had the force of Laws for Quintus Hortensius when the Commons of Rome had withdrawn themselves into Janiculum a Town beyond Tyber made a Law that those things which the Common People had commanded all the Quirites the Roman Citizens should be obliged by and observe which Law L. Valerius and M. Horatius had granted Centuriatis Comitiis i. e. to the general Assembly of the People of Rome assembled to treat of common affairs There was great difference between Plebiscita Orders made by the common People and the Laws for the Plebiscita the Tribunes demanded those things which did belong to the People but the Laws either Consul or Praetor or other Magistrate advising rogabantur were demanded whether they should be ratified or not They made also a difference between Populus the Citizens of Rome and Plebs the common Rout for that among the People were Patricians Senators and the Nobility but among the Rout there were no Patricians Notwithstanding whatever the People commanded was not always to be ratified because whatever was not just the People might not command The Counsels of the Senate though they were not brought yet if the Tribunes approved thereof and would have them ratified they obtained the force of Laws The Edicts and Interdicts of Praetors also sometimes and under some qualifications had the force of Laws which were intituled Jus Honorarium which were taken away by the Lex Cornelia Also the Responses of Wise-men went sometimes for currant Likewise the ablest and wisest Lawyers were esteemed and used as the best Interpreters and Judges of the Laws which some say was granted to them by Augustus others as confidently affirm they had it not from Augustus and other Princes but of antient custom and right long before But Caligula that Monster and Enemy of Mankind caused all the Decrees of the Lawyers to be forbidden and no body but himself to be the Interpreter and Judge of them At least the Decrees and Constitutions of Princes went for currant Law For when Caesar and the following Emperors had obtained the chief Empire and they only gave Laws and all the Right and Power of Legislation was rent from the People Lege Hortensia and was given to the Caesars so that their Wills and their Decrees without the counsel or consent of the People as formerly had the force of Laws contrary to the Laws of God Nature and Reason Caracalla being fully possessed of this exorbitant power used it accordingly who first killed his own Brother Geta who had equal share with him in the Government by the appointment of Severus their Father and then caused the great Lawyer Papinianus to be put to death because he would not defend that barbarous Act of his before the Senate alledging for his justification that it was easier to commit Parricide than defend it but afterwards this Caracalla was contented more Majorum to have him Canonized Divus modo non sit vivus to deify him being dead in another world rather than to have him a living Co-partner with him in the Empire On the contrary Trajan that most excellent Emperor being possessed of the same power and having published some private and special Laws or Indults for great merits and understanding that some relying thereon made ill use thereof by drawing them into Example and fearing lest contrary to the Laws and Customs of the Antients they should be drawn by application unto wrong Causes and being brought into Judgment and Courts of Justice or Pleadings as Precedents they should pass for Laws he refused afterwards to answer Plaintiffs or Defendants by any writing or Libel of Record lest thereby pernicious examples and as it were Seminaries of ill might spring from thence Antiochus had so great veneration for the Laws that by his publick Edicts he did declare that if he had at any time decreed contrary to Law and Right it should not be obeyed but should be freely opposed by whose example Agesilaus would be obliged by no Promises that he should make but on condition that they were just At what time the Common People did choose their Magistrates whom they always accounted as sacred in the sacred Mount it was provided by a Law that it should not be lawful for any Patrician to apprehend or disturb any of them and not without cause for when against the Power and Insolencies of the Patricians the common People did assemble to choose Tribunes as Champions and Defenders of their Laws and Liberties to hear complaints against the Patricians it would be very unjust that in that in which the People did choose their Defenders to the height and pitch of Honour they should admit those who were most adverse and shagreen to their Liberties and Franchises They esteemed their Tribunes as the Ephori among the Lacedaemonians advanced and delegated to that office to curb the Insolencies of the Spartan Kings lest they should abuse their power to the prejudice of the People Theopompus a Spartan King instated Five of his Friends to be Ephori as his Auxiliary Ministers in his Government at home when he went abroad in Person with his Armies though it was provided by the Laws of Sparta that their Kings should not go out in Person with their Armies which Ephori in process of time came to have so great a power over their Kings that they directed them what they were to do and also were Censors of all they did insomuch that they called Archidamus to account imprisoned him laid a great mulct upon him and at last took his life away The like they did to Pausanias and Agis Lacedaemonian Kings and were so terrible that they erected Timoris Sacellum a Chappel of Terror which Ephori together with their Kings did take Oaths every Month that they would observe the Laws of Lycurgus and preserve the Kingdom in peace In tract of time they grew so insolent that Cleomenes broke their Empire and restored the Kingly Power It was not lawful for any Patrician to accept of being a Plebeian Magistrate and Volero Tribune of the People ordained by a Law proclaimed with the consent of the Plebeians that the Plebeian Magistrate should be made without the Patricians and only the Plebeians admitted to the Tribunitian Councils And though formerly to be Dictator Consul Praetor or Censor none but Patricians were to be admitted yet afterwards the Patrician Magistrates were to share and communicate with the Plebeians So Sextius Primus of a Plebeian was made a Consul which then was ratified Lege Licinia which C. Licinius and L. Sextius Tribunes of the People proclaimed that the Consulship should be common with the Plebeians Q. also P. Philo and Cl. Licinius Stolo Plebeians the one did bear the office of Pretorship the other the Master of the Horse with the Patricians Moreover the Dictatorship in which was placed the greatest glory and Censorship we find to be in common with the Plebeians For both M. Rutilius the first Dictator and Censor then Q. Pompeius and Q. Metellus
that in the beginning all Power did flow from the People and still doth which Tully excellently demonstrates De lege Agraria Cum omnes potestates Imperia curationes ab úniverso Populo proficisci convenit tum eas profecto maxime quae constituuntur ad populi fructum aliquem commodum in quo universi delegant quem populo maxime consulturum unusquisque ' studio suffragio suo viam sibi ad beneficium impetrandum munire possit Seeing all Powers Commands Curations i. e. potestas seu munus administrandi bona do proceed and flow from the People then those more especially which are constituted and do respect the good and benefit of the People in which the universality do chuse them whom they judge will most especially study and procure their good and every one by their study and suffrage may have easie access to obtain Justice and Favours And all Lawyers do agree and hold That all Laws repugnant to the Laws of God of Nature or of Reason are not to be accounted as Laws And whereas the Power of judging was Originally in the People and the English by no Lex Regia have at any time transferred it out of themselves no King of England hath been wont or hath Power to judge any Man unless by the known and approved Laws Fleta lib. 1. c. 17. What Power Kings have are given to them by the People that they may know by the Authority to them committed that they may do nothing contrary to the Law and keep our Laws but not impose their own Laws on us and the Kings Power is really and truly in the Courts of Law wherein the People by their Juries have their share also And their chief Power is in their Senates and Parliaments who have a Right and Authority over all Courts and Powers in all which Courts Kings may both sue and be sued and the reciprocal Causes to be indifferently tried according to established Laws If at any time Kings act any thing contrary to Laws they act then as private Men or as Tyrants and not by any Authority transferred on them by God or Man so to do Hence Bract. l. 1. c. 8. Non est Rex ubi dominatur voluntas non Lex c. 1. 