which they are condemned perpetually to the Gallies and such as are aiding to them to grievous Fines But before this be acknowledged to have any similitude or relation to our discourse concerning Kings it must be proved that the present King or those under whom he claims is or were Proprietors of all the Lands in England and granted the several parcels under the condition of suffering patiently such Inconveniences and Miseries as are above-mentioned or that they who did confer the Crown upon any of them did also give a Propriety in the Land which I do not find in any of the fifteen or sixteen Titles that have bin since the coming in of the Normans and if it was not done to the first of every one it cannot accrue to the others unless by some new act to the same purpose which will not easily be produced It will be no less difficult to prove that any thing unworthy of freemen is by any Tenures imposed in England unless it be the offering up of the Wives and Daughters of Tenants to the Lust of Abbots and Monks and they are so far from being willingly suffer'd that since the Dens and Nurseries of those Beasts were abolished no man that succeeds them has had impudence sufficient to exact the performance and tho the letter of the Law may favour them the turpitude of the thing has extinguished the usage But even the Kings of Israel and Judah who brought upon the People those evils that had bin foretold by Samuel did not think they had a right to the Powers they exercised If the Law had given a right to Ahab to take the best of their Vineyards he might without ceremony have taken that of Naboth and by the majestick power of an absolute Monarch have chastized the churlish Clown who resused to sell or change it for another but for want of it he was obliged to take a very different course If the lives of Subjects had in the like manner depended upon the will of Kings David might without scruple have killed Vriah rather than to place him in the front of the Army that he might fall by his own courage The malice and treachery of such Proceedings argues a defect of power and he that acts in such an oblique manner shews that his actions are not warranted by the Law which is boldly executed in the face of the Sun This shews the interpretation put upon the words Against thee only have I sinned by Court-flatterers to be false If he had not sinned against Bathsheba whom he corrupted Vriah whom he caused to be killed the People that he scandalized and the Law which he violated he had never endeavoured to cover his guilt by so vile a sraud And as he did not thereby fly the sight of God but of men 't is evident that he in that action feared men more than God If by the Examples of Israel and Judah we may judg whether the Inconveniences and Miseries brought upon Nations by their Kings be tolerable or intolerable it will be enough to consider the madness of Sauls cruelty towards his Subjects and the slaughter brought upon them by the hand of the Philistins on Mount Gilboa where he fell with the flower of all Israel the Civil Wars that hapned in the time of David and the Plague brought upon the People by his wickedness the heavy burdens laid upon them by Solomon and the Idolatry favour'd by him the wretched folly of Rehoboam and the defection of the ten Tribes caused by it the Idolatry established by Jeroboam and the Kings of Israel and that of many of those of Judah also the frequent Wars and unheard of Slaughters ensuing thereupon between the Tribes the daily devastations of the Country by all sorts of Strangers the murders of the Prophets the abolition of God's Worship the desolation of Towns and Provinces the Captivity of the ten Tribes carried away into unknown Countries and in the end the abolition of both Kingdoms with the captivity of the Tribe of Judah and the utter destruction of the City It cannot be said that these things were suffer'd under Kings and not from or by them for the desolation of the Cities People and Country is in many places of Scripture imputed to the Kings that taught Israel to sin as appears by what was denounced against Jeroboam Jehu Ahaz Manasseh Zedekiah and others Nay the Captivity of Babylon with the evils ensuing were first announced to Hezekiah for his vanity and Josiah by the like brought a great slaughter upon himself and people But if mischiess fell upon the People by the frailty of these who after David were the best nothing surely less than the utmost of all Miseries could be expected from such as were set to do evil and to make the Nation like to themselves in which they met with too great success If it be pretended that God's People living under an extraordinary Dispensation can be no example to us I desire other Histories may be examined for I confess I know no Nation so great happy and prosperous nor any Power so well established that two or three ill Kings immediately succeeding each other have not bin able to destroy and bring to such a condition that it appeared the Nations must perish unless the Senates Diets and other Assemblies of State had put a stop to the mischief by restraining or deposing them and tho this might be proved by innumerable Testimonies I shall content my self with that of the Roman Empire which perished by the vices corruption and baseness of their Princes the noble Kingdom of the Goths in Spain overthrown by the Tyranny of Witza and Rodrigo the present state of Spain now languishing and threatning ruin from the same causes France brought to the last degree of misery and weakness by the degenerate races of Pharamond and Charles preserved and restored by the Virtues of Pepin and Capet to which may be added those of our own Country which are so well known that I need not mention them SECT VI. