suppose that the Anarchy and various Sects which had the upper hand before his recall making wise Men not without cause to apprehend the Ruine of the Protestant Religion as well as the Overthrow of the State they thought themselves obliged to employ all their strength for restoring of Charles II. as supposing him a good Protestant and a King whom his Adversities had made wise in hopes of being governed by him according to the ancient Laws of the Kingdom And yet after this they will perswade us That the Parliament thought it fit and reasonable to destroy the Nature of the Royalty in England by making it Mistress of the Laws and authorizing it to destroy the Protestant Religion whenever the Popish Faction should think fit to have it done 5ly They must accuse these Parliaments of the commission of a horrid piece of Imprudence in attempting upon the Liberty of the People For if this were indeed their Design were they not obliged at the same time to repeal all the other Laws which restrain the Power of the Kings of England For we know that
of Henry I. and partly were gathered out of the Old Laws of King Edward The Historian speaketh of these very Articles here Printed 5. 'T is observable That in these Articles there is no care taken for the Liberties of the Church The reason of which I conceive to be this The Church-men mostly then held with the King. And the Hand of the King was most heavy upon the Laity who framed these Articles without the Clergy 6. These Articles provide nothing concerning the Summons and holding of the Common Council of the Realm The reason whereof probably was this The Barons of that time had introduced a Practice of themselves to appoint the Time and Place of the Meeting of the Common Council of the Nation At the granting of these very Articles King John sent to the Barons Vt diem locum providerent congruum ad haec omnia prosequenda That they the Barons would appoint Time and Place for the concluding that matter In the time of Henry III. in whose Charter the Article de communi concilio habendo was omitted and in whose time the Barons begun again to War we find that the Lords came unto the King and said He must ordain and see for the Welfare of the Realm and then set the King a Day to meet at Oxenford and there to hold a Parliament So the English Chronicle However this grand Affair as also that of the Church were provided for in the Magna Charta of King John. Whereby it further appears That these Articles were but the Rudiments of that Charter after further enlarged upon further deliberation I COME now in the second place to say a few things concerning the Perfect and Compleat Magna Charta of King John here printed in French. 1. It was the Custom of old Times to make three several Copies of Publick Acts and Charters Of the Magna Charta we have one in Latin in Matthew Paris This in French or old Norman Language was kept in the Records of France and thence Published some years past by Luke Dachery in his Spicilegium That in English was sent into all Counties but as yet no Copy in this Language appeareth Thus also the Laws of Canute and the Provisions of Oxford to mention no more made in the time of Hen. III. were Publisht in three Languages 2. The very same Charter Publisht in Latin by Matthew Paris is also extant in the History of Rad. Niger almost word for word and also in two several Manuscripts in the Cottonian Library where also about twenty years past the very Original was to be seen 3. The Magna Charta of King John is not extant in any Record in the Tower or elsewhere as several affirm nor the Magna Charta of H. III. but only by Inspeximus in the time of Edw. I. A thing much to be wondered at Rudburne writeth of the Charters of Hen. I. Sublatae sunt omnes variis fallaciis exceptis tribus All but three were embezel'd 4. The Magna Charta of King John and that of Hen. III. are said to be the very same where as they do exceedingly differ as Mr. Selden in his Epinomis hath partly observed and may further appear to any that will compare them Matthew Paris pag. 323. The Tenor of these Charters is fully set down above where our History treateth of King John So as the Charters of King John and Hen. III. are not found to differ in any thing These words are not the words of Matthew Paris but of Roger VVendover whom Matthew Paris often transcribeth very hastily in whose History the Charter entred as King John's is exactly the same with that Charter of Henry the Third 5. As to that remarkable Article Et ad habendum commune concilium Regni And to the holding the Commune Council of the Realm c. I shall briefly say 1. That it hath been left out of all the Charters after King John's time but is found in several Copys very Authentick and particularly in the French Copy now here printed 2. That this Article doth not as some have written give the Original to our Parliaments for such Parliaments or communia concilia were held before this time King Richard the First after his return from the Holy VVar summon'd a Common Council or Parliament at London of the Clergy and Laity where he demanded Council about his making War upon the King of France Earl Roger answered for the whole Parliament The Earls Barons and Knights will aid you O King with their Swords the Archbishops Bishops Citizens Burgesses and Ecclesiastick Persons will aid you with Money Abbates Priors and such others will aid you with their Prayers So the English Chron. And to omit others an Instance of such a Parliament is found in the Annales of Burton pag. 263. compared with page 265. King John call'd to Northampton all the Earls and Barons of England it followeth Pandulfus spake at the same time to the Earls Barons and Knights O that you c. The Clergy indeed are not here mentioned but were certainly present because the occasion of that Council was to restore Peace to the Church and Kingdom as Matthew Paris or as the Annalist of Waverly wordeth it betwixt the King and the Archbishop 3. I conceive the chief end of adding this Article was to prevent the taking of Aids commonly called Talliage or Escuage by surprize or by the consent only of a few which King John had lately done For the summoning of the Commune concilium here is plainly limited to the Sessing of Aids and Escuage But the Mirror giveth another account of the meeting of Parliaments worthy of Consideration page 225. where the Author refers us to higher times There is yet one Article more in this Charter of King John which deserveth our regards the rather because it being lately alledged in the Pastoral Letter hath much scandalized some with its suprising Novelty The words are Barones cum communia totius terrae gravabunt nos The Barons with the Community of the Land shall aggrieve or distress us c. But why should this sound uncouth to any who have with Reflection perused the Histories of this or the Neighbouring Kingdoms wherein the same Practice is frequently found Andrew King of Hungary allowed the same Liberty to his People as may be seen at large in the Decrees of the Kings of Hungary in the end of Bonfinius Like Examples occur in the French Annales and in the Annales of Waverly in the time of Hen. the Third pag. 217. If any will yet suspect that Matthew Paris in this Point hath not writ fairly or that the Articles produced by the Bishop of Salisbury are not to be relied on and some such dissatisfied People there are then let them if they can be believed desirous of satisfaction repair to the Red Book of Exchequer where fol. 234. they may find the very same VVords and Liberty granted as before Which Record cannot well be suspected of being corrupted because it