3. c. 9. Rex est dum bene regit tyrannus dum populum sibi creditum violenta opprimit dominatione c. ibid. Exercere debet Rex potestatem Juris ut vicarius minister Dei potestas autem injuriae Diaboli est non Dei. Cum declinat ad injuriam Rex Diaboli minister est As nothing contrary to the Laws of God and Reason can be accounted a Law so neither can a Tyrant be a King nor a Minister of the Devil be a Minister of God seeing therefore Law is but the product of right Reason and Obedience is due to Kings as the Ministers of God so by the same Reason and Law Tyrants and Ministers of the Devil may be censured and resisted Either the People to be governed have a Right and Power to chuse their own Governor or they have not If they have not then Kings chosen by them are not Kings but Usurpers and Oppressors If they have Power to chuse then they have Power to oblige him to what Conditions they please and to keep them and if they fail of performing then they are free of the Covenant as it was between Rahab and the Spies FINIS ERRATA PAge 6. line 18. dele it ibid. l. 50. for Iliad r. Myriad p. 9. l. 11. f. doth only r. not only ib. l. 38. f. the way r. the right way p. 11. l. 15. f. our r. your ib. f. Black-guard r. Peasants p. 13. l. 3. dele and. p. 14. l. 28. f. this r. those p. 17. l. 23. f. Zalencus r. Zaleucus p. 16. l. 43. r. St. Edward p. 22. l. 20. r elegerit alibi ib. l. 58. r. Martyrs p. 24. l. pen. f. the r. thy p. 25. l. pen. dele to p. 28. l. 25. dele in the Posterity of ibid. l. 31. f. did r. should p. 30. l. 22. f. taking r. taken ibid. l. 58. dele hundred p. 31. l. 17. f. Timens r Fabius ib. l. 32. r. Fabius p. 33. l. 24. f. or r. and. ib. l. 46. f. never r. ever p. 42. l. 12 r. Commonwealth p. 43. l. 38. dele Obj. p. 44. l. 46. f. necesset r recesset p. 46. l. 10. r. elegerit p. 47. l. 16. r. perfectiora p. 48. l. 35. r. differemus cui quam p. 51. l 43. dele we p. 56. l. 41. f. magis r. majes ib. l. 46. r. saies p. 57. l. 57. f him r. them ib. l. 33. r. proscribed p. 60. l. 38. dele the second no. p. 61. l. pen. f. beareth r. bear p. 62. l. 47. after yet r. God. p. 63. l. 19. r. prepossessed p. 69. l. 27. f. ye r. yea p. 75. l. 18. f. his r. their p. 76. l. 5. in the Contents f. returns r. return ib. 5. in the Chapter f. was r. were ibid. l. 33. f. lawful r. unlawful p. 78. l. 19. f. Proplancio r. pro Plancio p. 82. l. 7. r. is seated p. 87. l. 23. f. Florentio Dianysio and Coss r. Florentio Dianysio Coss ibid. l. 35. f. Valerius r. Valeria In 4â— printed 158â— Arlstotle Pindarus Tuâ—â—y Plato alias Lex Regia v. Dr. Sherrock c. 4. n. 9. p. 282 283. Lex P. Vallerii 2. Martii Fab. Maximi Scyllae C. Gracchi plebiscitum Lex Annaria c. Vid. A. A. A. lib. 4. cap. 6. p. 181.
12. and in his due time will relieve the oppressed and afflicted If we make diligent and exact Scrutiny into other Relations of human and civil dependencies our Judgments may be assisted for the more clear apprehending of truths of Government wherein we shall find some obligations between them so strictly enjoyned that they cannot be violated without the brand of Impiety as between Parents and Children Husband and Wife Master and Servant Col. 3. 18 19. 20 21 22. Job 31. 13. between whom although by the Laws of God and Man there be many reciprocal Duties yet are they nothing if weighed in a just Ballance in comparison to what Kings themselves owe to God and the Governed who are also the Church of Christ for what ever injury is done to a Christian Commonwealth is at the same time done against the Church of God whereof Christ is Head and King and those whom we call Kings thereof are but his Substitutes and Vicegerents and ought to govern as he hath commanded and as he will do when he shall come again in Glory to reign on Earth Besides they are constituted and ordained by the Governed under Conditions Covenants and Agreement not that themselves may live at ease only and command and rule at Pleasure but as Gods Vicegerents and as Trustees and Administrators of the Governed to rule and govern according to his and their own Laws quas vulgus eligerit for what a madness should we esteem it in human Affairs if Deputies Viceroyes and Lieutenants of Earthly Kings should for their own private ends and interest prefer them before the Honour Glory and Service of their Kings They who so administer Affairs take not right measures of their Masters Glory and the Peoples good but comply with the flatteries of their own Lusts their particular Advantages sinful Ends and interests or hatred furiously transporting them to the publick ruin privati Commodi vel odii pertinacia in publicum exitium stimulante Tacit. lib. 1. hist Private Interest and concerns saith Livy always have and always will hinder publick good Councils privatae res semper officere officientque publicis consiliis Livy lib 22. The Heathen taught only by the light of Nature could discern the truth of these things and have left Monuments thereof on their Tombs and Coins They doubted not saith Valerius that Empires were made to serve holy Purposes and that all things even such where the Lustre of Supreme Majesty was to appear were to be placed after Religion Kings Princes and Governours being partakers of the same human Nature in common with their Subjects are equally obliged by the same Laws of God and Nature to keep Faith and Covenant the common Law of Nature with them and therefore the Obligation of keeping Faith and Covenant is equally obligatory both to Prince and People As by the Law of Nature so by the Law of God Covenants are inviolably to be kept and not broken by either Prince or People And as Covenants between God and the King and between God and the People so between Kings and the People which as they are most solemnly made so they are as sacredly to be kâ—pt and that under great Menaces Pains and Penalties God hath given his â—ord that â—e will never break his Covenant Jud. 2. 1. and Psal 89. 34. My Covenant I will not break nor alter the thing that is gone out of my Mouth and requires and expects the like punctual performance from his Vicegerents and bitterly curses those that do infringe and break plighted Faith and Agreements Cursed be the Man that obeyeth not the words of this Covenant Jâ—r 11. 31. and God for the breach of Covenant gave the Princes of Judah and the Princes of Jerusalem the Eunuchs and the Priests and all the People of the land into the hands of the Enemies and into the hands of them that sought their lives and their Bodies for meat unto the Fowls of Heaven and to the Beasts of the Earth Jer. 34. 19 20. Besides God is no respecter of Persons Kings and Peasants are all alike to him all the Works of his own Hands all made of the same Mould all redeemed with the same previous Blood all his own Images and Temples and shall stand in an equal distance before his Tribunal who will judge all breakers of Covenant whether Kings or Peasants according to his own Righteous Judgment Neither Kings nor People have any Priviledge or Prerogative to break Covenant and they that do be they Kings or be they People are justly esteemed Rebels to the Laws and Covenants and the injured Persons have just Cause to right and defend themselves if oppressed by such Violation Kings accounting themselves as Gods Ministers and Vicegerents and Fathers of their Countries ought so to govern in good earnest and they being placed on their Thrones as such by the People ought to keep Laws and Covenants punctually with them and which they cannot break or sham without being perjured and becoming guilty of Tyranny and Oppression No Kings nor Princes can be so indulgent nor so really fond and ambitious of their Peoples Love and Welfare as God is of the Love of Mankind like as a Father pittieth his Children so the Lord pittieth them that fear him Psal 103. 13. testified by his making them a little lower than the Angels and crowning them with Glory and Honour and giving them Dominion over the works of his Hands and by putting all things under their Feet all Sheep and Oxen c. Psal 8. And indeed the whole Creation for his own Glory and the good and Solace of Mankind Did he not command Moses to carry his people in his Bosom as a Nursing Father beareth his sucking Child Num. 11. 12. Can a Woman forget her sucking Child that â—he should not have compassion on the Son of her Womb yea they may forget yet will not I forget them Isa 49. 15. If God hear but Ephraim bemoaning himself how passionately doth he expostulate with himself Is Ephraim my dear Son is he a pleasant Child For since I spake against him I do earnestly remember him still therefore my Bowels are troubled for him I will surely have mercy upon him saith the Lord Jer. 31. 20. Doth God who is Lord alone of all the Kingdoms of the Earth make known his excessive fondness of his People by such Bowels of Compassion How then dare his Vicegerents requite evil for good contrary to Gods own Commands and Practice and not seek the Good and Welfare of their People without having Hearts harder than the nether Millstone Again How shall I give thee up O Ephraim How shall I deliver thee O Israel my Heart is turned within me my Repentings are kindled together Hos 11. 9. Tho you will neither turn nor repent yet how shall I give thee up So desirous is he of his Peoples Repentance that he beseecheth them till he is weary of repenting Jer. 15. 6. even passionately with Oaths doth he expostulate with
