his Son gave them occasion to resume If this was commendable in them it must be so in other Nations If the Germans might preserve their Liberty as well as the Parthians submit themselves to absolute Monarchy 't is as lawful for the descendents of those Germans to continue in it as for the Eastern Nations to be slaves If one Nation may justly chuse the Government that seems best to them and continue or alter it according to the changes of times and things the same right must belong to others The great variety of Laws that are or have bin in the world proceeds from this and nothing can better shew the wisdom and virtue or the vices and folly of Nations than the use they make of this right they have bin glorious or infamous powerful or despicable happy or miserable as they have well or ill executed it If it be said that the Law given by God to the Hebrews proceeding from his wisdom and goodness must needs be perfect and obligatory to all Nations I answer that there is a simple and a relative perfection the first is only in God the other in the things he has created He saw that they were good which can signify no more than that they were good in their kind and suted to the end for which he designed them For if the perfection were absolute there could be no difference between an Angel and a Worm and nothing could be subject to change or death for that is imperfection This relative perfection is seen also by his Law given to mankind in the persons of Adam and Noah It was good in the kind fit for those times but could never have bin enlarged or altered if the perfection had bin simple and no better evidence can be given to shew that it was not so than that God did asterwards give one much more full and explicit to his People This Law also was peculiarly applicable to that People and season for if it had bin otherwise the Apostles would have obliged Christians to the intire observation of it as well as to abstain from idolatry fornication and blood But if all this be not so then their judicial Law and the form of their Commonwealth must be received by all no human Law can be of any value we are all Brethren no man has a prerogative above another Lands must be equally divided amongst all Inheritances cannot be alienated for above fifty years no man can be raised above the rest unless he be called by God and enabled by his Spirit to conduct the People when this man dies he that has the same Spirit must succeed as Joshua did to Moses and his Children can have no title to his Office when such a man appears a Sanhedrim of seventy men chosen out of the whole People are to judg such causes as relate to themselves whilst those of greater extent and importance are referred to the General Assemblies Here is no mention of a King and consequently if we must take this Law for our pattern we cannot have one If the point be driven to the utmost and the precept of Deuteronomy where God permitted them to have a King if they thought fit when they came into the promised Land be understood to extend to all Nations every one of them must have the same liberty of taking their own time chusing him in their own way dividing the Kingdom having no King and setting up other Governors when they please as before the Election of Saul and after the return from the Captivity and even when they have a King he must be such a one as is describ'd in the same Chapter who no more resembles the Soveraign Majesty that our Author adores and agrees as little with his Maxims as a Tribun of the Roman People We may therefore conclude that if we are to follow the Law of Moses we must take it with all the appendages a King can be no more and no otherwise than he makes him for whatever we read of the Kings they had were extreme deviations from it No Nation can make any Law and our Lawyers burning their Books may betake themselves to the study of the Pentateuch in which tho some of them may be well versed yet probably the profit arising from thence will not be very great But if we are not obliged to live in a conformity to the Law of Moses every People may frame Laws for themselves and we cannot be denied the right that is common to all Our Laws were not sent from Heaven but made by our Ancestors according to the light they had and their present occasions We inherit the same right from them and as we may without vanity say that we know a little more than they did if we find our selves prejudic'd by any Law that they made we may repeal it The safety of the People was their supreme Law and is so to us neither can we be thought less fit to judg what conduces to that end than they were If they in any Age had bin perswaded to put themselves under the power or in our Author's phrase under the sovereign Majesty of a child a fool a mad or desperately wicked person and had annexed the right conferred upon him to such as should succeed it had not bin a just and right Sanction and having none of the qualities essentially belonging to a Law could not have the effect of a Law It cannot be for the good of a People to be governed by one who by nature ought to be governed or by age or accident is rendred unable to govern himself The publick interests and the concernments of private men in their lands goods liberties and lives for the preservation of which our Author says that regal Prerogative is only constituted cannot be preserved by one who is transported by his own passions or follies a slave to his lusts and vices or which is sometimes worse governed by the vilest of men and women who flatter him in them and push him on to do such things as even they would abhor if they were in his place The turpitude and impious madness of such an act must necessarily make it void by overthrowing the ends for which it was made since that justice which was sought cannot be obtain'd nor the evils that were fear'd prevented and they for whose good it was intended must necessarily have a right of abolishing it This might be sufficient for us tho our Ancestors had enslaved themselves But God be thanked we are not put to that trouble We have no reason to believe we are descended from such fools and beasts as would willingly cast themselves and us into such an excess of misery and shame or that they were so tame and cowardly to be subjected by force or fear We know the value they set upon their Liberties and the courage with which they defended them and we can have no better example to incourage us never to suffer them to be violated or diminished
and the Verdict is from them tho the Judges having heard the point argued declare the sense of the Law thereupon Wherefore if I should grant that the King might personally assist in judgments his work could only be to prevent frauds and by the advice of the Judges to see that the Laws be duly executed or perhaps to inspect their behaviour If he has more than this it must be by virtue of his politick capacity in which he is understood to be always present in the principal Courts where Justice is always done whether he who wears the Crown be young or old wise or ignorant good or bad or whether he like or dislike what is done Moreover as Governments are instituted for the obtaining of Justice and the King is in a great measure entrusted with the power of executing it 't is probable that the Law would have required his presence in the distribution if there had bin but one Court that at the same time he could be present in more than one that it were certain he would be guilty of no miscarriages that all miscarriages were to be punished in him as well as in the Judges or that it were certain he should always be a man of such wisdom industry experience and integrity as to be an assistance to and a watch over those who are appointed for the administration of Justice But there being many Courts sitting at the same time of equal Authority in several places far distant from each other impossible for the King to be present in all no manner of assurance that the same or greater miscarriages may not be committed in his presence than in his absence by himself than others no opportunity of punishing every delict in him without bringing the Nation into such disorder as may be of more prejudice to the publick than an injury done to a private man the Law which intends to obviate offences or to punish such as cannot be obviated has directed that those men should be chosen who are most knowing in it imposes an Oath upon them not to be diverted from the due course of justice by fear or favour hopes or reward particularly by any command from the King and appoints the severest punishments for them if they prove false to God and their Country If any man think that the words cited from Bracton by our Author upon the question Quis primo principaliter possit debeat judicare c. Sciendum est quod Rex non alius si solus ad haec sufficere possit cum ad hoc per virtutem Sacramenti teneatur are contrary to what I have said I desire the context may be considered that his opinion may be truly understood tho the words taken simply and nakedly may be enough for my purpose For 't is ridiculous to infer that the King has a right of doing any thing upon a supposition that 't is impossible for him to do it He therefore who says the King cannot do it says it must be done by others or not at all But having already proved that the King merely as King has none of the qualities required for judging all or any cases and that many Kings have all the desects of age and person that render men most unable and unfit to give any Sentence we may conclude without contradicting Bracton that no King as King has a power of judging because some of them are utterly unable and unfit to do it and if any one has such a power it must be confer'd upon him by those who think him able and fit to perform that work When Filmer finds such a man we must inquire into the extent of that power which is given to him but this would be nothing to his general proposition sor he himself would hardly have inferr'd that because a power of judging in some cases was conserred upon one Prince on account of his fitness and ability therefore all of them however unfit and unable have a power of deciding all cases Besides if he believe Bracton this power of judging is not inherent in the King but incumbent upon him by virtue of his Oath which our Author endeavours to enervate and annul But as that Oath is grounded upon the Law and the Law cannot presume impossibilities and absurdities it cannot intend and the Oath cannot require that a man should do that which he is unable and unfit to do Many Kings are unfit to judg causes the Law cannot therefore intend they should do it The Context also shews that this imagination of the King 's judging all causes if he could is merely Chymerical for Bracton says in the same Chapter that the power of the King is the power of the Law that is that he has no power but by the Law And the Law that aims at justice cannot make it to depend upon the uncertain humour of a Child a Woman or a foolish Man for by that means it would destroy it self The Law cannot therefore give any such power and the King cannot have it If it be said that all Kings are not so that some are of mature age wise just and good or that the question is not what is good sor the Subject but what is glorious to the King and that he must not lose his right tho the People perish I answer first that whatsoever belongs to Kings as Kings belongs to all Kings this Power of judging cannot belong to all for the Reasons above mentioned it cannot therefore belong to any as King nor without madness be granted to any till he has given testimony of such Wisdom Experience Diligence and Goodness as is required for so great a work It imports not what his Ancestors were Virtues are not entail'd and it were less improper for the Heirs of Hales and Harvey to pretend that the Clients and Patients of their Ancestors should depend upon their advice in matters of Law and Physick than for the Heirs of a great and wise Prince to pretend to Powers given on account of virtue if they have not the same talents for the performance of the works required Common sense declares that Governments are instituted and Judicatures erected for the obtaining of justice The Kings Bench was not established that the Chief Justice should have a great Office but that the oppressed should be relieved and right done The Honor and Profit he receives comes in as it were by accident as the rewards of his service if he rightly perform his duty but he may as well pretend he is there for his own sake as the King God did not set up Moses or Joshua that they might glory in having six hundred thousand men under their command but that they might lead the People into the Land they were to possess that is they were not for themselves but for the People and the glory they acquir'd was by rightly performing the end of their institution Even our Author is obliged to confess this when he says that the Kings Prerogative