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches OUR Author having hitherto spoken of all Nations as born under a necessity of being subject to Absolute Monarchy which he pretends to have bin set up by the universal and indispensible Law of God and Nature now seems to leave to their discretion whether they will have a King or not but says that those who will have a King are bound to allow him Royal maintenance by providing Revenues for the Crown since it is for the Honour Profit and Safety of the People to have their King glorious powerful and abounding in Riches If there be any thing of sense in this Clause there is nothing of truth in the foundation or principle of his whole Book For as the right and being of a Father is natural or inherent and no ways depending upon the will of the Child that of a
and People at London and Harold excused himself for not performing his Oath to William the Norman because he said he had made it unduly and presumptuously without consulting the Nobility and People and without their Authority William was received with great joy by the Clergy and People and saluted King by all swearing to observe the antient good and approved Laws of England and tho he did but ill perform his Oath yet before his death he seemed to repent of the ways he had taken and only wishing his Son might be King of England he confessed in his last Will made at Caen in Normandy that he neither found nor left the Kingdom as an Inheritance If he possessed no right except what was conferred upon him no more was conserred than had bin enjoy'd by the antient Kings according to the approved Laws which he swore to observe Those Laws gave no power to any till he was elected and that which they did then give was so limited that the Nobility and People reserved to themselves the disposition of the greatest Affairs even to the deposition and expulsion of such as should not well perform the duty of their Oaths and Office And I leave it to our Author to prove how they can be said to have had the Sword and the Power so as to be feared otherwise than as the Apostle says by those that do evil which we acknowledg to be not only in the King but in the lowest Officer of Justice in the world If it be pretended that our later Kings are more to be seared than William the Norman or his Predecessors it must not be as has bin proved either from the general right of Kings or from the Doctrine of the Apostle but from something else that is peculiar and subsequent which I leave our Author's Disciples to prove and an answer may be found in due time But to show that our Ancestors did not mistake the words of the Apostle 't is good to consider when to whom and upon what occasion he spoke The Christian Religion was then in its infancy his discourses were addressed to the Professors of it who tho they soon grew to be considerable in number were for the most part of the meanest sort of People Servants or Inhabitants of the Cities rather than Citizens and Freemen joined in no civil Body or Society nor such as had or could have any part in the Government The occasion was to suppress the dangerous mistake of many converted Jews and others who knowing themselves to be freed from the power of Sin and the Devil presumed they were also freed from the obligation of human Laws And if this Error had not bin crop'd in the bud it would have given occasion to their Enemies who desired nothing more to destroy them all and who knowing that such Notions were stirring among them would have bin glad that they who were not easily to be discovered had by that means discovered themselves This induced a necessity of diverting a poor mean scatter'd People from such thoughts concerning the State to convince them of the Error into which they were fallen that Christians did not owe the same obedience to Civil Laws and Magistrates as other men and to keep them from drawing destruction upon themselves by such ways as not being warranted by God had no promise of his Protection St. Paul's work was to preserve the Professors of Christianity as appears by his own words I exhort that first of all Supplications Prayers Intercessions and giving of thanks be made for all men for Kings and for all that are in Authority that we may live a quiet and peaceable life in all godliness and honesty Put them in mind to be subject to Principalities and Powers to obey Magistrates to be ready for every good work St. Peter agrees with him fully in describing the Magistrate and his Duty shewing the reasons why obedience should be pay'd to him and teaching Christians to be humble and contented with their condition as free yet not using their Liberty for a cover to malice and not only to fear God and honor the King of which conjunction of words such as Filmer are very proud but to honor all men as is said in the same verse This was in a peculiar manner the work of that time in which those who were to preach and propagate the Gospel were not to be diverted from that Duty by entangling themselves in the care of State-affairs but it dos in some sense agree with all times for it can never be the duty of a good man to oppose such a Magistrate as is the Minister of God in the exercise