is so natural an obligation that it cannot be dispensed with And for Governors to procure the good of Commonweals is but to do their duty he that is above all should be best of all for Example prevails more than Law and there can be no reason for sin violence or oppression Princes Councils Love and Hate Must do homage to the Law of State The Peoples Safety hath no Mate So King James of happy Memory in his Speech to the Parliament 1603. When I have done all that I can for you I do nothing but that which I am bound to do and am accountable to God upon the contrary For I do acknowledge that the special and greatest point of difference that is between a Rightful King and an Usurping Tyrant is in this That whereas the proud and ambitious Tyrant doth think his Kingdom and People are only ordained for satisfaction of his Desires and unreasonable Appetites the righteous and just King doth by the contrary acknowledge himself to be ordained for the procuring of the Wealth and Prosperity of his People and that his greatest and principle Worldly Felicity must consist in their Prosperity If you be rich I cannot be poor if you be happy I cannot but be fortunate and I protest that your Welfare shall ever be my greatest care and contentment and that I am a Servant it is most true that as I am Head and Governor of all the People in my Dominions who are my natural Vassals and Subjects considering them in numbers and distinct ranks so if we will take the whole People as one Body and Mass then as the Head is ordained for the Body and not the Body for the Head so must a righteous King know himself to be ordained for his People and not his People for him For though a King and People be relata yet there can be no King if he want People and Subjects but there be many People in the World that lack a Head wherefore I will never be ashamed to confess it my principal honour to be the great Servant of the Commonwealth and ever think the Prosperity thereof to be my greatest Felicity 494 495. The reason is demonstrable viz. God not the King made the People and those all equally of one and the self-same Mould but the People make Kings Nature was Father to the People but the People make some of themselves Kings and are the rightful Patrons of all their Power Honours Priviledges and Prerogatives and therefore as God ordained the Sabbath for man and not man for the Sabbath Mark 2. 27 so 〈◊〉 ordained Kings and all other Governors and Governments for 〈◊〉 and not Men for Kings The prospect and foresight of the wise That to be governed by one Mans Will might become the cause of all Mens misery prevailed with them 〈…〉 and 〈…〉 Laws 〈◊〉 all might see their Duties and 〈…〉 There are that 〈◊〉 with great 〈…〉 truth that Kings receive their 〈…〉 according to Prov. 8. 15. and not from the 〈…〉 are set and that they are accountable to nonâ— bu◠〈…〉 on the just Right of all Polâ—â—â—â—k Power 〈…〉 and of Nature and of Reason is originally in the 〈…〉 use thereof from them may be transferred and deligated unto whom 〈…〉 devesting 〈…〉 their Administrator◠〈…〉 them who deligated it and to 〈…〉 countable If such Assâ—â—tor◠〈…〉 old when God by 〈…〉 the People had 〈…〉 Prophets for Rules 〈…〉 much more might have 〈…〉 yet even in those days the 〈…〉 far complied with common consent 〈…〉 change of that Government his own Wisdom 〈…〉 him and his Government 〈…〉 his peculiar People only because they 〈…〉 King over us maugre all that Samuel could 〈…〉 as Solomon was dead all Israel come 〈…〉 King who refusing to be a Servant to the◠〈…〉 for ever threatning that his little finger should be 〈…〉 would whip them with Scorpions c. they soon 〈…〉 have we in David neither have we inheritance in the 〈…〉 and see to thine house David 1 King 12. and then chose 〈…〉 Rehoboam the Son of Solomon But such choice being now quite out of doors and 〈…〉 the least pretence of Title from such Nomination and therefore 〈…〉 can only be meant the institution of the Office and not the designation 〈…〉 and cannot possibly be understood any other ways 〈…〉 instituted hath together with other Governmentâ— th◠〈…〉 And it standeth sure that all Royal Power 〈…〉 in the People as in the first Subject which they may confer on this or that Man with â—â—at â—â—mitations they please and on condition that if conditions be not performed they 〈…〉 Power they intrusted him withal And therefore no King can have 〈…〉 so just Powers as from the suffrages of the People all other Governments 〈…〉 Tyrannies and continued Injuries of which the People may ease themselves when they have just reason and a neat opportunity so to do because their just and natural Right is wrongfully invaded for that naturally no sort of Men have full and lawful Power to command whole politick multitudes of Men and therefore utterly without the Peoples consent they ought not to be at any Man's commandment living This is plain and natural reason and ought to have the stamp of a publick Law. Laws positive are mutable natural not so and therefore these Laws ought to stand unrepealed because they always bind The Kings of Israel and Judâ—â— were not so immediately and absolutely from God as that the People were 〈…〉 excluded from their Right and Power of Electing and Approving and 〈…〉 of them that had been to deprive them of that Power that God and the 〈…〉 Nature had given them to Covenant and Agree with them before they would admit of them that had been to wrong the People and to bind them up from the use of their reason by Covenanting for their own Happiness and against Tyranny in ease they should break Laws and Covenants solemnly made with them by Oath which cannot be broke without Perjury By me Kings reign was only an Index and Declaration of God's Will and Pleasure which doth not take away or destroy the Peoples Right or Liberty Saul was not King so absolutely and so immediately from God that it excluded all Election of the People but was afterwards chosen by Lot by all the People at Mizpeh And all the People shouted and said God save the King 1 Sam. 10. 17 24. and afterwards Behold the King whom ye have chosen Chap. 12. 23. Did not all the Elders of Israel Capitulate and Covenant with David before the Lord in Hebron and then and not till then anointed him King over Israel 1 Chron. 11 13. All the Men of War came with a perfect Heart to Hebron to make David King over all Israel and all the rest also of Israel were of one Heart to make David King chap. 12. 38. Did not all the People of Judah take Azariah who was Sixteen years old and made him King instead of his Father Amaziah 2
King. 14. 21. Did not Jeroboam and all Israel come to Sechem to make Rehoboam King c. as before 2 King. 12. 16. Have not all Nations the same undeniable Right to Capitulate and set Kings over them and bind them by their own Laws and Tearms and by Solemn Oaths It is clear that the Jews in their Sanhedrim Melec and other parts of their Talmud with the Writers thereon that it was the Law and Custom of their Kingdom that their Kings of the House of David especially were to be judged as well as to judge Have not all our English Kings as well as their Subjects had English bounds by Laws quas vulgus eligerit Have not our Kings confessed and owned that we are not bound to serve them but according to our Laws And our Allegiance is not Absolute but bounded and limited by Law. Nay the old Oaths in Saxon and first in Norman times did respect the Kingdom and its common good and profit to defend the Kingdom with the King. Sicut Conjurati fratres ad defendendum regnum contra Alienigenas contra injurias una oum Domino Rege c. That which is said before concerning the Right of Government is as justly and as undeniably applicable to the Right of Legislation whereby to Govern which Power God uncontrolably hath over all the World. And by the Law of Nature whereunto the whole Race of Mankind is subject the lawful Power of making Laws to command and govern whole Nations Kingdoms and Politick Societies of Men belongeth so properly unto the same intire Societies that for any Person how Mighty and of what Degree or Kind soever on Earth to exercise the same of himself and not either by express Commission immediately and personally received from God unto which there can be no possibility of pretence but by Impudence or else by authority derived by consent and suffrages of those Nations and Kingdoms on whom they violently impose Laws it is no better than meer Tyranny Just Laws therefore they are not which publick approbation by their own consent hath not made so For what Princes or Potentates soever Govern they never so wisely and with never so good intent and design with never so good success yet nevertheless they transgress both divine and human Laws if they have not the publick Sanction and Stamp of the governed for their right of Governing them The Will Pleasure and Commands of God are the only perpetual and immutable Rule of Justice to which all Men without exceptions ought to submit and obey absolutely The Commands of Princes though his Vice-gerents are to be obeyed only on conditions viz. so that they command nothing that is sinful or contrary to the Law of God or Nature or municipal Laws of the Country Princes that require such Obedience to their Commands do as much as in them lieth make their Thrones equal to the Throne of the Almighty who never hath given nor never will his glory to another Isaiah 48. 