Countries they enslaved But if this be equally false sottish absurd and execrable all those Epithets belong to our Author and his Doctrine for attempting to depress all modest and regular Magistracies and endeavouring to corrupt the Scripture to patronize the greatest of Crimes No man therefore who does not delight in error can think that the Apostle designed precisely to determin such questions as might arise concerning any one mans right or in the least degree to prefer any one form of Government before another In acknowledging the Magistrate to be Man's Ordinance he declares that Man who makes him to be may make him to be what he pleaseth and tho there is found more prudence and virtue in one Nation than in another that Magistracy which is established in any one ought to be obeyed till they who made the establishment think fit to alter it All therefore whilst they continue are to be look'd upon with the same respect Every Nation acting freely has an equal right to frame their own Government and to employ such Officers as they please The Authority Right and Power of these must be regulated by the judgment right and power of those who appoint them without any relation at all to the name that is given for that is no way essential to the thing The same name is frequently given to those who differ exceedingly in right and power and the same right and power is as osten annexed to Magistracies that differ in name The same power which had bin in the Roman Kings was given to the Consuls and that which had bin legally in the Dictators for a time not exceeding six months was asterwards usurped by the Cesars and made perpetual The supreme Power which some pretend belongs to all Kings has bin and is enjoy'd in the fullest extent by such as never had the name and no Magistracy was ever more restrain'd than those that had the name of Kings in Sparta Arragon England Poland and other places They therefore that did thus institute regulate and restrain create Magistracies and give them names and powers as seemed best to them could not but have in themselves the coercive as well as the directive over them for the regulation and restriction is coercion but most of all the institution by which they could make them to be or not to be As to the exterior force 't is sometimes on the side of the Magistrate and sometimes on that of the People and as Magistrates under several names have the same work incumbent upon them and the same Power to perform it the same Duty is to be exacted from them and rendred to them which being distinctly proportion'd by the Laws of every Country I may conclude that all Magistratical Power being the Ordinance of Man in pursuance of the Ordinance of God receives its being and measure from the Legislative Power of every Nation And whether the power be placed simply in one a few or many men or in one body composed of the three simple Species whether the single Person be called King Duke Marquess Emperor Sultan Mogol or Grand Signor or the number go under the name of Senat Council Pregadi Diet Assembly of Estates and the like 't is the same thing The same obedience is equally due to all whilst according to the Precept of the Apostle they do the work of God for our good and if they depart from it no one of them has a better Title than the other to our obedience SECT XIII Laws were made to direct and instruct Magistrates and if they will not be directed to restrain them I Know not who they are that our Author introduces to say that the first invention of Laws was to bridle or moderate the overgreat Power of Kings and unless they give some better proof of their judgment in other things shall little esteem them They should have considered that there are Laws in many places where there are no Kings that there were Laws in many before there were Kings as in Israel the Law was given three hundred years before they had any but most especially that as no man can be a rightful King except by Law nor have any just Power but from the Law if that Power be found to be overgreat the Law that gave it must have bin before that which was to moderate or restrain it for that could not be moderated which was not in being Leaving therefore our Author to fight with these Adversaries if he please when he finds them I shall proceed to examin his own Positions The truth is says he the Original of Laws was for the keeping of the Multitude in order Popular Estates could not subsist at all without Laws whereas Kingdoms were govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give power to Draco first then to Solon to make them Laws If we will believe him therefore wheresoever there is a King or a man who by having power in his hands is in the place of a King there is no need of Law He takes them all to be so wise just and good that they are Laws to themselves Leges viventes This was certainly verified by the whole succession of the Cesars the ten last Kings of Pharamond's Race all the Successors of Charles the Great and others that I am not willing to name but referring my self to History I desire all reasonable men to consider whether the piety and tender care that was natural to Caligula Nero or Domitian was such a security to the Nations that lived under them as without Law to be sufficient for their preservation for if the contrary appear to be true and that their Government was a perpetual exercise of rage malice and madness by which the worst of men were armed with power to destroy the best so that the Empire could only be saved by their destruction 't is most certain that mankind can never fall into a condition which stands more in need of Laws to protect the innocent than when such Monsters reign who endeavour their extirpation and are too well furnished with means to accomplish their detestable designs Without any prejudice therefore to the Cause that I defend I might confess that all Nations were at the first governed by Kings and that no Laws were imposed upon those Kings till they or the Successors of those who had bin advanced for their virtues by falling into Vice and Corruption did manifestly discover the inconveniences of depending upon their will Besides these there are also children women and fools that often come to the succession of Kingdoms whose weakness and ignorance stands in as great need of support and direction as the desperate fury of the others can do of restriction And if some Nations had bin so sottish not to foresee the mischief of leaving them to their will others or the same in succeeding Ages discovering them could no more be obliged to continue in so pernicious a
a Commonwealths-man as Cato but the washed Swine will return to the Mire He overthrows all by a preposterous conjunction of the rights os Kings which are just and by Law with those of Tyrants which are utterly against Law and gives the sacred and gentle name os Father to those Beasts who by their actions declare themselves enemies not only to all Law and Justice but to Mankind that cannot subsist without them This requires no other proof than to examine whether Attila or Tamerlan did well deserve to be called Fathers of the Countries they destroy'd The first of these was usually called the scourge of God and he gloried in the Name The other being reproved for the detestable cruelties he exercised made answer You speak to me as to a man I am not a man but the scourge of God and plague of Mankind This is certainly sweet and gentle Language savouring much of a fatherly tenderness There is no doubt that those who use it will provide for the safety of the Nations under them and the preservation of the Laws of Nature is rightly referred to them and 't is very probable that they who came to burn the Countries and destroy the Nations that fell under their power should make it their business to preserve them and look upon the former Governors as their Fathers whose acts they were obliged to confirm tho they seldom attained to the Dominion by any other means than the slaughter of them and their Families But if the enmity be not against the Nation and the cause of the war be only for Dominion against the ruling Person or Family as that of Baasha against the house of Jeroboam of Zimri against that of Baasha of Omri against Zimri and of Jehu against Joram the prosecution of it is a strange way of becoming the Son of the Person destroyed And Filmer alone is subtil enough to discover that Jehu by extinguishing the house of Ahab drew an obligation upon himself of looking on him as his Father and confirming his acts If this be true Moses was obliged to confirm the acts of the Kings of the Amalekites Moabites and Amorites that he destroy'd the same duty lay upon Joshua in relation to the Cananites but 't is not so easily decided to which of them he did owe that deference for the same could not be due to all and 't is hard to believe that by killing above thirty Kings he should purchase to himself so many Fathers and the like may be said of divers others Moreover there is a sort of Tyrant who has no Father as Agathocles Dionysius Cesar and generally all those who subvert the Liberties of their own Countrey And if they stood obliged to look upon the former Magistrates as their Predecessors and to confirm their Acts the first should have bin to give impunity and reward to any that would kill them it having bin a fundamental Maxim in those States That any man might kill a Tyrant This being in all respects ridiculous and absurd 't is evident that our Author who by proposing such a false security to Nations for their Liberties endeavours to betray them is not less treacherous to Kings when under a pretence of defending their rights he makes them to be the same with those of Tyrants who are known to have none and are Tyrants because they have none and gives no other hopes to Nations of being preserved by the Kings they set up for that end than what upon the same account may be expected from Tyrants whom all wise men have ever abhorr'd and affirmed to have bin produced to bring destruction upon the World and whose Lives have verifi'd the Sentence This is truly to depose and abolish Kings by abolishing that by which and for which they are so The greatness of their Power Riches State and the pleasures that accompany them cannot but create enemies Some will envy that which is accounted Happiness others may dislike the use they make of their Power some may be unjustly exasperated by the best of their Actions when they find themselves incommoded by them others may be too severe judges of slight miscarriages These things may reasonably temper the joys of those who delight most in the advantages of Crowns But the worst and most dangerous of all their enemies are these accursed Sycophants who by making those that ought to be the best of men like to the worst destroy their Being and by perswading the world they aim at the same things and are bound to no other rule than is common to all Tyrants give a fair pretence to ill men to say They are all of one kind And if this should be received for truth even they who think the miscarriages of their Governors may be easily redressed and desire no more would be the most fierce in procuring the destruction of that which is naught in Principle and cannot be corrected SECT XVII Kings cannot be the Interpreters of the Oaths they take OUR Author's Book is so full of absurdities and contradictions that it would be a rope of Sand if a continued series of frauds did not like a string of Poisons running through the whole give it some consistence with it self and shew it to be the work of one and the same hand After having endeavoured to subvert the Laws of God Nature and Nations most especially our own by abusing the Scriptures falsly alledging the Authority of many good Writers and seeking to obtrude upon Mankind a universal Law that would take from every Nation the right of constituting such Governments within themselves as seem most convenient for them and giving rules for the administration of such as they had established he gives us a full view of his Religion and Morals by destroying the force of the Oath taken by our Kings at their Coronation Others says he affirm that although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronation tie them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy judgments indifferent and upright Justice and to use discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee c. To which the King answers in the Affirmative being first demanded by the Archbishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of the antient times granted from God by just and devout Kings unto the English Nation by Oath unto the said People especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward From this he infers That the King is not to observe all Laws but such as are upright because he finds evil Laws mention'd in the Oath of Richard the
of late bin given to Monk and his honourable Dutchess New phrases have bin invented to please Princes or the sense of the old perverted as has happen'd to that of Le Roy s'avisera And that which was no more than a Liberty to consult with the Lords upon a Bill presented by the Commons is by some men now taken for a Right inherent in the King of denying such Bills as may be offer'd to him by the Lords and Commons tho the Coronation Oath oblige him to hold keep and defend the just Laws and Customs quas vulgus elegerit And if a stop be not put to this exorbitant abuse the words still remaining in Acts of Parliament which shew that their Acts are our Laws may perhaps be also abolished But tho this should come to pass by the slackness of the Lords and Commons it could neither create a new Right in the King nor diminish that of the People But it might give a better colour to those who are Enemies to their Country to render the Power of the Crown arbitrary than any thing that is yet among us SECT XXXV The Authority given by our Law to the Acts performed by a King de facto detract nothing from the peoples right of creating whom they please THEY who have more regard to the prevailing Power than to Right and lay great weight upon the Statute of Henry the seventh which authorizes the Acts of a King de facto seem not to consider that thereby they destroy all right of Inheritance that he only is King de facto who is received by the People and that this reception could neither be of any value in it self nor be made valid by a Statute unless the People and their Representatives who make the Statute had in themselves the power of receiving authorizing and creating whom they please For he is not King de facto who calls himself so as Perkin or Simnel but he who by the consent of the Nation is possess'd of the Regal Power If there were such a thing in nature as a natural Lord over every Country and that the right must go by descent it would be impossible for any other man to acquire it or for the people to confer it upon him and to give the Authority to the Acts of one who neither is nor can be a King which belongs only to him who has the right inherent in himself and inseparable from him Neither can it be denied that the same power which gives the validity to such Acts as are performed by one who is not a King that belongs to those of a true King may also make him King for the essence of a King consists in the validity of his Acts. And 't is equally absurd for one to pretend to be a King whose Acts as King are not valid as that his own can be valid if those of another are for then the same indivisible Right which our Author and those of his principles assert to be inseparable from the Person would be at the same time exercised and enjoyed by two distinct and contrary Powers Moreover it may be observed that this Statute was made after frequent and bloody Wars concerning Titles to the Crown and whether the cause were good or bad those who were overcome were not only subject to be killed in the field but afterwards to be prosecuted as Traitors under the colour of Law He who gained the Victory was always set up to be King by those of his party and he never failed to proceed against his Enemies as Rebels This introduced a horrid series of the most destructive mischiefs The fortune of War varied often and I think it may be said that there were few if any great Families in England that were not either destroy'd or at least so far shaken as to lose their Chiefs and many considerable branches of them And experience taught that instead of gaining any advantage to the Publick in point of Government he for whom they fought seldom proved better than his Enemy They saw that the like might again happen tho the title of the reigning King should be as clear as