of his Office nor to deny to any man that which is his due But as the Christian Law exempts no man from the Duty he ows to his Father Master or the Magistrate it dos not make him more a Slave than he was before nor deprive him of any natural or civil Right and if we are obliged to pay Tribute Honor or any other thing where it is not due it must be by some Precept very different from that which commands us to give to Cesar that which is Cesar's If he define the Magistrate to be the Minister of God doing Justice and from thence draws the Reasons he gives for rendring Obedience to him we are to inquire whose Minister he is who overthrows it and look for some other reason sor rendring obedience to him than the words of the Apostles If David who was willing to lay down his life sor the people who hated iniquity and would not suffer a liar to come into his presence was the Minister of God I desire to know whose Minister Caligula was who set up himself to be worshipped for a God and would at once have destroyed all the people that he ought to have protected Whose Minister was Nero who besides the abominable impurities of his lise and hatred to all virtue as contrary to his Person and Government set fire to the great City If it be true that contrariorum contraria est ratio these questions are easily decided and if the reasons of things are eternal the same distinction grounded upon truth will be good for ever Every Magistrate and every man by his works will for ever declare whose Minister he is in what spirit he lives and consequently what obedience is due to him according to the Precept of the Apostle If any man ask what I mean by Justice I answer That the Law of the Land as far as it is Sanctio recta jubens honesta prohibens contraria declares what it is But there have bin and are Laws that are neither just nor commendable There was a Law in Rome that no God should be worshipped vvithout the consent of the Senat Upon vvhich Tertullian says scoffingly That God shall not be God unless he please Man and by virtue of this Law the first Christians were exposed to all manner of cruelties and some
No man has yet observed the Moderation of Gideon to have bin in Abimelech the Piety of Eli in Hophni and Phineas the Purity and Integrity of Samuel in Joel and Abiah nor the Wisdom of Solomon in Rehoboam And if there was so vast a difference between them and their Children who doubtless were instructed by those excellent men in the ways of Wisdom and Justice as well by Precept as Example were it not madness to be confident that they who have neither precept nor good example to guide them but on the contrary are educated in an utter ignorance or abhorrence of all virtue will always be just and good or to put the whole power into the hands of every man woman or child that shall be born in governing Families upon a supposition that a thing will happen which never did or that the weakest and worst will perform all that can be hoped and was seldom accomplished by the wisest and best exposing whole Nations to be destroy'd without remedy if they do it not And if this be madness in all extremity 't is to be presumed that Nations never intended any such thing unless our Author prove that all Nations have bin mad from the beginning and must always continue to be so To cure this he says They degenerate into Tyrants and if he meant as he speaks it would be enough For a King cannot degenerate into a Tyrant by departing from that Law which is only the product of his own will But if he do degenerate it must be by departing from that which dos not depend upon his will and is a rule prescribed by a power that is above him This indeed is the Doctrine of Bracton who having said that the Power of the King is the Power of the Law because the Law makes him King adds That if he do injustice he ceases to be King degenerates into a Tyrant and becomes the Vicegerent of the Devil But I hope this must be understood with temperament and a due consideration of human frailty so as to mean only those injuries that are extreme for otherwise he would terribly shake all the Crowns of the World But lest our Author should be thought once in his life to have dealt sincerely and spoken truth the next lines shew the fraud of his last Assertion by giving to the Prince a power of mitigating or interpreting the Laws that he sees to be rigorous or doubtful But as he cannot degenerate into a Tyrant by departing from the Law which proceeds from his own will so he cannot mitigate or interpret that which proceeds from a superior Power unless the right of mitigating or interpreting be conferred upon him by the same For as all wise men confess that none can abrogate but those who may institute and that all mitigation and interpretation varying from the true sense is an alteration that alteration is an abrogation for whatsoever is changed is dissolved and therefore the power of mitigating is inseparable from that of instituting This is sufficiently evidenced by Henry the Eighth's Answer to the Speech made to him by the Speaker of the House of Commons 1545 in which he tho one of the most violent Princes we ever had confesses the Parliament to be the Law-makers and that an obligation lay upon him rightly to use the power with which he was entrusted The right therefore of altering being inseparable from that of making Laws the one being in the Parliament the other must be so also Fortescue says plainly the King cannot change any Law Magna