1. The command of Pharaoh to slay the Hebrew children Exod. 1. 21. was unjust and God blessed the Midwives that refused to obey it So God blessed Daniel and the rest that refused to fall down and worship Nebuchadnezar's prodigious Idol So Abdias refused to slay the Prophets contrary to the command of Jezabel but on the contrary hid them from her fury and nourished them 1 King. 18. 13. So Matathias opposed and resisted Antiochus commanding Sacrifices to be offered to Idols So Christ and after him the Apostles preached the Gospel publickly and privately contrary to all commands of Cesars chief Priests and Scribes alledging for their Justification Acts 5. 22. Whose examples the holy Marters followed The Authority of all Magistrates be it never so great is bounded and circumscribed by God himself by Piety and Charity and if they trangress those Rules the 5. of Acts 22. takes place lest we be found in the company of those mentioned Mich. 6. 16. whom God cursed for that they obeyed the wicked commands of Kings CHAP. IV. Examination of some different Opinions Kings though nominated by God yet had their Confirmation by the People on their own tearms and have a just right to chuse or reject to limit and bound them HAving thus demonstrated the absolute necessity and profitableness of 〈◊〉 the final end and efficient cause and just right thereof where and in whom vested wherein I have not used cunningly devised Sophismes or 〈…〉 to the custom of some Priests and Jesuits but plain demonstration of Truth according to the Law of God of Nature and of Reason neither 〈◊〉 I singular in thâ—se Positions and Fundamental Basis and right of all just Dominion but have followed herein Judicious Hooker that English Oracle and Padre Paolo that Oracle of 〈◊〉 and divers others And whoever will peruse the Collection of the Authors 〈◊〉 Goldastus or the Avant-Proposdes Lettres Embassade de Missire Philipe Canays 〈◊〉 de Fresne wherein are the Names and Titles of 145 Tracts wherein you 〈…〉 divers good Authors of the judgment back'd with sound Reasons for such 〈…〉 But because nothing can be so advisedly so carefully so punctually 〈◊〉 as to escape the contradictions of subtle prevaricating and perverse wits I shall 〈◊〉 the liberty to examine the different Opinions of some others and those not 〈…〉 but shall not clog this Paper with many Names it 's enough to name 〈…〉 viz. It 's certain that Kings have their Power from none but God boldly said 〈…〉 be justified by any Law of God of Nature or of Reason it is pure 〈…〉 Doctrine and diametrically opposite to those who affirm That all 〈…〉 Laws of God and Nature is immediately in the Multitudes as in its 〈…〉 confer the same on one or more by the same Laws of God and Nature The 〈…〉 give is Obj. That by Natures Law no Man can give that which he hath 〈…〉 hath just power of his own Life and Death or Members therefore much less of 〈…〉 therefore the People cannot establish Government because they have 〈…〉 or Death no not of their own and therefore cannot confer any such power 〈…〉 who gives Life hath that Power and they to whom he gives it Sol. No more havâ— Kings without some lawful Power conferred on them so to do which they cannot 〈◊〉 have immediately from God and therefore must have it aliunde viz. from and by consent of others Hence that Command Thou shalt not kill Exod. 20. 13. whâ—sâ— sheds 〈…〉 by Man shall his blood be shed At the hand of every beast will I require it 〈…〉 hand of man at the hand of every man's brother will I require the life of man Gâ—n 9. 〈…〉 Thou shalt not kill is the general Precept of God and Nature and obligeth 〈…〉 private Men. And whoso shedeth mans blood by man shall his blood be shed by 〈…〉 is by the Magistrates whose Power is here established for sheding the Blood 〈…〉 Murderers as the Chaldee expresseth it saying With
who violates them and not by him who was obliged only on Conditions and thereby becomes free of the Obligations not by his own Acts but by him who first broke the Conditions Therefore Supreme Magistrates becoming Tyrants by their own Perjury and breaking their Covenants do free their Subjects from their Oaths and Allegiance and not the People when they deservedly make use of their Power to curb thâ—m and to right themselves That Kings should not be obliged by Law is contrary to all the received Opinions and Sentences taken from the right of Nature by the most profound and judicious Lawyers Eos qui leges ferunt legibus quoquâ—â—btemâ—â—rare quod quisque juris in alium statuerit ipse ut codem jure utatur nihil â—â—perio magis conducere quam ex legibus vivatur dignam denique vocem esse Principem legâ—â—us â—â—se â—ubdâ—tum prâ—fitert Itaque quod alibi à Juris consultis dici videtur Principem esse supra leges aut Principem à Legibus sâ—lutum non nisi de legibus civilibus deque particulari privatorum jure est intelligendum verbi gratia de testamentis de detractione Trebellianae aut Falcidianae non autem de Jure publicâ— ad statum ut dici solet pertinentâ— mulcoque minus de jure naturali aut divino cui quum onâ—â—es singuli homines subjiciantur quatenus homines nati sunt omnino efficitur aut Reges homines non esse aut illos hoc jure teneri CHAP. VI. Principles and Tenets of some Divines and others destructives to all human Societies Kings made and chosen by the People and to them accountable His greatest Authority is in his Courts and not in his Personal Commands The People chuse their Kings and oblige them by Laws which they swear to keep MAchiavel I know and so doth the Ecclesiastical Polititian instruct Princes how they may treat Subjects not as Brethren but as â—â—asts as the basest Beasts of drudgery teaching them by subtilty and by the strength of the Militia to support their own will and to make meer Spunges of the publick Coffers with which his Writings are full fraught Leviathan or Malmsbury Hobs 's Positions or Sentiments smell rank of the same Leaven or more abominable if more abominable can be viz. That the Power of Kings cannot without his consent be transferred to another that he cannot forfeit it that he cannot be accused by any of his Subjects of injury that he cannot be censured by them that he is Judge of Doctrines that he is sole Legislator and Supreme Judge of Controversies chap. 20. p. 102. Some Pulpits also preach much after the same rate viz. That it is the Sacred Priviledge of Kings only for their offences to be exempt from all human Jurisdiction That Kings as such are above the Law That though they transgress yet they are not in the least liable to the censure of any Man no Tribunal under Heaven hath Power to take Cognizance of them or call them into Question p. 5. That they have Power to Dispence with the Laws at their Pleasure p. 7. That for Subjects to question the Actions though offensive or Authority of their Princes is inconsistent with the nature of the Kingly Office and diametrically opposite to the Liberty of the Subject p. 7 8. The Scepter being put into their hands by God Almighty alone and with that the Power he gives them is so great as that he maketh them capable of being accountable to none but God himself according to Prov. 8. 16. By me Kings reign p. 16. That Kings may alter Religion at their pleasure according to the old unalterable Maxime qualis Rex talis lex p. 25. William Clifford 's Sermon preached at Wakefield Octob. 30. 