descent of blood could make it This brought things into an uneasy posture and 't is not strange that both the Nobility and Commonalty should be weary of it No Law could prevent the dangers of battel for he that had followers and would venture himself might bring them to such a decision as was only in the hand of God But thinking no more could justly be required to the full performance of their Duty to the King than to expose themselves to the hazard of battel for him and not being answerable for the success they would not have that Law which they endeavour'd to support turned to their destruction by their Enemies who might come to be the interpreters of it But as they could be exempted from this danger only by their own Laws which could authorize the Acts of a King without a Title and justify them for acting under him 't is evident that the power of the Law was in their hands and that the acts of the person who enjoyed the Crown were of no value in themselves The Law had bin impertinent if it could have bin done without Law and the Intervention of the Parliament useless if the Kings de facto could have given authority to their own Acts. But if the Parliament could make that to have the effect of Law which was not Law and exempt those that acted according to it from the penalties of the Law and give the same force to the Acts of one who is not King as of one who is they cannot but have a power of making him to be King who is not so that is to say all depends intirely upon their Authority Besides he is not King who assumes the title to himself or is set up by a corrupt party but he who according to the usages required in the case is made King If these are wanting he is neither de facto nor de jure but Tyrannus sine titulo Nevertheless this very man if he comes to be received by the People and placed in the Throne he is thereby made King de facto His Acts are valid in Law the same service is due to him as to any other they who render it are in the same manner protected by the Law that is to say he is truly King If our Author therefore do allow such to be Kings he must confess that power to be good which makes them so when they have no right in themselves If he deny it he must not only deny that there is any such thing as a King de facto which the Statute acknowledges but that we ever had any King in England for we never had any other than such as I have proved before By the same means he will so unravel all the Law that no man shall know what he has or what he ought to do or avoid and will find no
is established over all and no Limits can be set to the Power of the Person that manages it This is the Prerogative or as another Author of the same stamp calls it The Royal Charter granted to Kings by God They all have an equal right to it Women and Children are Patriarchs and the next in Blood without any regard to Age Sex or other Qualities of the Mind or Body are Fathers of as many Nations as fall under their power We are not to examine whether he or she be young or old virtuous or vicious sober minded or stark mad the Right and Power is the same in all Whether Virtue be exalted or suppressed whether he that bears the Sword be a Praise to those that do well and a Terror to those that do evil or a Praise to those that do evil and a Terror to such as do well it concerns us not for the King must not lose his Right nor have his Power diminished on any account I have bin sometimes apt to wonder how things of this nature could enter into the head of any Man Or if no wickedness or folly be so great but some may fall into it I could not well conceive why they should publish it to the World But these thoughts ceased when I considered that a People from all Ages in love with Liberty and desirous to maintain their own Privileges could never be brought to resign them unless they were made to believe that in Conscience they ought to do it which could not be unless they were also perswaded to believe that there was a Law set to all Mankind which none might transgress and which put the examination of all those Matters out of their power This is our Author's Work By this it will appear whose Throne he seeks to advance and whose Servant he is whilst he pretends to serve the King And that it may be evident he hath made use of Means sutable to the Ends proposed for the Service of his great Master I hope to shew that he hath not used one Argument that is not false nor cited one Author whom he hath not perverted and abused Whilst my work is so to lay open these Snares that the most simple may not be taken in them I shall not examin how Sir Robert came to think himself a Man fit to undertake so great a work as to destroy the principles which from the beginning seem to have bin common to all Mankind but only weighing the Positions and Arguments that he alledgeth will if there be either truth or strength in them confess the discovery comes from him that gave us least reason to expect it and that in spight of the Antients there is not in the world a piece of Wood out of which a Mercury may not be made SECT II. The common Notions of Liberty are not from School Divines but from Nature IN the first lines of his Book he seems to denounce War against Mankind endeavouring to overthrow the principle of Liberty in which God created us and which includes the chief advantages of the life we enjoy as well as the greatest helps towards the felicity that is the end of our hopes in the other To this end he absurdly imputes to the School Divines that which was taken up by them as a common notion written in the heart of every Man denied by none but such as were degenerated into Beasts from whence they might prove such Points as of themselves were less evident Thus did Euclid lay down certain Axioms which none could deny that did not renounce common Sense from whence he drew the proofs of such Propositions as were less obvious to the Understanding and they may with as much reason be accused of Paganism who say that the whole is greater than a part that two halfs make the whole or that a streight Line is the shortest way from Point to Point as to say that they who in Politicks lay such Foundations as have been taken up by Schoolmen and others as undeniable Truths do therefore follow them or have any regard to their Authority Tho the Schoolmen were corrupt they were neither stupid nor unlearned They could not but see that which all men saw nor lay more approved Foundations than That Man is naturally free That he cannot justly be deprived of that Liberty without cause and that he doth not resign it or any part of it unless it be in consideration of a greater good which he proposes to himself But if he doth unjustly impute the invention of this to School Divines he in some measure repairs his Fault in saying This hath been fostered by all succeeding Papists for good Divinity The Divines of the Reformed Churches have entertained it and the Common People every where tenderly embrace it That is to say all Christian Divines whether Reformed or Unreformed do approve it and the People every where magnify it as the height of human felicity But Filmer and such as are like to him being neither Reformed nor Unreformed Christians nor of the People can have no title to Christianity and in as much as they set themselves against that which is the height of human Felicity they declare themselves Enemies to all that are concern'd in it that is to all Mankind But says he They do not remember that the desire of Liberty was the first cause of the fall of Man and I desire it may not be forgotten that the Liberty asserted is not a Licentiousness of doing what is pleasing to every one against the command of God but an exemption from all human Laws to which they have not given their assent If he would make us believe there was any thing of this in Adam's Sin he ought to have proved that the Law which he transgressed was imposed upon him by Man and consequently that there was a Man to impose it for it will easily appear that neither the Reformed or Unreformed Divines nor the People following them do place the felicity of Man in an exemption from the Laws of God but in a most perfect conformity to them Our Saviour taught us not to fear such as could kill the Body but him that could kill and cast into Hell And the Apostle tells us that we should obey God rather than Man It hath bin ever hereupon observed that they who most precisely adhere to the Laws of God are least sollicitous concerning the commands of men unless they are well grounded and those who most delight in the glorious Liberty of the Sons of God do not only subject themselves to him but are most regular observers of the just Ordinances of Man made by the consent of such as are concerned according to the Will of God The error of not observing this may perhaps deserve to be pardoned in a Man that had read no Books as proceeding from ignorance if such as are grosly ignorant can be excused when they take upon them to write of such matters as require the highest knowledg But
retain it in themselves But whether that were observed or not by Bellarmin makes nothing to our Cause which we defend and not him The next Point is subtile and he thinks thereby to have brought Bellarmin and such as agree with his Principle to a Nonplus He doubts who shall judg of the lawful Cause of changing the Government and says It is a pestilent Conclusion to place that Power in the Multitude But why should this be esteemed pestilent or to whom If the allowance of such a Power to the Senate was pestilent to Nero it was beneficial to Mankind and the denial of it which would have given to Nero an opportunity of continuing in his Villanies would have been pestilent to the best Men whom he endeavoured to destroy and to all others that received benefit from them But this Question depends upon another for if Governments are constituted for the Pleasure Greatness or Profit of one Man he must not be interrupted for the opposing of his Will is to overthrow the Institution On the other side if the Good of the governed be sought care must be taken that the End be accomplished tho it be with the prejudice of the Governor If the Power be originally in the Multitude and one or more Men to whom the exercise of it or a part of it was committed had no more than their Brethren till it was conferred on him or them it cannot be believed that rational Creatures would advance one or a few of their Equals above themselves unless in consideration of their own Good and then I find no inconvenience in leaving to them a right of judging whether this be duly performed or not We say in general He that institutes may also abrogate most especially when the Institution is not only by but for himself If the Multitude therefore do institute the Multitude may abrogate and they themselves or those who succeed in the same Right can only be fit Judges of the performance of the Ends of the Institution Our Author may perhaps say The publick Peace may be hereby disturbed but he ought to know There can be no Peace where there is no Justice nor any Justice if the Government instituted for the good of a Nation be turned to its ruin But in plain English the Inconvenience with which such as he endeavour to afright us is no more than that He or They to whom the Power is given may be restrained or chastised if they betray their Trust which I presume will displease none but such as would rather submit Rome with the best part of the World depending upon it to the Will of Caligula or Nero than Caligula or Nero to the Judgment of the Senate and People that is rather to expose many great and brave Nations to be destroyed by the rage of a savage Beast than subject that Beast to the Judgment of all or the choicest Men of them who can have no interest to pervert them or other reason to be severe to him than to prevent the Mischiefs he would commit and to save the People from ruin In the next place he recites an Argument of Bellarmin That 't is evident in Scripture God hath ordained Powers but God hath given them to no particular Person because by Nature all Men are equal therefore he hath given Power to the People or Multitude I leave him to untie that Knot if he can but as 't is usual with Impostors he goes about by Surmises to elude the Force of his Argument pretending that in some other place he had contradicted himself and acknowledged that every Man was Prince of his Posterity because that if many Men had bin created together they ought all to have bin Princes of their Posterity But 't is not necessary to argue upon Passages cited from Authors when he that cites them may be justly suspected of Fraud and neither indicates the Place nor Treatise lest it should be detected most especially when we are no way concerned in the Author's Credit I take Bellarmin's first Argument to be strong and if he in some place did contradict it the hurt is only to himself but in this Particular I should not think he did it tho I were sure our Author had faithfully repeated his words for in allowing every Man to be Prince of his Posterity he only says every Man should be chief in his own Family and have a Power over his Children which no man denies But he dos not understand Latin who thinks that the word Princeps doth in any degree signify an absolute Power or a right of transmitting it to his Heirs and Successors upon which the Doctrine of our Author wholly depends On the contrary The same Law that gave to my Father a Power over me gives me the like over my Children and if I had a thousand Brothers each of them would have the same over their Children Bellarmin's first Argument therefore being no way enervated by the alledged Passage I may justly insist upon it and add That God hath not only declared in Scripture but written on the Heart of every Man that as it is better to be clothed than to go naked to live in a House than to lie in the Fields to be defended by the united Force of a Multitude than to place the hopes of his Security solely in his own strength and to prefer the Benefits of Society before a savage and barbarous Solitude He also taught them to frame such Societies and to establish such Laws as were necessary to preserve them And we may as reasonably affirm that Mankind is for ever obliged to use no other Clothes than leather Breeches like Adam to live in hollow Trees and eat Acorns or to seek after the Model of his House for a Habitation and to use no Arms except such as were known to the Patriarchs as to think all Nations for ever obliged to be governed as they governed their Families This I take to be the genuine sense of the Scripture and the most respectful way of interpreting the Places relating to our purpose 'T is hard to imagine that God who hath left all things to our choice that are not evil in themselves should tie us up in this and utterly incredible that he should impose upon us a necessity of following his Will without declaring it to us Instead of constituting a Government over his People consisting of many Parts which we take to be a Model fit to be imitated by others he might have declared in a word That the eldest Man of the eldest Line should be King and that his Will ought to be their Law This had bin more sutable to the Goodness and Mercy of God than to leave us in a dark Labyrinth full of Precipices or rather to make the Government given to his own People a false Light to lead us to destruction This could not be avoided if there were such a thing as our Author calls a Lord Paramount over his Childrens Children to all