Charta casts all upon the Laws of the Land and Customs of England but to say that the King can by his will make that to be a Custom or an antient Law which is not or that not to be so which is is most absurd He must therefore take the Laws and Customs as he finds them and can neither detract from nor add any thing to them The ways are prescribed as well as the end Judgments are given by equals per Pares The Judges who may be assisting to those are sworn to proceed according to Law and not to regard the King's Letters or Commands The doubtful Cases are reserved and to be referred to the Parliament as in the Statute of 35 Edw. 3d concerning Treasons but never to the King The Law intending that these Parliaments should be annual and leaving to the King a power of calling them more often if occasion require takes away all pretence of a necessity that there should be any other power to interpret or mitigate Laws For 't is not to be imagined that there should be such a pestilent evil in any antient Law Custom or later Act of Parliament which being on the sudden discover'd may not without any great prejudice continue for forty days till a Parliament may be called whereas the force and essence of all Laws would be subverted if under colour of mitigating and interpreting the power of altering were allow'd to Kings who often want the inclination and sor the most part the capacity of doing it rightly 'T is not therefore upon the uncertain will or understanding of a Prince that the safety of a Nation ought to depend He is sometimes a child and sometimes overburden'd with years Some are weak negligent slothful foolish or vicious others who may have something of rectitude in their intentions and naturally are not uncapable of doing well are drawn out of the right way by the subtilty of ill men who gain credit with them That rule must always be uncertain and subject to be distorted which depends upon the fancy of such a man He always fluctuates and every passion that arises in his mind or is infused by others disorders him The good of a People ought to be established upon a more solid foundation For this reason the Law is established which no passion can disturb 'T is void of desire and fear lust and anger 'T is Mens sine affectu written reason retaining some measure of the Divine Perfection It dos not enjoin that which pleases a weak frail man but without any regard to persons commands that which is good and punishes evil in all whether rich or poor high or low 'T is deaf inexorable inflexible By this means every man knows when he is safe or in danger because he knows whether he has done good or evil But if all depended upon the will of a man the worst would be often the most safe and the best in the greatest hazard Slaves would be often advanced the good and the brave scorn'd and neglected The most generous Nations have above all things sought to avoid this evil and the virtue wisdom and generosity of each may be discern'd by the right fixing of the rule that must be the guide of every mans life and so constituting their Magistracy that it may be duly observed Such as have attained to this perfection have always flourished in virtue and happiness They are as Aristotle
Kings of Spain France and Sweden so well to understand the meaning of it as to decide extraordinary cases The wisdom of Nations has provided more assured helps and none could have bin so brutish and negligent of the publick Concernments to suffer the Succession to fall to women children c. if they had not reserved a power in themselves to prefer others before the nearest in blood if reason require and prescribed such rules as might preserve the publick from ruin notwithstanding their infirmities and vices These helps provided by our Laws are principally by grand and petit Juries who are not only Judges of matters of fact as whether a man be kill'd but whether he be kill'd criminally These men are upon their Oaths and may be indicted of Perjury if they prevaricate The Judges are present not only to be a check upon them but to explain such points of the Law as may seem difficult And tho these Judges may be said in some sense to be chosen by the King he is not understood to do it otherwise than by the advice of his Council who cannot perform their duty unless they propose such as in their consciences they think most worthy of the Office and most capable of performing the duty rightly nor he accomplish the Oath of his Coronation unless he admit those who upon deliberation seem to be the best The Judges being thus chosen are so far from depending upon the will of the King that they swear faithfully to serve the People as well as the King and to do justice to every man according to the Law of the Land notwithstanding any Writs Letters or Commands received from him and in default thereof they are to forfeit their bodies lands and goods as in cases of Treason These Laws have bin so often and so severely executed that it concerns all Judges well to consider them and the Cases of Tresilian Empson Dudley and others shew that neither the King 's preceding command nor subsequent pardon could preserve them from the punishment they deserved All men knew that what they did was agreeable to the King's pleasure for Tresilian advanced the Prerogative of Edward the 2d and Empson brought great Treasures into the Coffers of Henry the 7th Nevertheless they were charged with Treason for subverting the Laws of the Land and executed as