1681. Salmasius more excusably as being a stranger to our Laws dances after the same Pipe That Kings have none to judge them but God only That they are above Laws That by no Law written or unwritten natural or divine can they be made guilty of any ill by their Subjects or towards them In which Positions there is a woundy deal of wicked Policy but not one Iota of true Religion and Piety highly injurious to the Liberty and Happiness of the whole Race of Mankind for whose Happiness and Solace the whole World was created as if a few Princes and Potentates were born like Leviathan only to take their Pastimes in this World to be clothed in Purple and Scarlet to lie upon Beds of Ivory and to stretch themselves upon Couches to chant to the sound of the Vial and drink Wine in Bowles and to nourish their Hearts as in a day of Slaughter and all others to be governed with Whips and Kicks Thornes and Briers and yet we must not so much as mutter or peep against them or say What dost thou Not considering that God that made them in the Womb made these and made them all equal and that they were created out of one and the self-same Clay and redeemed by one and the same precious Blood without respect of Persons and that it was the People that differenced them by making them Kings and Queens and Princes sitting upon Thrones riding in Chariots and on Horses they and their Servants and not they the People What is this but to be brutish in Knowledge That Machiavel and Hobs should belch out such Principles I do not much wonder but that any Protestant Pulpits should Preach out such Doctrines I stand amazed To such the 21st verse of the 10th chapter of Jeremiah may justly be applied the Pastors are become brutish In populo regendo Rex habet superiorem legem per quam factus est Rex Curiam suam viz. Comites Barâ—nes Comites dicuntur quasi socii regis qui habet socium habet Magistrum ideo si Rex fuerit sine fraeno i. e. Sine lege debet ei fraenum ponere Bracton lib. 2. c. 16. â—â—â—ta l. 1. c. 17. In Government Kings have Superiors viz. the Laws by which they are made Kings and his Court of Parliament therefore if Kings are without a Bridle i. e. without the Laws they ought to have Bridles put upon them Every single Person hath his remedy by Law in the Courts of Judicature against Kings how much more just is it reasonable and necessary that if Kings injure all all should have their remedy to Bridle him It 's great simplicity to provide against petty Injuries of Kings against private Persons and yet to be lawless against common and publick injuries whereby they may destroy all without Law that by Law could not injure any single Person As for the Title of Supreme Head and Governor as it is meant of single Persons not of Courts or of the Collective body in Parliament so it is meant in Curiâ not in Camerâ in his Courts that his Majesty is Supreme Head and Governor over all Persons and in all Causes and not in his private Capacity And most truly
be manifest that the People even in such choice had their share their influence and their power also as in Saul And all the People went to Gilgal and there they made Saul King before the Lord in Gilgal 1 Sam. 10. 15. And several Writers are of opinion that Saul was not only anointed with Oyle first privately by Samuel 1 Sam. 10. 12. but also at two other times before the People once at Mizpah an another time at Gilgal So David though he were anointed of the Lord by Samuel yet all the mâ—n of Israel came with a perfect heart to Hebron and anointed David King over Israel and made a Covenant with him before the Lord 1 Chron. 11. 2. 12. 38. In summ Many Writers of several Persuations from these examples conclude that the People under God make the King. Beside the want of the publick Stamp of the People made Zimri who had usurped that Title and Office no King and yet made Omri King 1 Kings 16. 16. And those whom the rulers of Jezreel at Samaria 2 Kings 10. refused to make a King were no Kings This Power of the People made Athaliah a Princess no Princess by their translation of the Crown to Joah 2 Cron. 23. There 's now no Voice no immediate Oracle from Heaven no Samuel no Elisha no inspired Prophets to anoint David not Eliab Solomon not Adoniah no particular persons and therefore no persons can have a just Title to Crowns but by choice and approbation publick God hath only ratified the Kingly Office and described fit qualifications viz. Men of truth hating covetousness c. Exod. 18. 21. Deut. 1. 16 17. but doth not now name or appoint particular Persons but hath left it wholly and freely to the People to chuse for themselves and make their own Conditions It is farther observable that Saul after Samuel from the Lord had anointed him remained a private Person and no King till the People had elected and made him a King. So David though anointed by the same Divine Authority yet remained formally a Subject and not a King till Israel made him King at Hebron So Solomon though by God designed and ordained to be King yet never was King till the people made him King 1 Kings 1. What greater demonstration can there possibly be than such Scriptural both Precepts and Examples as are here set down for justifying of the right of the People in the choice of Kings and not only in the free choice of this or that Person to the Diadem or to this or that Government but also in the alteration and granting of Succession and in the change and alteration of the very Form of Government Moreover by God's owning Kings to reign by him Prov. 8. 16. is no more than God's general owning and constituting all things else viz. thine is the greatness and the power and the glory and the victory and the majesty for all that is in Heaven and Earth is thine thine is the Kingdom O Lord and thou art exalted above all both riches and honour come of thee and thou reignest over all and in thine hand is power and might and in thine hand it is to make great and to give strength unto all 1 Chron. 29. 11 12. This general Right and Power of the Almighty doth not abolish or impeach the Natural Right of his People in chusing themselves a King on their own Tearms and Laws woful experience having taught them that to live by one Man's will would be the cause of all Mens miseries the truth whereof we see experienced to this very day both in the Eastern and Western Empires which constrained them to devise Laws for the Regulation of every Man 's just Right that no Man might by lawless Dominion oppress another but that all should be governed by their own consent by Laws of their own making respect always being had Christianly speaking to the Laws of the Almighty Cui plus licet quam par est plus vult quam licet A People may be without a King but there can be no King without a People and therefore Kings not particularly and immediately named by God must own their Establishment and Inthronization to the People and ought to be accountable in some cases to them for they that give Power are by just Reason accounted greater and more honourable than they that receive it according to that old Maxime Quicquid efficit tale est magis tale and though Kings are to be accounted singulis majores yet are universis minores For Kings are not Patrons of their Kingly Power but Administrators and deputed Executioners thereof Now it necessarily follows that by the same Reason Kings have their Authority from the People so to them they are of right to be accountable for they chuse them and covenant with them for their own good If by God Kings do reign by God also the People have right and liberties to be governed how they please for the immediate appointment of Kings by God himself by his Prophets being now ceased the application of the Powers of the governed to this or that Person is left wholly to the common consent of themselves Be the right of Kings and of the People what it will from God they both equally derive it Wherever the People create themselves a King by the same right he is accountable to them and it participates as much of Divine right for the People to curb and oppose oppressing wicked Kings as to make Kings according to the 149 Psalm 8 9. To bind their kings with chains and their nobles with fetters of iron To execute upon them the judgment written this honour have all his Saints Nay God 's own People on whom he had set his Love had his own Command that when he had brought them into the Land whither they were going to possess That they should smite them and utterly destroy them and shew no mercy unto them Deut. 7. 1 2. Kings are constituted by God and Man to go in and out before them for Protection and Comfort not for Violence and Oppression and it is by righteousness that the Throne is established and iniquity will be the ruine of any Nation fury is not in him Isaiah 27. 4. And God himself hath given no Power to Kings Princes or Potentates but what is just and honest and hath tied them up and bound them by Laws viz. He shall not multiply horses to himself he shall not multiply wives to himself that his heart turn not away neither shall be greatly multiply to himself silver and gold And it shall be when he sitteth upon the Throne of his kingdom that he shall write him a copy of this Law in a Book And he shall read therein all the days of his life that he may learn to fear the Lord his God to keep all the words of this law and these statutes to do them That his heart be not lifted up above his Brethren and that he turn not aside from the