from the ardency of a paternal Affection When Nero by the death of Helvidius Priscus and Thraseas endeavoured to cut up Vertue by the roots ipsam exscindere virtutem he did it because he knew it was good for the World that there should be no vertuous man in it When he fired the City and when Caligula wished the People had but one Neck that he might strike it off at one blow they did it through a prudent care of their Childrens good knowing that it would be for their advantage to be destroyed and that the empty desolated World would be no more troubled with popular Seditions By the same rule Pharaoh Eglon Nabuchodonosor Antiochus Herod and the like were Fathers of the Hebrews And without looking far backward or depending upon the Faith of History we may enumerate many Princes who in a paternal care of their People have not yielded to Nero or Caligula If our Author say true all those Actions of theirs which we have ever attributed to the utmost excess of Pride Cruelty Avarice and Perfidiousness proceeded from their princely Wisdom and fatherly Kindness to the Nations under them and we are beholden to him for the discovery of so great a Mystery which hath bin hid from mankind from the beginning of the World to this day if not we may still look upon them as Children of the Devil and continue to believe that Princes as well as other Magistrates were set up by the People for the publick Good that the Praises given to such as are Wise Just and Good are purely personal and can belong only to those who by a due exercise of their Power do deserve it and to no others CHAP. II. SECT I. That 't is natural for Nations to govern or to chuse Governors and that Vertue only gives a natural preference of one man above another or reason why one should be chosen rather than another IN this Chapter our Author fights valiantly against Bellarmin and Suarez seeming to think himself victorious if he can shew that either of them hath contradicted the other or himself but being no way concerned in them I shall leave their followers to defend their Quarrel My work is to seek after Truth and tho they may have said some things in matters not concerning their beloved Cause of Popery that are agreeable to Reason Law or Scripture I have little hope of finding it among those who apply themselves chiefly to School-Sophistry as the best means to support Idolatry That which I maintain is the Cause of Mankind which ought not to suffer tho Champions of corrupt Principles have weakly defended or maliciously betraid it and therefore not at all relying on their Authority I intend to reject whatsoever they say that agrees not with Reason Scripture or the approved Examples of the best polished Nations He also attacks Plato and Aristotle upon whose Opinions I set a far greater value in as much as they seem to have penetrated more deeply into the secrets of human Nature and not only to have judged more rightly of the Interests of Mankind but also to have comprehended in their Writings the Wisdom of the Grecians with all that they had learnt from the Phaenicians Egyptians and Hebrews which may lead us to the discovery of the Truth we seek If this be our work the question is not whether it be a Paradox or a received Opinion That People naturally govern or chuse Governors but whether it be true or not for many Paradoxes are true and the most gross Errors have often bin most common Tho I hope to prove that what he calls a Paradox is not only true but a Truth planted in the hearts of men and acknowledged so to be by all that have hearkned to the voice of Nature and disapproved by none but such as through wickedness stupidity or baseness of Spirit seem to have degenerated into the worst of beasts and to have retained nothing of men but the outward shape or the ability of doing those mischiefs which they have learnt from their Master the Devil We have already seen that the Patriarchical Power resembles not the Regal in principle or practice that the beginning and continuance of Regal Power was contrary to and inconsistent with the Patriarchical that the first Fathers of mankind left all their Children independent on each other and in an equal liberty of providing for themselves that every man continued in this liberty till the number so increased that they became troublesom and dangerous to each other and finding no other remedy to the disorders growing or like to grow among them joined many Families into one civil Body that they might the better provide for the conveniency safety and defence of themselves and their Children This was a collation of every man's private Right into a publick Stock and no one having any other right than what was common to all except it were that of Fathers over their Children they were all equally free when their Fathers were dead and nothing could induce them to join and lessen that natural liberty by joining in Societies but the hopes of a publick Advantage Such as were wise and valiant procured it by setting up regular Governments and placing the best Men in the administration whilst the weakest and basest fell under the power of the most boisterous and violent of their Neighbours Those of the first sort had their root in Wisdom and Justice and are called lawful Kingdoms or Commonwealths and the Rules by which they are governed are known by the name of Laws These Governments have ever bin the Nurses of Vertue The Nations living under them have flourished in Peace and Happiness or made Wars with Glory and Advantage whereas the other sort springing from Violence and Wrong have ever gone under the odious title of Tyrannies and by fomenting Vices like to those from whence they grew have brought shame and misery upon those who were subject to them This appears so plainly in Scripture that the assertors of Liberty want no other Patron than God himself and his Word so fully justifies what we contend for that it were not necessary to make use of human Authority if our Adversaries did not oblige us to examine such as are cited by them This in our present case would be an easy work if our Author had rightly marked the passages he would make use of or had bin faithful in his Interpretation or Explication of such as he truly cites but failing grosly in both 't is hard to trace him He cites the 16th Chapter of the third Book of Aristotle's Politicks and I do not find there is more than twelve or tho that Wound might be cured by saying the Words are in the twelfth his Fraud in perverting the Sense were unpardonable tho the other mistake be passed over 'T is true that Aristotle doth there seem to doubt whether there be any such thing as one man naturally a Lord over many Citizens since a City consists of Equals but
destroyed the Kingdoms of Asia Egypt Macedon Numidia and a multitude of others was made a Prey to unknown barbarous Nations and rent into as many pieces as it had bin composed of when it enjoy'd the Stability that accompanies Divine and Absolute Monarchy The like may be said of all the Kingdoms in the World they may have their ebbings and flowings according to the Vertues or Vices of Princes or their Favorites but can never have any Stability because there is and can be none in them Or if any Exception may be brought against this Rule it must be of those Monarchies only which are mixed and regulated by Laws where Diets Parliaments Assemblies of Estates or Senats may supply the defects of a Prince restrain him if he prove extravagant and reject such as are found to be unworthy of their Office which are as odious to our Author and his Followers as the most popular Governments and can be of no advantage to his cause There is another ground of perpetual Fluctuation in Absolute Monarchies or such as are grown so strong that they cannot be restrained by Law tho according to their Institution they ought to be distinct from but in some measure relating to the Inclinations of the Monarch that is the impulse of Ministers Favorites Wives or Whores who frequently govern all things according to their own Passions or Interests And tho we cannot say who were the Favorites of every one of the Assyrian or Egyptian Kings yet the Examples before-mentioned of the different method follow'd in Egypt before and after the death of Joseph and in Persia whilst the idolatrous Princes and Haman or Daniel Esther and Mordecai were in credit the violent Changes happening thereupon give us reason to believe the like were in the times of other Kings and if we examine the Histories of later Ages and the Lives of Princes that are more exactly known we shall find that Kingdoms are more frequently swayed by those who have Power with the Prince than by his own Judgment So that whosoever hath to deal with Princes concerning Foreign or Domestick Affairs is obliged more to regard the humour of those Persons than the most important Interests of a Prince or People I might draw too much envy upon my self if I should take upon me to cite all the Examples of this kind that are found in modern Histories or the Memoirs that do more precisely shew the Temper of Princes and the secret Springs by which they were moved But as those who have well observed the management of Affairs in France during the Reigns of Francis the First Henry the Second Francis the Second Charles the Ninth Henry the Third Henry the Fourth and Lewis the Thirteenth will confess that the Interests of the Dukes of Montmorency and Guise Queen Katherine de Medicis the Duke of Epernon La Fosseuse Madame de Guiche de Gabriele d' Entragues the Marechal d' Ancre the Constable de Luines and the Cardinal de Richelieu were more to be consider'd by those who had any private or publick Business to treat at Court than the Opinions of those Princes or the most weighty Concernments of the State so it cannot be denied that other Kingdoms where Princes legally have or wrongfully usurp the like Power are governed in the like manner or if it be there is hardly any Prince's Reign that will not furnish abundant proof of what I have asserted I agree with our Author that good Order and Stability produce Strength If Monarchy therefore excel in them Absolute Monarchies should be of more strength than those that are limited according to the proportion of their Riches extent of Territory and number of People that they govern and those limited Monarchies in the like proportion more strong than popular Governments or Commonwealths If this be so I wonder how a few of those giddy Greeks who according to our Author had learning enough only to make them seditious came to overthrow those vast Armies of the Persians as often as they met with them and seldom found any other difficulty than what did arise from their own Countrymen who sometimes sided with the Barbarians Seditions are often raised by a little prating but when one Man was to fight against fifty or a hundred as at the Battels of Salamine Platea Marathon and others then Industry Wisdom Skill and Valour was required and if their Learning had not made them to excel in those Vertues they must have bin overwhelmed by the prodigious multitudes of their Enemies This was so well known to the Persians that when Cyrus the younger prepar'd to invade his Brother Artaxerxes he brought together indeed a vast Army of Asiaticks but chiefly relied upon the Counsel and Valour of ten thousand Grecians whom he had engaged to serve him These giddy heads accompanied with good hands in the great Battel near Babylon found no resistance from Artaxerxes his Army and when Cyrus was killed by accident in the pursuit of the Victory they had gained and their own Officers treacherously murder'd they made good their retreat into Greece under the conduct of Xenophon in despite of above four hundred thousand Horse and Foot who endeavour'd to oppose them They were destitute of Horse Mony Provisions Friends and all other help except what their Wisdom and Valour furnished them and thereupon relying they passed over the Bellies of all the Enemies that ventur'd to appear against them in a march of a thousand miles These things were performed in the weakness of popular confusion but Agesilaus not being sensible of so great defects accompanied only with six and thirty Spartans and such other Forces as he could raife upon his personal credit adventured without Authority or Mony to undertake a War against that great King Artaxerxes and having often beaten Pharnabazus and Tissaphernes his Lieutenants was preparing to assault him in the heart of his Kingdom when he was commanded by the Ephori to return for the defence of his own Country It may in like manner appear strange that Alexander with the Forces of Greece much diminished by the Phocean Peloponnesian Theban and other intestine Wars could overthrow all the powers of the East and conquer more Provinces than any other Army ever saw if so much order and stability were to be found in absolute Monarchies and if the Liberty in which the Grecians were educated did only fit them for Seditions and it would seem no less astonishing that Rome and Greece whilst they were free should furnish such numbers of men excelling in all moral Vertues to the admiration of all succeeding Ages and thereby become so powerful that no Monarchs were able to resist them and that the same Countries since the loss of their Liberty have always bin weak base cowardly and vicious if the same Liberty had not bin the Mother and Nurse of their Vertue as well as the root of their Power It cannot be said that Alexander was a Monarch in our Author's sense for the power