Traitors Tho England ought never to forget the happy Reign of Q. Elizabeth yet it must be acknowledged that she as well as others had her failings She was full of love to the People just in her nature sincere in her intentions but could not so perfectly discover the snares that were laid for her or resist the importunity of the Persons she most trusted as not sometimes to be brought to attempt things against Law She and her Counsellors pressed the Judges very hardly to obey the Patent under her Great Seal in the case of Cavendish but they answered That both she and they had taken an Oath to keep the Law and if they should obey her commands the Law would not warrant them c. And besides the offence against God their Country and the Commonwealth they alledged the example of Empson and Dudley whereby they said they were deterred from obeying her illegal Commands They who had sworn to keep the Law notwithstanding the King's Writs knew that the Law depended not upon his will and the same Oath that obliged them not to regard any command they should receive from him shewed that they were not to expect indemnity by it and not only that the King had neither the power of making altering mitigating or interpreting the Law but that he was not at all to be heard in general or particular matters otherwise than as he speaks in the common course of Justice by the Courts legally established which say the same thing whether he be young or old ignorant or wise wicked or good and nothing dos better evidence the wisdom and care of our Ancestors in framing the Laws and Government we live under than that the People did not suffer extremities by the vices or infirmities of Kings till an Age more full of malice than those in which they lived had found tricks to pervert the rule and frustrate their honest intentions It was not safe for the Kings to violate their Oaths by an undue interposition of their Authority but the Ministers who served them in those violations have seldom escaped punishment This is to be understood when the deviations from Justice are extreme and mischievous for something must always be allow'd to human frailty The best have their defects and none could stand if a too exact scrutiny were made of all their actions Edward the third about the twentieth year of his Reign acknowledged his own in Parliament and as well for the ease of his Conscience as the satisfaction of his People promoted an Act Commanding all Judges to do Justice notwithstanding any Writs Letters or Commands from himself and forbidding those that belonged to the King Queen and Prince to intermeddle in those matters But if the best and wisest of our Princes in the strength and maturity of their years had their failings and every act proceeding from them that tended to the interruption of Justice was a failing how can it be said that the King in his personal capacity directly or indirectly may enter into the discussion of these matters much less to determine them according to his will But says our Author the Law is no better than a Tyrant general Pardons at the Coronation and in Parliament are but the bounty of the Prerogative c. There may be hard cases and citing some perverted pieces from Aristotle's Ethicks and Politicsk adds That when something falls out besides the general rule then it is fit that what the Lawmaker hath omitted or where he hath erred by speaking generally it should be corrected and supplied as if the Lawmaker were present that ordained it The Governor whether he be one man or more ought to be Lord of these things whereof it was impossible that the Law should speak exactly These things are in part true but our Author makes use of them as the Devil dos of Scripture to subvert the truth There may be something of rigour in the Law that in some cases may be mitigated and the Law it self in relation to England dos so far acknowledg it as to refer much to the consciences of Juries and those who are appointed to assist them and the most difficult Cases are referred to the Parliament as the only judges that are able to determine them Thus the Statute of the 35 Edw. 3d enumerating the crimes then declared to be Treason leaves to suture Parliaments to judg what other facts equivalent to them may deserve the same punishment and 't is a general rule in the Law which the Judges are sworn to observe that difficult Cases should be reserved till the Parliament meet who are only able to decide them and
of the principal as remained due to them has bin repay'd and the Lands resumed SECT XXX Henry the First was King of England by as good a Title as any of his Predecessors or Successors HAVING made it appear as I suppose that the antient Nobility of England was composed of such men as had bin ennobled by bearing Arms in the defence or enlargement of the Common-wealth that the Dukes Earls c. were those who commanded them that they and their dependents received Lands for such services under an obligation of continuing to render the like and according to their several degrees and proportions to provide and maintain Horses Arms and Men for the same uses it cannot be denied that they were such Gentlemen and Lords of Mannors as we now call Commoners together with the Freeholders and such as in war were found most able to be their Leaders Of these the Micklegemots Wittenagemots and other publick Assemblies did consist and nothing can be more absurd than to assign the names and rights of Duke Earl and Vicount which were