any Government no more have Kings for neither God nor the Law of Nature hath given any such Power to Men. And God gives Kings as a Blessing and happily as the best of Governments but if thereby the state of Slavery must uncontrolably be intailed upon them as it necessarily must be if they renounce their whole Liberty it 's a Curse rather than a Blessing but they can no more give it away than they can give away their rational Nature and deny themselves to be reasonable Creatures for it is a Power natural to preserve themselves essentially adhering to every created Being Besides they cannot resign their whole Power as Priests would have them without manifest sin God having made an express Covenant with all the People of Israel that they should be his peculiar People and he would be their God the purport of which Covenant was That all the People should take care that he should be purely worshipped throughout all the Land which Power they cannot resign to Kings unaccountably and absolutely without manifest breach of Covenant and so sin in breaking Covevant with God and thereby provoking his wrath and indignation would pull down Vengeance upon whole Kingdoms Of which more fully hereafter O! Sovereignty is not in the People no more than a whole Kingdom can be one Man Sovereignty being the Abstract and Sovereign being the Concrete What then yet the Power of giving Sovereign Power to this or that Man according to Laws is naturally and radically in the People Obj 〈◊〉 May 4 Car. 1628. the Commons having framed a Petition of Right to be presented to his Majesty and desiring the Concurrence of the Lords they made this addition viz. We present this our humble Petition to your Majesty with the care not only of our own â—â—berties but with due regard to leave intire that Sovereign Power wherewith your Majesty is trusted for the Protection Safety and Happiness of the People Which tearms of Sovereign Power were so distasteful and chagreen to the Commons that they would by no means admit of them alledging for their justification That they seemed to be another distinct Power from the Power of the Law They were never used in any Parliamentary Petition or Magna Charta or in any Confirmation thereof If they should grant it it would seem to imply a Sovereign Power above our known and established Laws which are well known to the Kingdom but they know no Sovereign Power It was a new thing and they would by no means have it inserted into the Petition And the Statute of Magna Charta did bind the King and all his Sovereign Power Upon which ground it was left out Besides Titles of Supreme and Sovereign are verba Solemnia words of course titular and complemental relating only to their Persons but confers no Power what Sovereign Power Kings have are given and limited by Laws of common consent and not absolute What other Laws of Sovereignty there are of right belonging to them nemo sit is past all understanding Absolute Sovereignty in Kings hath no warrant by any Law of God or Nature that belongs to God only who is Lord of all Kingdoms of the Earth and therefore there is no Sovereign Power wherewith Majesty is intrusted either by God or Man but only that which is for the Protection Safety and Happiness of the People which is the Suprema Lex and the cause is very reasonable for that uncontrolable Authority easily degenerates into Tyranny And that Sovereign Power which is in all Governments is in the Legislative Power of that Government settled by Laws of common consent And King James in his Speech to the Parliament March 1609. stigmatizeth Power not bounded by Laws with the black Character of Tyranny yea Tyranny accompanied with Perjury Obj. The People have not Power of life and death What then No more have Kings until impowered by Laws of common consent yet the Power of life and death is eminently and virtually in the People collectively taken though not formally yet they have Power over their own lives radically and virtually for that they may subject themselves to Magistracy and to Laws made by common consent the violation of which may be capital and sanguinary And Kings have no other lawful Power over the lives of their Subjects but by Laws made by like common consent That under the Law and since there have been mutual and reciprocal Covenants between King and People is without all dispute and beyond all contradiction 2 Sam. 5. 3. 1 Chron. 11. 3. 2 Chron. 23. 2. 2 Kings 11. 17. And that they were as equally and reciprocally binding is as true else Why should such Covenants be made publickly before the People if Kings did not in the Covenant tye and oblige themselves to the People And why so solemnly to be made before the Lord in the House of God if not intended to be kept or might uncontrolably break them at pleasure Was God to be called upon and to be a Witness to a figment nay to a cheat Ab sit no all the Covenants mentioned in Holy Writ whether between God and Kings or between Kings and People are mutual I will be your God and you shall be my Poople Levit. 26. 12. The Covenant is so strictly mutual that if the People break the Covenant God is freed from his part of the Covenant Zach. 11. 10. All Covenanters are under a Law before Men. So if Kings break Covenant with their People the People are freed of their Obligation to them If the Oath of God be broken as the Covenant between Abraham and Abimelech Gen. 21. 22 23. Jonathan and David 1 Sam. 18. 3. So the Spies profess to Rahab in the Covenant that they made to her Josh 2. 20. And if thou utter this our business we will be quit of thine Oath which thou hast made us to swear The Obligation of Kings in their Oaths and Covenants to the governed floweth from the peculiar Obligation National betwixt them and the governed and bindeth Kings as Kings for that such Oaths and Covenants are entred into and taken in relation to Government only and therefore are not taken meerly as Men as some vainly suppose but as Kings or as they are to be Kings over them because it is the specifick act of Kings that they are to be obliged unto to Govern the People in righteousness and holiness with their Royal Power which is given them by the People for no other end and they undoubtedly sin before God if they break their Oaths and Covenants made with the Common-wealth And to assert otherways is to suppose Kings to be under no Law of God and so consequently make them either above God or coequal with him which is no other than down-right Blasphemy Therefore it is undoubtedly true that Kings Covenanting with the People to Govern according to the Laws of God and their own municiple Laws and on that Condition receive Thrones Crowns Tributes c. from them and are
was Art. 42. Expl. f. 84. So God by Jeremy threatned to destroy the men of Judah and Jerusalem for that they suffered their King Manasseh to be unpunished King. 4. 21. Jer. 15. And yet the People of Israel had no declared Sovereignty over their Kings but only a tacite and implied Sovereignty by the Laws of God and Nature So when Saul would have put Jonathan his Son to death the People would not suffer him so to do but delivered Jonathan that he died not 1 Sam. 14. When David purposed the reducing of the Ark his Speech to the People was If it please you we will send to the rest of our Brethren that they may assemble themselves unto us and all the Congregation said that they would do so for the thing was right in the Eyes of all the People 1 Chron. 18. After Solomon's death all the Congregation of Israel said to Rehoboam 1 Kings 12. make thy Fathers yoak which he put upon us lighter and we will serve thee because it lay in their choice to subject or free from the Kings Power The People likewise took Jeremy when he had prophesied against them and said Thou shalt die the death Jer. 26. And afterwards reversed their Sentence upon Jeremy's declaring That the words he spoke were commanded from God. Bilson 514 517. The Duke of Saxony and the Lantzgrave answered the Emperor Forasmuch as Cesar intendeth to destroy the True Religion and our Ancient Liberties he giveth us cause enough why we may with good Conscience resist him as both by Profane and Sacred Histories may be proved The Ministers of Magdeburgh delcare how the Inferior may defend themselves against the Superior compelling him to do against the Truth and Rule of Christ's Laws The German Lawyers made evident demonstration That the free States by the Laws of the Empire might defend their Liberties against Cesar to whom they were subject with that condition so may any other Nation if their Magistrates infringe their Laws and Liberties In the Troubles of Germany Anno Dom. 1546. when the Duke of Saxony and the Lantzgrave were Prescribed or Out-lawed they remonstrated That if the Emperor had kept his Covenants they would have done their Duties but because he began first to make the breach the fault is his For since he attempts to root out Religion and subvert our Liberties he giveth us cause enough to resist him with good Conscience matters standing as they do we may resist as may be shewed both by Sacred and Prophane Stories Unjust violence is not God's Ordinance neither are we bound to him by any other reason than if he keep the Conditions on which he was created Emperor Sleid. 