eminency in that Kingdom with the Cities of Paris Bourdeaux and many others in the space of these last fifty years have sided with the perpetual Enemies of their own Country Again other great Alterations have happened within the same Kingdom The Races of Kings four times wholly changed Five Kings deposed in less than 150 Years after the death of Charles the Great The Offices of Maire du Palais and Constable erected and laid aside The great Dukedoms and Earldoms little inferior to Soveraign Principalities establish'd and suppress'd The decision of all Causes and the execution of the Laws placed absolutely in the hands of the Nobility their Deputies Seneschals or Vice-Seneschals and taken from them again Parliaments set up to receive Appeals from the other Courts and to judg soveraignly in all cases expresly to curb them The Power of these Parliaments after they had crushed the Nobility brought so low that within the last twenty years they are made to register and give the Power of Laws to Edicts of which the Titles only are read to them and the General Assemblies of Estates that from the time of Pepin had the Power of the Nation in their hands are now brought to nothing and almost forgotten Tho I mention these things 't is not with a design of blaming them for some of them deserve it not and it ought to be consider'd that the Wisdom of man is imperfect and unable to foresee the Effects that may proceed from an infinite variety of Accidents which according to Emergencies necessarily require new Constitutions to prevent or cure the mischiefs arising from them or to advance a good that at the first was not thought on And as the noblest work in which the Wit of man can be exercised were if it could be done to constitute a Government that should last for ever the next to that is to sute Laws to present Exigencies and so much as is in the power of man to foresee And he that should resolve to persist obstinately in the way he first entered upon or to blame those who go out of that in which their Fathers had walked when they find it necessary dos as far as in him lies render the worst of Errors perpetual Changes therefore are unavoidable and the Wit of man can go no farther than to institute such as in relation to the Forces Manners Nature Religion or Interests of a People and their Neighbours are sutable and adequate to what is seen or apprehended to be seen And he who would oblige all Nations at all times to take the same course would prove as foolish as a Physician who should apply the same Medicine to all Distempers or an Architect that would build the same kind of House for all Persons without considering their Estates Dignities the number of their Children or Servants the Time or Climate in which they live and many other Circumstances or which is if possible more sottish a General who should obstinately resolve always to make War in the same way and to draw up his Army in the same form without examining the nature number and strength of his own and his Enemies Forces or the advantages and disadvantages of the Ground But as there may be some universal Rules in Physick Architecture and Military Discipline from which men ought never to depart so there are some in Politicks also which ought always to be observed and wise Legislators adhering to them only will be ready to change all others as occasion may require in order to the publick Good This we may learn from Moses who laying the Foundation of the Law given to the Israelites in that Justice Charity and Truth which having its root in God is subject to no change left them the liberty of having Judges or no Judges Kings or no Kings or to give the Soveraign Power to High Priests or Captains as best pleased themselves and the Mischiefs they afterwards suffer'd proceeded not simply from changing but changing for the worse The like judgment may be made of the Alterations that have happen'd in other places They who aim at the publick Good and wisely institute Means proportionable and adequate to the attainment of it deserve praise and those only are to be dislik'd who either foolishly or maliciously set up a corrupt private Interest in one or a few men Whosoever therefore would judg of the Roman Changes may see that in expelling the Tarquins creating Consuls abating the violence of Usurers admitting Plebeians to marry with the Patricians rendring them capable of Magistracies deducing Colonies dividing Lands gained from their Enemies erecting Tribunes to defend the Rights of the Commons appointing the Decemviri to regulate the Law and abrogating their Power when they abused it creating Dictators and Military Tribunes with a Consular Power as occasions requir'd they acted in the face of the Sun for the good of the Publick and such Acts having always produced Effects sutable to the rectitude of their Intentions they consequently deserve praise But when another Principle began to govern all things were changed in a very different manner Evil Designs tending only to the advancement of private Interests were carried on in the dark by means as wicked as the end If Tarquin when he had a mind to be King poison'd his first Wife and his Brother contracted an incestuous Marriage with his second by the death of her first Husband murder'd her Father and the best men in Rome yet Cesar did worse He favour'd Catiline and his villanous Associates brided and corrupted Magistrates conspir'd with Crassus and Pompey continued in the Command of an Army beyond the time prescribed by Law and turned the Arms with which he had bin entrusted for the service of the Commonwealth to the destruction of it which was rightly represented by his Dream that he had constuprated his Mother In the like manner when Octavius Antonius and Lepidus divided the Empire and then quarrelled among themselves and when Galba Otho Vitellius and Vespasian set up Parties in several Provinces all was managed with Treachery Fraud and Cruelty nothing was intended but the advancement of one Man and the Recompence of the Villains that served him And when the Empire had suffered infinite Calamities by pulling down or rejecting one and setting up another it was for the most part difficult to determine who was the worst of the two or whether the prevailing side had gained or lost by their Victory The question therefore upon which a Judgment may be made to the praise or dispraise of the Roman Government before or after the loss of their Liberty ought not to be Whether either were subject to changes for neither they nor any thing under the Sun was ever exempted from them but whether the Changes that happened after the establishment of Absolute Power in the Emperors did not solely proceed from Ambition and tend to the publick Ruin whereas those Alterations related by our Author concerning Consuls Dictators Decemviri Tribuns and Laws were
some few may have proved better than was intended it will appear that our Author's Assertions are in the utmost degree false Of this we need no better witness than Tacitus The Civil Wars and the Proscriptions upon which he touches are justly to be attributed to that Monarchy which was then setting up the only question being who should be the Monarch when the Liberty was already overthrown And if any eminent men escaped it was much against the will of those who had usurped the power He acknowledges his Histories to be a continued relation of the slaughter of the most illustrious Persons and that in the times of which he writes Virtue was attended with certain destruction After the death of Germanicus and his eldest Children Valerius Asiaticus Seneca Corbulo and an infinite number more who were thought most to resemble them found this to be true at the expence of their lives Nero in pursuance of the same tyrannical design murder'd Helvidius and Thraseas that he might tear up Virtue by the roots Domitian spared none willingly that had either Virtue or Reputation and tho Trajan with perhaps some other might grow up under him in the remote Provinces yet no good man could escape who came under his eye and was so eminent as to be observed by him Whilst these who were thought to be the best men that appear'd in the Roman Empire did thrive in this manner Sejanus Macro Narcissus Pallas Tigillinus Icetus Vinnius Laco and others like to them had the power of the Empire in their hands Therefore unless Mankind has bin mistaken to this day and that these who have hitherto bin accounted the worst of Villains were indeed the best men in the world and that those destroy'd by them who are thought to have bin the best were truly the worst it cannot be denied that the best men during the Liberty of Rome thrived best that good men suffer'd no indignity unless by some fraud imposed upon the well-meaning People and that so soon as the Liberty was subverted the worst men thrived best The best men were exposed to so many Calamities and Snares that it was thought a matter of great wonder to see a virtuous man die in his bed and if the account were well made I think it might appear that every one of the Emperors before Titus shed more noble and innocent Blood than Rome and all the Commonwealths in the world have done whilst they had the free enjoyment of their own Liberty But if any man in favour of our Author seek to diminish this vast disproportion between the two differing sorts of Government and impute the disorders that happen'd in the time of the Gracchi and others whilst Rome was strugling for her Liberty to the Government of a Commonwealth he will find them no more to be compar'd with those that fell out afterwards than the railings of a turbulent Tribune against the Senate to the Villanies and Cruelties that corrupted and dispeopled the Provinces from Babylon to Scotland And whereas the State never fail'd to recover from any disorders as long as the Root of Liberty remain'd untouch'd and became more powerful and glorious than ever even after the Wars of Marius and Sylla when that was destroy'd the City fell into a languishing condition and grew weaker and weaker till that and the whole Empire was ruin'd by the Barbarians 3. Our Author to shew that his memory is as good as his judgment having represented Rome in the times of Liberty as a publick Slaughter-house soon after blames the clemency of their Laws whereas 't is impossible that the same City could at the same time be guilty of those contrary extremities and no less certain that it was perfectly free from them both His assertion seems to be grounded upon Cesar's Speech related by Salust in favour of Lentulus and Cethegus Companions of Catiline but tho he there endeavoured to put the best colour he could upon their cause it signified only thus much that a Roman Citizen could not be put to death without being heard in publick which Law will displease none that in understanding and integrity may not be compared to Filmer and his Followers 'T is a folly to extend it farther for 't is easily proved that there was always a power of putting Citizens to death and that it was exercised when occasion required The Laws were the same in the time of the Kings and when that Office was executed by Consuls excepting such changes as are already mention'd The Lex perduellionis cited by Livy in the case of Horatius who had kill'd his Sister continued in force from the foundation to the end of that Government the condemnation was to death the words of the Sentence these Caput obnubito infelici arbore reste suspendito verberato intra Pomaerium vel extra Pomaerium He was tried by this Law upon an appeal made to the People by his Father and absolved admiratione magis virtutis quam jure causae which could not have bin if by the Law no Citizen might be put to death The Sons of Brutus were condemn'd to death in publick and executed with the Aquilii and Vitellii their Companions in the same Conspiracy Manlius Capitolinus was put to death by the vote of the People Titus Manlius by the command of his Father Torquatus for fighting without order Two Legions were decimated by Appius Claudius Spurius Melius refusing to appear before the Dictator was killed by Servilius Ahala General of the Horse and pronounced jure caesum Quintus Fabius was by Papirius the Dictator condemn'd to die and could not have bin saved but by the intercession and authority of the People If this be not so I desire to be informed what the Senate meant by condemning Nero to be put to death more majorum if more majorum no Citizen might be put to death Why the Consuls Dictators Military Tribuns Decemviri caused Rods and Axes to be carried beforethem as well within as without the City if no use was to be made of them Were they only vain Badges of a Power never to be executed or upon whom was the Supreme Power signified by them to be exercised within and without the City if the Citizens were not subject to it 'T is strange that a man who had ever read a Book of matters relating to the Affairs of Rome should fancy these things or hope to impose them upon the World if he knew them to be foolish false and absurd But of all the marks of a most supine stupidity that can be given by a man I know no one equal to this of our Author who in the same Clause wherein he says no Citizen could be put to death or banished adds that the Magistrates were upon pain of death forbidden to do it for if a Magistrate might be put to death for banishing a Citizen or causing him to be executed a Citizen might be put to death for the Magistrates were not Strangers but Citizens