18. p. 212 213. So the Magistrates and Ministers of Magdeburgh declared That if our Religion and Liberties left us by our Fore-fathers be preserved we refuse no kind of Duty that ought to be yielded unto Cesar or the Empire Now by the Laws themselves it is provided that the Inferior Magistrates shall not infringe the right of the Superior and so likewise if the Magistrate exceed the limits of his Power and command that which is wicked we need not only not obey him but if he offer force we may resist him Lib. 22. p. 266. Anno 1550. If a Prince should go about to subject his Kingdom to a Foreign Realm or change the form of a Commonwealth from Impery to Tyranny or neglect the Laws established by common consent of Prince and People to execute his own pleasure In these and other cases which might be named if the Nobles and Commons join together to defend their Ancient and Accustomed Liberties Regiment and Laws they may not well be accounted Rebels modestly expressed Bils 520. The People may preserve the Foundation Freedom and Form of their Common-wealth which they fore prized when they first consented to have a King the Law of God giveth no Man leave to resist his Prince But Kingdoms and Commonwealths may proportion their States as they think best by their publick Laws which afterwards the Princes themselves may not violate By Superior Powers ordained by God we understand not only Princes but all Politick States and Regiments some where the People some where the Nobles having the same Interest to the Sword that Princes have in their Kingdoms and in Kingdoms where Princes beat Rule By the Sword we do not mean the Prince's private will against his Laws but his Precepts derived from his Laws and agreeing with his Laws which though it be wicked yet may it not be resisted of any Subject with armed violence Many when Princes offer their Subjects not Justice but Force and despise all Laws to practice their Lusts not every nor any private Man may take the Sword to redress the Prince but if the Laws of the Land appoint the Nobles as next to the King to assist him in doing right and withhold him from doing wrong then be they licensed by Man's Law and so not prohibited by God to interpose themselves for the safeguard of Equity and Innocency and by all lawful and needful means to procure the Prince to be reformed 520 521. Bishop Bedel a Reverend worthy Divine in his Answer to Mr. Wadâ—sworth to satisfie him quo Jure the Protestant Wars in France and Holland are justified saith That the Law of Nature doth not only allow but inforce every living thing to defend it self from violence Then the Law of Nations permitteth those that are in the protection of others to whom they owe no more than an honourable Acknowledgment in case they go about to make themselves absolute Sovereigns and usurp their Liberty to stand for the same And if a lawful Prince which is not yet Lord of his Subjects Lives and Goods shall attempt to despoil them of the same under colour of reducing them to his own Religion after all humble Remonstrances they may stand upon their own Guard and being assailed may repel Force with Force as did the Maccabees under Antiochus In which case notwithstanding the Person of the Prince himself ought always to be Sacred and Inviolable as was Saul to David And lastly if the inraged Minister of a Lawful Prince will abuse his Authority against the Fundamental Laws of the Country it is no Rebellion to defend themselves reserving still their Obedience to their Sovereign inviolate I mention these Two Bishops only as being above all exceptions against whom no just objection can be made either for Learning Piety Loyalty or right Church of England Men. Which considerations I presume kept them from being burnt in July 1683. Which Act surprized not a few sober Loyal Men because if the learned Men of all the Reformed Church of Europe be consulted they will be found Asserters of the like Principles Alas to sacrifice so many Worthy Learned Pious Mens Judgments to Fire and Fagot unheard unrefuted as it is not for their honour so it is no more convincing nor confuting than that Doctors Argument who would confute Bellarmine in
become forfeited for Mal-government should not return unto them who delegated it as well from Kings as from Consuls Senates Tribunes Duumvirates Triumvirates Decemvirates Ephori or any other form of Government is past all understanding It is also scornfully objected this is to be a Duke of Genoa a Duke of Venice not a King. They who have so mean conceits of such Governments which in reality are as much approved and allowed by God as Kingly even by the same Scripture are not worthy to preside in any Government If the Opinion of the Millenaries be true and Christ shall come and reign upon the earth 1000 Years will he not do all things for the good of the Governed Will not his eyes be on the faithful of the Land and on them that excel in virtue will he not hate the works of them that turn aside will he know a wicked Person except to condemn him will he suffer them that have High Looks or Proud Hearts will not his eyes be on the faithful of the Land that they may dwell with him shall not they that walk in a Perfect way serve him shall they that work Deceit dwell in his House or they that tell Lies tarry in his sight and will he not destroy all the Wicked of the Land and cut off all wicked doers from the City of the Lord And cannot Kings do the same whether their power be absolute from God or delegated from the People Hath not Christ been among us already as him that serveth and shall his Vicegerents think it below them to be like their Master Were it not the most desirable condition in the World for Kings Christian to be so seated on Thrones as it could not possibly be in their power to do the least injury to the meanest of their Subjects and yet do good to all Would not this be a condition acceptable in the sight of God and Man would not they thereby become Deliciae humani Generis as once Titus was Will nothing please but quod libet licet their Wills and Pleasures to be their Laws that Justinian-like when instigated by an Imperious Whorish Comedian Theodora they may securely commit Outrages and Cruelties sans nombre or when tickled with a Dancing Herodias shall take off any Head though of a John Baptist or when in the midst of Adulterous Embraces shall betray the strength of a Nation to a Dalilah at pleasure and all these uncontrollably When the Romans had cashiered Proud Traquin their King and in him Kingship they delegated their Power on Two Consuls to be check one upon the other that if one exceeded or abused his Power he might be curb'd by the other and though both should agree to usurp or extend the power given to the prejudice of the People yet both Consuls and all other Magistrates were to be obedient to the Senate whenever the Patricians and People thought fit which was always had in esteem as the Peoples Champion and Defender of their Rights and Laws Tull. orat pro Sestio The like subject were the Decemviri and all other the Magistrates to the Senate insomuch that sometimes the Counsuls were esteemed Enemies before they quitted their Consulship and the Senate took Arms against them So War was raised by the Authority of the Senate against Anthony the Consul for his misdemeanors during his Consulship On the contrary Trajan that Excellent Emperor believing him to have been sent from Heaven to redeem them from the slavery of former Tyrants and to restore unto them their antient Liberties when he gave the Sword the Ensign and Badge of Majesty and Power unto Saburanus Praefect of the Praetorian Cohorts saying Accipe hunc Gladium pro me si recie agam sin aliter in me magis quod moderatorem omnium vel errare minus fas est Use this Sword for my Defence whilst I govern as I ought if otherwise to my Destruction Comite Cestriae Gladium Sancti Edvardi qui Curtein dicitur ante regem bajulante in signum quod comes est Palatii Regem si oberret habeat de Jure Potestatem cohibendi suo sibi scilicet Cestrensi Constabulario ministrante virgâ— Populum cum se incrdinate ingereret subâ—rahente Matth. Paris lib. 3. p. 563. N. 10. At the Marriage of Henry III. King of England with Elianor Daughter of Raymund Earl of Provence the Earl of Chester carried the Sword of St. Edward called Curtein before him in token that he was Master of the Palace and that he had publick Authority to curb the King if he erred The same