much as they who have a part cannot but have a right of defending that part Quia data facultate datur jus faculiatem tuendi without which it could be of no effect The particular limits of the Rights belonging to each can only be judged by the precise Letter or general Intention of the Law The Dukes of Venice have certainly a part in the Government and could not be called Magistrates if they had not They are said to be supreme all Laws and publick Acts bear their Names The Ambassador of that State speaking to Pope Paul the 5th denied that he acknowledged any other Superior than God But they are so well known to be under the Power of the Law that divers of them have bin put to death for transgressing it and a marble Gallows is seen at the foot of the stairs in St. Mark 's Palace upon which some of them and no others have bin executed But if they may be duly opposed when they commit undue Acts no man of judgment will deny that if one of them by an outragious Violence should endeavour to overthrow the Law he might by violence be suppressed and chastised Again some Magistrates are entrusted with a power of providing Ships Arms Ammunition and Victuals for War raising and disciplining Soldiers appointing Officers to command in Forts and Garisons and making Leagues with Foreign Princes and States But if one of these should imbezel sell or give to an Enemy those Ships Arms Ammunition or Provisions betray the Forts employ only or principally such men as will serve him in those wicked Actions and contrary to the trust reposed in him make such Leagues with Foreigners as tend to the advancement of his personal Interests and to the detriment of the Publick he abrogates his own Magistracy and the Right he had perishes as the Lawyers say frustratione finis He cannot be protected by the Law which he has overthrown nor obtain impunity for his Crimes from the Authority that was conferred upon him only that he might do good with it He was singulis major on account of the excellence of his Office but universis minor from the nature and end of his institution The surest way of extinguishing his Prerogative was by turning it to the hurt of those who gave it When matters are brought to this posture the Author of the mischief or the Nation must perish A Flock cannot subsist under a Shepherd that seeks its ruin nor a People under an unfaithful Magistrate Honour and Riches are justly heaped upon the heads of those who rightly perform their duty because the difficulty as well as the excellency of the work is great It requires Courage Experience Industry Fidelity and Wisdom The good Shepherd says our Saviour says down his life for his Sheep The Hireling who flies in time of danger is represented under an ill character but he that sets himself to destroy his Flock is a Wolf His Authority is incompatible with their subsistence and whoever disapproves Tumults Seditions or War by which he may be removed from it if gentler means are ineffectual subverts the Foundation of all Law exalts the fury of one man to the destruction of a Nation and giving an irresistible Power to the most abominable Iniquity exposes all that are good to be destroy'd and Virtue to be utterly extinguished Few will allow such a Preeminence to the Dukes of Venice or Genoa the Advoyers of Switzerland or the Burgomasters of Amsterdam Many will say these are Rascals if they prove false and ought rather to be hang'd than suffer'd to accomplish the Villanies they design But if this be confess'd in relation to the highest Magistrates that are among those Nations why should not the same be in all others by what name soever they are called When did God confer upon those Nations the extraordinary privilege of providing better for their own safety than others Or was the Gift universal tho the Benefit accrue only to those who have banished great Titles from among them If this be so 't is not their Felicity but their Wisdom that we ought to admire and imitate But why should any think their Ancestors had not the same care Have not they who retain'd in themselves a Power over a Magistrate of one name the like over another Is there a charm in words or any name of such efficacy that he who receives it should immediately become Master of those that created him whereas all others do remain for ever subject to them Would the Venetian Government change its nature if they should give the name of King to their Prince Are the Polanders less free since the title of King is conferr'd upon their Dukes or are the Moscovites less Slaves because their chief Magistrate has no other than that of Duke If we examine things but a little 't will appear that Magistrates have enjoy'd large Powers who never had the name of Kings and none were ever more restrained by Laws than those of Sparta Arragon the Goths in Spain Hungary Bohemia Sweden Denmark Poland and others who had that Title There is therefore no such thing as a Right universally belonging to a Name but every one enjoys that which the Laws by which he is confer upon him The Law that gives the Power regulates it and they who give no more than what they please cannot be obliged to suffer him to whom they give it to take more than they thought fit to give or to go unpunished if he do The Agreements made are always confirmed by Oath and the treachery of violating them is consequently aggravated by Perjury They are good Philosophers and able Divines who think this can create a Right to those who had none or that the Laws can be a protection to such as overthrow them and give opportunity of doing the mischiefs they design If it do not then he that was a Magistrate by such actions returns into the condition of a private man and whatever is lawful against a Thief who submits to no Law is lawful against him Men who delight in cavils may ask Who shall be the Judg of these occasions and whether I intend to give to the People the decision of their own Cause To which I answer that when the Contest is between the Magistrate and the People the party to which the determination is referred must be the Judg of his own case and the question is only Whether the Magistrate should depend upon the Judgment of the People or the People on that of the Magistrate and which is most to be suspected of injustice That is whether the people of Rome should judg Tarquin or Tarquin judg the people He that knew all good men abhorred him for the murder of his Wife Brother Father-in-law and the best of the Senate would certainly strike off the heads of the most eminent remaining Poppies and having incurr'd the general hatred of the people by the wickedness of his Government he seared revenge and endeavouring to
put the whole Nation into blood Absalom with a few fair words was able to raise all Israel against his Father Sheba the Son of Bichri with as much ease raised a more dangerous Tumult David by Wisdom Valour and the blessing of God surmounted these difficulties and prepared a peaceable Reign for Solomon but after his death they broke out into a Flame that was never quenched till the Nation was so dispersed that no man knew where to find his Enemies Solomon by his Magnificence had reduced Israel to such poverty as inclined them to revolt upon the first offer of an opportunity by Jeroboam From that time forward Israel was perpetually vexed with Civil Seditions and Conspiracies or Wars with their Brethren of Judah Nine Kings with their Families were destroyed by the first and the latter brought such Slaughters upon the miserable People as were never suffer'd by any who were not agitated by the like Fury and the course of these mischiefs was never interrupted till they had brought the Nation into Captivity and the Country to Desolation Tho God according to his promise did preserve a light in the House of David yet the Tribe of Judah was not the more happy Joash was slain by a private Conspiracy and Amaziah as is most probable by publick Authority for having foolishly brought a terrible Slaughter upon Judah Athaliah destroyed the King's Race and was killed her self by Jehoiada who not having learnt from our Author to regard the Power only and not the ways by which it was obtained caused her to be dragg'd out of the Temple and put to a well-deserved Death The whole Story is a Tragedy and if it be pretended that this proceeded rather from the wrath of God against his People for their Idolatry than from such causes as are applicable to other Nations I answer that this Idolatry was the production of the Government they had set up and most sutable to it and chusing rather to subject themselves to the Will of a man than to the Law of God they deservedly suffer'd the evils that naturally follow the worst Counsels We know of none who taking the like course have not suffer'd the like miseries Notwithstanding the admirable Virtue and Success of Alexander his Reign was full of Conspiracies and his knowledg of them prompted him to destroy Parmenio Philotas Clitus Calisthenes Hermolaus and many more of his best Friends If he escaped the Sword he fell by Poison The Murder of his Wives Mother and Children by the rage of his own Soldiers the Fury of his Captains imployed in mutual Slaughters till they were consumed his paternal Kingdom after many Revolutions transferred to Cassander his most mortal Enemy the utter extinction of his conquering Army and particularly the famous Argyraspides who being grown faithless and seditious after the death of Eumenes were sent to perish in unknown parts of the East abundantly testify the admirable stability good order peace and quiet that is enjoy'd under absolute Monarchy The next Government of the like nature that appeared upon the stage of the World was that of Rome introduced by Wars that consumed two thirds of the People confirmed by Proscriptions in which all that were eminent for Nobility Riches or Virtue perished The peace they had under Augustus was like that which the Devil allow'd to the Child in the Gospel whom he rent sorely and left as dead The miserable City was only cast into a Swound after long and violent vexations by Seditions Tumults and Wars it lay as dead and finding no helper like to him who cured the Child it was delivered to new Devils to be tormented till it was utterly destroy'd Tiberius was appointed as a fit instrument for such a purpose It was thought that those who should seel the effects of his Pride Cruelty and Lust would look upon the Death of Augustus as a loss He performed the work for which he was chosen his Reign was an uninterrupted Series of Murders Subornations Perjuries and Poisonings intermixed with the most detestable Impurities the revolts of Provinces and Mutinies of Armies The matter was not mended by his Successors Caligula was kill'd by his own Guards Claudius poison'd by his Wife Spain Gaul Germany Pannonia Maesia Syria and AEgypt revolted at once from Nero the People and Senate followed the example of the Provinces This I think was in our Author's sense Sedition with a witness Nero being dead by the hand of a Slave or his own to prevent that of the Hangman Galba enter'd the City with Blood and Slaughter but when his own Soldiers found he would not give the Mony for which they intended to sell the Empire they killed him and to shew the stability of absolute Monarchy it may be observed that this was not done by the advice of the Senate or by a conspiracy of great men Suscepére duo manipulares Populi Romani Imperium transferendum transtulerunt Two Rascals gave the Empire to Otho and the whole Senate was like to be butcher'd for not being so ready to follow their venerable Authority as they ought to have bin and hardly escaped the fury of their mad and drunken Companions As a farther testimony that these Monarchies are not subject to Seditions and Tumults he had at once only two Competitors against whom he was to defend the well-acquired Empire His Army was defeated at Brescia he kill'd himself and his Successor Vitellius was soon after thrown into the Common Shore The same method still continued Rome was fill'd with Blood and Ashes and to recite all the publick Mischiefs would be to transcribe the History For as Pyrrhus being asked who should succeed him answered He who has the sharpest Sword that was the only Law that governed in the following ages Whoever could corrupt two or three Legions thought he had a good title to the Empire and unless he happen'd to be kill'd by Treachery or another Tumult of his own Soldiers he seldom receded from it without a Battel wherein he that was most successful had no other security than what the present temper of the Soldiers afforded him and the miserable Provinces having neither Virtue nor Force were obliged slavishly to follow the fury or fortune of those Villains In this state did Rome dedicate to Constantine the Triumphal Arch that had bin prepared for Maxentius and those Provinces which had set up Albinus and Niger submitted to Septimius Severus In the vast variety of Accidents that in those Ages disturbed the World no Emperor had a better title than what he purchased by Mony or Violence and enjoyed it no longer than those helps continued which of all things were the most uncertain By this means most of the Princes perished by the Sword Italy was made desolate and Rome was several times sackt and burnt The Mistress of the World being made a Slave the Provinces which had bin acquir'd by the Blood of her antient virtuous Citizens became part of an Usurper's Patrimony who without
no Power but what is given by the Laws If this be not the case I desire to know who made the Laws to which they and their Predecessors have sworn and whether they can according to their own will abrogate those antient Laws by which they are made to be what they are and by which we enjoy what we have or whether they can make new Laws by their own Power If no man but our Author have impudence enough to assert any such thing and if all the Kings we ever had except Richard the second did renounce it we may conclude that Austin's words have no relation to our dispute and that 't were to no purpose to examine whether the Fathers mention any reservation of Power to the Laws of the Land or to the People it being as lawful for all Nations if they think fit to frame Governments different from those that were then in being as to build Bastions Halfmoons Hornworks Ravelins or Counterscarps or to make use of Muskets Cannon Mortars Carabines or Pistols which were unknown to them What Solomon says of the Hebrew Kings dos as little concern us We have already proved their Power not to have bin absolute tho greater than that which the Law allows to ours It might upon occasion be a prudent advice to private persons living under such Governments as were usual in the Eastern Countries to keep the King's Commandments and not to say What dost thou because where the Word of a King is there is Power and all that he pleaseth he will do But all these words are not his and those that are must not be taken in a general sense for tho his Son was a King yet in his words there was no power He could not do what he pleased nor hinder others from doing what they pleased He would have added weight to the Yoak that lay upon the necks of the Israelites but he could not and we do not find him to have bin master of much more than his own Tongue to speak as many foolish things as he pleased In other things whether he had to deal with his own people or with strangers he was weak and impotent and the wretches who flatter'd him in his follies could be of no help to him The like has befallen many others Those who are wise virtuous valiant just and lovers of their People have and ought to have Power but such as are lewd vicious foolish and haters of their People ought to have none and are often deprived of all This was well known to Solomon who says That a wise Child is better than an old and foolish King that will not be advised When Nabuchodonosor set himself in the place of God his Kingdom was taken from him and he was driven from the society of men to herd with beasts There was Power for a time in the word of Nero he murdered many excellent men but he was call'd to account and the World abandon'd the Monster it had too long endur'd He found none to defend him nor any better help when he desir'd to die than the hand of a Slave Besides this some Kings by their Institution have little Power some have bin deprived of what they had for abusing or rendring themselves unworthy of it and Histories afford us innumerable examples of both sorts But tho I should confess that there is always Power in the word of a King it would be nothing to us who dispute concerning Right and have no regard to that Power which is void of it A Thief or a Pyrat may have Power but that avails him not when as often befel the Cesars he meets with one who has more and is always unsafe since having no effect upon the Consciences of men every one may destroy him that can And I leave it to Kings to consider how much they stand obliged to those who placing their Rights upon the same foot expose their Persons to the same dangers But if Kings desire that in their Word there should be power let them take care that it be always accompanied with Truth and Justice Let them seek the good of their People and the hands of all good men will be with them Let them not exalt themselves insolently and every one will desire to exalt them Let them acknowledg themselves to be the Servants of the Publick and all men will be theirs Let such as are most addicted to them talk no more of Cesars nor the Tributes due to them We have nothing to do with the name of Cesar. They who at this day live under it reject the Prerogatives antiently usurped by those that had it and are govern'd by no other Laws than their own We know no Law to which we owe obedience but that of God and our selves Asiatick Slaves usually pay such Tributes as are imposed upon them and whilst braver Nations lay under the Roman Tyranny they were forced to submit to the same burdens But even those Tributes were paid for maintaining Armies Fleets and Garisons without which the poor and abject life they led could not have bin preserved We owe none but what we freely give None is or can be imposed upon us unless by our selves We measure our Grants according to our own Will or the present occasions for our own safety Our Ancestors were born free and as the best provision they could make for us they left us that Liberty intire with the best Laws they could devise to defend it 'T is no way impair'd by the Opinions of the Fathers The words of Solomon do rather confirm it The happiness of those who enjoy the like and the shameful misery they lie under who have suffer'd themselves to be forced or cheated out of it may perswade and the justice of the Cause encourage us to think nothing too dear to be hazarded in the defence of it SECT IX Our own Laws confirm to us the enjoyment of our native Rights IF that which our Author calls Divinity did reach the things in dispute between us or that the Opinions of the Fathers which he alledges related to them he might have spared the pains of examining our Laws for a municipal Sanction were of little force to confirm a perpetual and universal Law given by God to mankind and of no value against it since man cannot abrogate what God hath instituted nor one Nation free it self from a Law that is given to all But having abused the Scriptures and the Writings of the Fathers whose Opinions are to be valued only so far as they rightly interpret them he seems desirous to try whether he can as well put a false sense upon our Law and has fully compassed his design Aocording to his custom he takes pieces of passages from good Books and turns them directly against the plain meaning of the Authors expressed in the whole scope and design of their Writings To show that he intends to spare none he is not ashamed to cite Bracton who of all our antient Law-writers is
continue in any If the Power be not conferred upon them they have it not and if they have it not their want of leisure to do Justice cannot have bin the cause for which Laws are made and they cannot be the signification of their Will but are that to which the Prince ows Obedience as well as the meanest Subject This is that which Bracton calls esse sub lege and says that Rex in regno superiores habet Deum Legem Fortescue says The Kings of England cannot change the Laws and indeed they are so far from having any such Power that the Judges swear to have no regard to the King's Letters or Commands but if they receive any to proceed according to Law as if they had not bin And the breach of this Oath dos not only bring a blemish upon their Reputation but exposes them to capital Punishments as many of them have found 'T is not therefore the King that makes the Law but the Law that makes the King It gives the rule for Succession making Kingdoms sometimes Hereditary and sometimes Elective and more often than either simply Hereditary under condition In some places Males only are capable of inheriting in others Females are admitted Where the Monarchy is regular as in Germany England c. the Kings can neither make nor change Laws They are under the Law and the Law is not under them their Letters or Commands are not to be regarded In the administration of Justice the question is not what pleases them but what the Law declares to be right which must have its course whether the King be busy or at leisure whether he will or not The King who never dies is always present in the supreme Courts and neither knows nor regards the pleasure of the man that wears the Crown But lest he by his Riches and Power might have some influence upon judicial Proceedings the great Charter that recapitulates and acknowledges our antient inherent Liberties obliges him to swear that he will neither sell delay nor deny Justice to any man according to the Laws of the Land which were ridiculous and absurd if those Laws were only the signification of his Pleasure or any way depended upon his Will This Charter having bin confirmed by more than thirty Parliaments all succeeding Kings are under the obligation of the same Oath or must renounce the benefit they receive from our Laws which if they do they will be found to be equal to every one of us Our Author according to his custom having laid down a false proposition gos about to justify it by false examples as those of Draco Solon the Decemviri and Moses of whom no one had the Power he attributes to them and it were nothing to us if they had The Athenians and Romans as was said before were so far from resigning the absolute Power without appeal to themselves that nothing done by their Magistrates was of any force till it was enacted by the People And the power given to the Decemviri sine provocatione was only in private cases there being no superior Magistrate then in being to whom Appeals could be made They were vested with the same Power the Kings and Dictators enjoy'd from whom there lay no Appeal but to the People and always to them as appears by the case of Horatius in the time of Tullus Hostilius that of Marcus Fabius when Papirius Cursor was Dictator and of Nenius the Tribun during that of Q. Fabius Maximus all which I have cited already and reser to them There was therefore a reservation of the supreme Power in the People notwithstanding the creation of Magistrates without Appeal and as it was quietly exercised in making Strangers or whom they pleased Kings restraining the power of Dictators to six months and that of the Decemviri to two years when the last did contrary to Law endeavour by force to continue their Power the People did by force destroy it and them The case of Moses is yet more clear he was the most humble and gentle of all men he never raised his heart above his brethren and commanded Kings to live in the same modesty he never desired the People should depend upon his will In giving Laws to them he fulfill'd the will of God not his own and those Laws were not the signification of his will but of the will of God They were the production of God's Wisdom and Goodness not the invention of Man given to purify the People not to advance the glory of their Leader He was not proud and insolent nor pleas'd with that ostentation of Pomp to which fools give the name of Majesty and whoever so far exalts the power of a man to make Nations depend upon his pleasure dos not only lay a burden upon him which neither Moses nor any other could ever bear and every wise man will always abhor but with an impious fury endeavours to set up a Government contrary to the Laws of God presumes to accuse him of want of wisdom or goodness to his own People and to correct his Errors which is a work fit to be undertaken by such as our Author From hence as upon a solid foundation he proceeds and making use of King James's words infers that Kings are above the Laws because he so teaches us But he might have remembred that having affirmed the People could not judg of the disputes that might happen between them and Kings because they must not be judges in their own case 't is absurd to make a King judg of a case so nearly concerning himself in the decision of which his own Passions and Interests may probably lead him into errors And if it be pretended that I do the same in giving the judgment of those matters to the People the case is utterly different both in the nature and consequences The King's judgment is merely for himself and if that were to take place all the Passions and Vices that have most power upon men would concur to corrupt it He that is set up for the publick good can have no contest with the whole People whose good he is to procure unless he deflect from the end of his Institution and set up an interest of his own in opposition to it This is in its nature the highest of all delinquencies and if such a one may be judg of his own crimes he is not only sure to avoid punishment but to obtain all that he sought by them and the worse he is the more violent will his desires be to get all the power into his hands that he may gratify his lusts and execute his pernicious designs On the other side in a popular Assembly no man judges for himself otherwise than as his good is comprehended in that of the publick Nothing hurts him but what is prejudicial to the Commonwealth such amongst them as may have received private Injuries are so far only considered by others as their Sufferings may have influence upon the
is instituted for the good of those that are under it 'T is therefore for them that he enjoys it and it can no otherwise subsist than in concurrence with that end He also yields that the safety of the People is the supreme Law The right therefore that the King has must be conformable and subordinate to it If any one therefore set up an interest in himself that is not so he breaks this supreme Law he doth not live and reign for his People but for himself and by departing from the end of his institution destroys it and if Aristotle to whom our Author seems to have a great deference deserves credit such a one ceases to be a King and becomes a Tyrant he who ought to have bin the best of men is turned into the worst and he who is recommended to us under the name of a Father becomes a publick Enemy to the People The question therefore is not what is good for the King but what is good for the People and he can have no right repugnant to them Bracton is not more gentle The King says he is obliged by his Oath to the utmost of his power to preserve the Church and the Christian World in peace to hinder rapine and all manner of iniquity to cause justice and mercy to be observed He has no power but from the Law that only is to be taken for Law quod recté fuerit definitum he is therefore to cause justice to be done according to that rule and not to pervert it for his own pleasure profit or glory He may chuse Judges also not such as will be subservient to his will but Viros sapientes timentes Deum in quibus est veritas eloquiorum qui oderunt avaritiam Which proves that Kings and their Officers do not possess their places for themselves but for the People and must be such as are fit and able to perform the duties they undertake The mischievous fury of those who assume a power above their abilities is well represented by the known fable of Phaeton they think they desire fine things for themselves when they seek their own ruin In conformity to this the same Bracton says that If any man who is unskilful assume the seat of justice he falls as from a Precipice c. and 't is the same thing as if a sword be put into the hand of a mad man which cannot but affect the King as well as those who are chosen by him If he neglect the functions of his Office he dos unjustly and becomes the Vicegerent of the Devil for he is the Minister of him whose works he dos This is Bracton's opinion but desiring to be a more gentle Interpreter of the Law I only wish that Princes would consider the end of their institution endeavour to perform it measure their own abilities content themselves with that power which the Laws allow and abhor those Wretches who by flattery and lies endeavour to work upon their frailest Passions by which means they draw upon them that hatred of the People which frequently brings them to destruction Tho Ulpian's words Princeps legibus non tenetur be granted to have bin true in fact with relation to the Roman Empire in the time when he lived yet they can conclude nothing against us The Liberty of Rome had bin overthrown long before by the power of the Sword and the Law render'd subservient to the will of the Usurpers They were not Englishmen but Romans who lost the Battels of Pharsalia and Philippi The Carcases of their Senators not ours were exposed to the Wolves and Vulturs Pompeius Scipio Lentulus Afranius Petreius Cato Cassius and Brutus were defenders of the Roman not the English Liberty and that of their Country not ours could only be lost by their defeat Those who were destroy'd by the Proscriptions left Rome not England to be enslaved If the best had gained the victory it could have bin no advantage to us and their overthrow can be no prejudice Every Nation is to take care of their own Laws and whether any one has had the Wisdom Virtue Fortune and Power to defend them or not concerns only themselves The Examples of great and good men acting freely deserve consideration but they only perish by the ill success of their designs and whatsoever is afterwards done by their subdued Posterity ought to have no other effect upon the rest of the world than to admonish them so to join in the defence of their Liberties as never to be brought under the necessity of acting by the command of one to the prejudice of themselves and their Country If the Roman greatness perswade us to put an extraordinary value upon what passed among them we ought rather to examin what they did said or thought when they enjoy'd that Liberty which was the Mother and Nurse of their Virtue than what they suffer'd or were forc'd to say when they were fallen under that Slavery which produced all manner of corruption and made them the most base and miserable People of the world For what concerns us the Actions of our Ancestors resemble those of the antient rather than the later Romans tho our Government be not the same with theirs in form yet it is in principle and if we are not degenerated we shall rather desire to imitate the Romans in the time of their virtue glory power and felicity than what they were in that of their slavery vice shame and misery In the best times when the Laws were more powerful than the commands of men fraud was accounted a crime so detestable as not to be imputed to any but Slaves and he who had sought a power above the Law under colour of interpreting it would have bin exposed to scorn or greater punishments if any can be greater than the just scorn of the best men And as neither the Romans nor any people of the world have better defended their Liberties than the English Nation when any attempt has bin made to oppress them by force they ought to be no less careful to preserve them from the more dangerous efforts of fraud and falshood Our Ancestors were certainly in a low condition in the time of William the First Many of their best men had perished in the Civil Wars or with Harold their valour was great but rough and void of skill The Normans by frequent Expeditions into France Italy and Spain had added subtilty to the boisterous violence of their native climate William had engaged his Faith but broke it and turned the power with which he was entrusted to the ruin of those that had trusted him He destroy'd many worthy men carried others into Normandy and thought himself Master of all He was crafty bold and elated with Victory but the resolution of a brave People was invincible When their Laws and Liberties were in danger they resolved to die or to defend them and made him see he could no otherwise preserve his Crown