Ensign of publick Authority is continued to this very day before the Kings of England King Charles II. at his Coronation being set in a rich Chair under a glorious Cloth of State Sir Gilbert Talbot Knight Master of the Jewel-House presented the Sword of State also the Sword called Curtana and two other Swords to the Lord High Constable who took and delivered them to the Lord High Chamberlain and laid them on the Table before the King. The like Powers had the Masters of the Palace in France and other Countries It is plain that though that great and just Emperor Traj an had so great Power conferred on him yet was so just as to appoint a Judge though inferior to him over his Actions How much more just therefore was he when he superior in Power having all the Armies and Conquests at his beck and consequently could not be forced to obey the Senate or People yet would do it in respect of his Office and Duty to his Delegators and thereby acknowledge them to be his superior of whom Pliny in his Panegyrick saith That senatus ut susciperet quartum Consulatum rogavit jussit Which are words of Command and they that might Command might Judge and Censure So Marcus Aurelius the Emperor when Cassius the Praefect of Syria endeavoured to deprive him of his Kingdom offered himself to the judgment of the Senate and the People of Rome as it should seem best unto them Now who could better judge of Kingly Power than such just and upright Kings and in their own Cause Certainly by the Law of Nature all good Kings have the Senate or the People both for their Peers and Superiors in some Kingdoms though Tyrants hated both of God and Man will neither have Superior nor Peer As of old Laws the Law of Nature guiding by force were devised so when Laws came to be despised and slighted by the same Law of Nature there must recourse be had unto force again so to think is just and prudent so to do is true courage so to think and do is the height of a prudent vertue This remains indelible in Nature That the Senate or People are always Superior in some Countries to Kings good or bad the reason is natural for that the People do transfer their own Power or to speak yet more properly the use and exercise of some of their own Power unto Kings the
Power it self still virtually remaining in themselves of which they cannot so totally devest themselves but the Spring and Fountain thereof will still remain in them which is demonstrable for that in making Laws their consent is still required as absolutely necessary The nearer we approach and imitate Natures Laws the more demonstrable is the Power of the People above the Power of Kings their Power being only derived from the same People as a Stream from the Fountain It is as evident that the People if free do not simply but hypothetically transfer their Power unto Kings neither undeed can they by the Law of Nature but only conditionally and for the sake of Order of common Justice Peace and Liberty from which if Kings do deviate it is always to be understood that the People have transferred no such Power and indeed transferred nothing because they transferred it only for certain good ends and purposes Nature so guiding which ends if frustrated or perverted the very Pacts and Delegations themselves are ipso facto voidable nay void at the pleasure of the Senate or People and therefore the People must consequently be superior to Kings who though singulis Majores yet in true construction of Law and Equity are universis Minores In a popular State it is generally acknowledged that Magistrates placed by the People may be censured by the People and in an Aristocracy by the Optimacy and yet it 's held monstrous that Kings should be called to account in some Countries which if true concludes thus much certainly true That they are more than brutishly foolish ever to admit of any such Government which most certainly renders them slaves at the will of Kings How comes it to pass that Kings only of all other Governors must Reign unquestionable uncensured uncontrolable Do Men born under such a Regiment naturally become so desperately sottish and bruitish as to love slavery better than freedom Why do they then prescribe them Laws and conditions of Governing and Oaths for the more certain performance of them at their first admittance That they might with the better grace jeer and scorn and enslave them Or that they only of all the Sons and Daughters of Men might have liberty to break Laws and perjure themselves impuné Or be left only to the Judgment of the great day Where 's the great difference and distance between Kings and popular Magistrates Title only excepted Which Title the very People gave them for the better Grace Adornment and Majesty of their own Government The same Power and Authority is transferred unto Kings and unto popular Magistrates by the People both one and the other sworn alike to observance of the Laws and the obliged to obey not one nor the other any longer than quamdiu id bene gesserit Who makes the difference If any God hath already decided it on behalf of the popular Magistracy by his own example who of his own infinite Wisdom Authority and Goodness towards Mankind instituted Judges as the best Form of Government but appointed Kings in Wrath and Anger and Indignation and at the foolish instance of a froward and rebellious People and as a punishment on them who had rejected him and his Government and rebelled against him whereby it is manifest that Kingship was first ordained as a punishment not as the best Government To assert absolute Dominion to be in Kings from the example of Fathers and of Masters of Families hath no ground in Nature Scripture Reason Aristotle in the beginning of his Politicks condemns that Opinion of there being but little difference in the similitude between a Kingdom and a Family Regnum à familia non numero solum sed specie differt For Fathers beget their Children And the People beget or create their Kings and not Kings the People And Fathers provide for their Children but the People provide for Kings not only for their Necessaries but for Superfluities for their Magnificence and for their Grandeur And according to Diodorus 11 o. Kingdoms of old were wont to be given not necessarily to the Sons of Kings but to them in whom did appear most apparent signs and tokens of Love and Kindness towards the People and of common good So Justin Principio rerum gentium nationumque imperium penes reges erat quos ad fastigium hujus majestatis non ambitio Popularis sed spectata inter bonos moderatio provehebat Whereby it plainly appears that Paternal and Hereditary Impery subscribes and is subservient to Virtue and to the Right of Nations Which Original of Kingly Dominion both Reason and Cause are most especially natural for which very cause and reason Men did first assemble and agree on a Government not that one should insult and domineer over all the rest but whosoever did injure another there should be a Law and a Judg amongst them for the defence and recompencing the injured Primus Rex Agis ab Ephoris est morte mulctatus 192. Ob. Rex non est nisi unus sit unicus If so then many that were Kings of England were not To let pass many of the Saxons who had many Peers in their Government either Sons or Brothers It 's manifest that Hen. II. of the Norman Race reigned with his Son. Consentire vultis de habendo ipsum regem 193. Quod opus non foret si regnum jure esset haereditarium apud Reges usurpatio pro Jure saepissime obtinet In the Creation of our Kings the Archbishop asks the People four times Consentire vultis de habendo ipsum regem After the Roman Custom vultis jubetis hunc regnare Of which there was no need if the King had an absolute independent Right of Inheritance Therefore as William the Conqueror took an Oath of Allegiance from the People after the Battel of Hastings so the People took his Oath that he would keep Faith with them c. After which when he broke his Faith with the People they took Arms again then he most solemnly swore again That he would observe and keep the Ancient Laws of England if he tyrannized over them it was not jure belli but jure perjurii And when he died he declared Neminem Anglici regni eonstituo haeredem lib. Cadomens inde jus belli jus haereditarium cum ipso mortuo Gulielmo sepultum est Rex non potest facere injuriam quod scelerate interpretantur Non est injuria quod facit Rex quia in eo non punitur If it be demanded by what Authority Kings may be indicted and censured It 's answered by the same Authority by the same Men and the same Laws that delegated their Power to create them King and that by the self-same reason Kings have no Power but what they have received from the People and therefore they must have Power over Kings and by the Law of St. Edward Kings not governing righteously lose the very name of King and it denies him to be a King. It is never to be forgotten