ready to use it and their extravagances having bin often chastised by Law sufficiently proves that their power is not derived from a higher original than the Law of their own Countries If it were true that the answer sometimes given by Kings to Bills presented for their Assent did as our Author says amount to a denial it could only shew that they have a negative voice upon that which is agreed by the Parliament and is far from a power of acting by themselves being only a check upon the other parts of the Government But indeed it is no more than an elusion and he that dos by art obliquely elude confesses he has not a right absolutely to refuse 'T is natural to Kings especially to the worst to scrue up their Authority to the height and nothing can more evidently prove the defect of it than the necessity of having recourse to such pitiful evasions when they are unwilling to do that which is required But if I should grant that the words import a denial and that notwithstanding those of the Coronation Oath Quas vulgus elegerit they might deny no more could be inferred from thence than that they are entrusted with a power equal in that point to that of either House and cannot be supreme in our Author's sense unless there were in the same State at the same time three distinct supreme and absolute Powers which is absurd His cases relating to the proceedings of the Star-Chamber and Council-Table do only prove that some Kings have encroached upon the rights of the Nation and bin suffer'd till their excesses growing to be extreme they turn'd to the ruin of the Ministers that advised them and sometimes of the Kings themselves But the jurisdiction of the Council having bin regulated by the Statute of the 17 Car. 1. and the Star-Chamber more lately abolished they are nothing to our dispute Such as our Author usually impute to treason and rebellion the changes that upon such occasions have ensued but all impartial men do not only justify them but acknowledg that all the Crowns of Europe are at this day enjoy'd by no other title than such acts solemnly performed by the respective Nations who either disliking the person that pretended to the Crown tho next in blood or the government of the present possessor have thought fit to prefer another person or family They also say that as no Government can be so perfect but some defect may be originally in it or afterwards introduced none can subsist unless they be from time to time reduced to their first integrity by such an exertion of the power of those for whose sake they were instituted as may plainly shew them to be subject to no power under Heaven but may do whatever appears to be for their own good And as the safety of all Nations consists in rightly placing and measuring this power such have bin found always to prosper who have given it to those from whom usurpations were least to be feared who have bin least subject to be awed cheated or corrupted and who having the greatest interest in the Nation were most concerned to preserve its power liberty and welfare This is the greatest trust that can be reposed in men This power was by the Spartans given to the Ephori and the Senat of twenty eight in Venice to that which they call Concilio de Pregadi in Germany Spain France Sweedland Denmark Poland Hungary Bohemia Scotland England and generally all the Nations that have lived under the Gothick Polity it has bin in their General Assemblies under the names of Diets Cortez Parliaments Senats and the like But in what hands soever it is the power of making abrogating changing correcting and interpreting Laws has bin in the same Kings have bin rejected or deposed the Succession of the Crown settled regulated or changed and I defy any man to shew me one King amongst all the Nations abovementioned that has any right to the Crown he wears unless such acts are good If this power be not well placed or rightly proportioned to that which is given to other Magistrates the State must necessarily fall into great disorders or the most violent and dangerous means must be frequently used to preserve their Liberty Sparta and Venice have rarely bin put to that trouble because the Senats were so much above the Kings and Dukes in power that they could without difficulty bring them to reason The Gothick Kings in Spain never ventur'd to dispute with the Nobility and Witza and Rodrigo exposed the Kingdom as a prey to the Moors rather by weakning it through the neglect of Military discipline joined to their own ignorance and cowardice and by evil example bringing the youth to resemble them in lewdness and baseness than by establishing in themselves a power above the Law But in England our Ancestors who seem to have had some such thing in their eye as balancing the powers by a fatal mistake placed usually so much in the hands of the King that whensoever he happened to be bad his extravagances could not be repress'd without great danger And as this has in several ages cost the Nation a vast proportion of generous blood so 't is the cause of our present difficulties and threatens us with more but can never deprive us of the rights we inherit from our fathers SECT XXVIII The English Nation has always bin governed by it self or its Representatives HAVING proved that the People of England have never acknowledged any other human Law than their own and that our Parliaments having the power of making and abrogating Laws they only can interpret them and decide hard cases it plainly appears there can be no truth in our Author's assertion that the King is the Author Corrector and Moderator of both Statute and Common Law and nothing can be more frivolous than what he adds that neither of them can be a diminution of that natural power which Kings have over their People as fathers in as much as the differences between paternal and monarchical Power as he asserts it are vast and irreconcileable in principle and practice as I have proved at large in the former parts of this Work But lest we should be too proud of the honour he is pleased to do to our Parliaments by making use of their Authority he says We are first to remember that till the Conquest which name for the glory of our Nation he gives to the coming in of the Normans there could be no Parliament assembled of the General States because we cannot learn that until those days it was intirely united in one Secondly he doubts Whether the Parliament in the time of the Saxons were composed of the Nobility and Clergy or whether the Commons were also called but concludes there could be no Knights of any Shires because there were no Shires Thirdly That Henry the first caused the Commons first to assemble Knights and Burgesses of their own chusing and would make this to be an act
beyond or contrary to the true meaning of it private men who swear obedience ad legem swear no obedience extra or contra Legem whatsoever they promise or swear can detract nothing from the publick Liberty which the Law principally intends to preserve Tho many of them may be obliged in their several Stations and Capacities to render peculiar services to a Prince the People continue as free as the internal thoughts of a man and cannot but have a right to preserve their Liberty or avenge the violation If matters are well examined perhaps not many Magistrates can pretend to much upon the title of merit most especially if they or their progenitors have continued long in Office The conveniences annexed to the exercise of the Sovereign power may be thought sufficient to pay such scores as they grow due even to the best and as things of that nature are handled I think it will hardly be found that all Princes can pretend to an irresistible power upon the account of beneficence to their People When the family of Medices came to be masters of Tuscany that Country was without dispute in men mony and arms one of the most flourishing Provinces in the World as appears by Macchiavel's account and the relation of what happened between Charles the eighth and the Magistrates of Florence which I have mentioned already from Guicciardin Now whoever shall consider the strength of that Country in those days together with what it might have bin in the space of a hundred and forty years in which they have had no war nor any other plague than the extortion fraud rapin and cruelty of their Princes and compare it with their present desolate wretched and contemptible condition may if he please think that much veneration is due to the Princes that govern them but will never make any man believe that their Title can be grounded upon beneficence The like may be said of the Duke of Savoy who pretending upon I know not what account that every Peasant in the Dutchy ought to pay him two Crowns every half year did in 1662 subtilly find our that in every year there were thirteen halves so that a poor man who had nothing but what he gained by hard labour was through his fatherly Care and Beneficence forced to pay six and twenty Crowns to his Royal Highness to be employ'd in his discreet and virtuous pleasures at Turin The condition of the Seventeen Provinces of the Netherlands and even of Spain it self when they fell to the house of Austria was of the same nature and I will confess as much as can be required if any other marks of their Government do remain than such as are manifest evidences of their Pride Avarice Luxury and Cruelty France in outward appearance makes a better show but nothing in this world is more miserable than that people under the fatherly care of their triumphant Monarch The best of their condition is like Asses and Mastiff-dogs to work and fight to be oppressed and kill'd for him and those among them who have any understanding well know that their industry courage and good success is not only unprofitable but destructive to them and that by increasing the power of their Master they add weight to their own Chains And if any Prince or succession of Princes have made a more modest use of their Power or more faithfully discharged the trust reposed in them it must be imputed peculiarly to them as a testimony of their personal Virtue and can have no effect upon others The Rights therefore of Kings are not grounded upon Conquest the Liberties of Nations do not arise from the Grants of their Princes the Oath of Allegiance binds no privat man to more than the Law directs and has no influence upon the whole Body of every Nation Many Princes are known to their Subjects only by the injuries losses and mischiefs brought upon them such as are good and just ought to be rewarded for their personal Virtue but can confer no right upon those who no way resemble them and whoever pretends to that merit must prove it by his Actions Rebellion being nothing but a renewed War can never be against a Government that was not established by War and of it self is neither good nor evil more than any other War but is just or unjust according to the cause or manner of it Besides that Rebellion which by Samuel is compar'd to Witchcraft is not of private men or a People against the Prince but of the Prince against God The Israelites are often said to have rebelled against the Law Word or Command of God but tho they frequently opposed their Kings I do not find Rebellion imputed to them on that account nor any ill character put upon such actions We are told also of some Kings who had bin subdued and afterwards rebelled against Chedorlaomer and other Kings but their cause is not blamed and we have some reason to believe it good because Abraham took part with those who had rebelled However it can be of no prejudice to the cause I defend for tho it were true that those subdued Kings could not justly rise against the person who had subdued them or that generally no King being once vanquished could have a right of Rebellion against his Conqueror it could have no relation to the actions of a people vindicating their own Laws and Liberties against a Prince who violates them for that War which never was can never be renewed And if it be true in any case that hands and swords are given to men that they only may be Slaves who have no courage it must be when Liberty is overthrown by those who of all men ought with the utmost industry and vigour to have defended it That this should be known is not only necessary for the safety of Nations but advantagious to such Kings as are wise and good They who know the frailty of human Nature will always distrust their own and desiring only to do what they ought will be glad to be restrain'd from that which they ought not to do Being taught by reason and experience that Nations delight in the Peace and Justice of a good Government they will never fear a general Insurrection whilst they take care it be rightly administred and finding themselves by this means to be safe will never be unwilling that their Children or Successors should be obliged to tread in the same steps If it be said that this may sometimes cause disorders I acknowledg it but no human condition being perfect such a one is to be chosen which carries with it the most tolerable inconveniences And it being much better that the irregularities and excesses of a Prince should be restrained or suppressed than that whole Nations should perish by them those Constitutions that make the best provision against the greatest evils are most to be commended If Governments were instituted to gratify the lusts of one man those could not be good that