names of Offices to those who have not the Offices and are no way fit for them If our Author therefore had said that such as these who had always composed the great Councils of our Nation had in favour of Henry the First bestowed the Crown upon him as they had done upon his Father and Brother I should agree with him but 't is the utmost extravagance to say that he who had neither title nor possession should give the power to those who had always bin in the possession of it and exercised it in giving to him whatsoever he had But I most wonder he should so far forget himself to call this Henry a Usurper and detract from the validity of his Acts because he had no title whereas there neither is was or can be a Usurper if there be any truth in his Doctrine for he plainly tells us we are only to look to the power and not at all to the means and ways by which it is obtained and making no difference between a King and a Tyrant enjoins an equal submission to the commands of both If this were only a slip of his Pen and he did really take this Henry to be a Usurper because he had not a good title I should desire to know the marks by which a lawful King is distinguished from a Usurper and in what a just Title dos consist If he place it in an hereditary Succession we ought to be informed whether this right must be deduced from one universal Lord of Mankind or from a particular Lord of every People If from the universal Lord the same descent that gives him a right to the dominion of any one Country enslaves the whole world to him if from the particular Lord of one place proof must be given how he came to be so for if there was a defect in the first it can never be repaired and the possession is no more than a continued Usurpation But having already proved the absurdity of any pretence to either I shall forbear the repetition and only say that if the course of Succession may never be justly interrupted the family of Meroveus could not have had any right to the Crown of France Pepin was a Usurper if it must for ever have continued in the descendents of Meroveus and Hugh Capet could have no title if the race of Pepin might not be dispossess'd I leave our Author to dispute this point with the King of France and when he has so far convinced him that he is a Usurper as to perswade him to resign his Crown to the house of Austria claiming from Pharamond or to that of Lorrain as descended from Pepin I can give him half a dozen more knots which will not be with less difficulty untied and which instead of establishing the titles of such Kings as are known to us will overthrow them all unless a right be given to usurpation or the consent of a People do confer it But if there is such a thing as a Usurper and a rule by which men may judg of Usurpation 't is not only lawful but necessary for us to examine the titles of such as go under the name of Kings that we may know whether they are truly so or not lest through ignorance we chance to give the veneration and obedience that is due to a King to one who is not a King and deny it to him who by an uninterruptible line of Descent is our natural Lord and thereby prefer the worst of men and our most bitter enemy before the Person we ought to look upon as our Father and if this prove dangerous to one or more Kings 't is our Author's fault not mine If there be no Usurper nor rule of distinguishing him from a lawful Prince Filmer is the worst of all triflers and impostors who grounds his Arguments in the most serious matters upon what he esteems to be false but the truth is he seems to have set himself against humanity and common sense as much as against Law and Virtue and if he who so frequently contradicts himself can be said to mean any thing he would authorize rapine and murder and perswade us to account those to be rightful Kings who by treachery and other unjust means overthrow the right of Descent which he pretends to esteem sacred as well as the Liberties of Nations which by better judges are thought to be so and gives the odious name of usurpation to the advancement of one who is made King by the consent of a willing People But if Henry the First were a Usurper I desire to know whether the same name belongs to all our Kings or which of them deserves a better that we may understand whose acts ought to be reputed legal and to whose Descent we owe veneration or whether we are wholly exempted from all for I cannot see a possibility of fixing the guilt of Usurpation upon Henry the First without involving many if not all our Kings in the same If his title was not good because his Brother Robert was still living that of Rufus is by the same reason overthrown and William their sather being a bastard could have none This fundamental defect could never be repair'd for the Successors could inherit no more than the right of the first which was nothing Stephen could deduce no title either from Norman or Saxon whatsoever Henry the second pretended must be from his Mother Maud and any other might have bin preferred before her as well as he If her title was from the Normans it must be void since they had none and the story of Edgar Atheling is too impertinent to deserve mention But however it could be of no advantage to her for David King of Scotland Brother to her Mother from whom only her title could be derived was then alive with his Son Henry who dying not long after left three Sons and three Daughters whose posterity being
it never had any effect which to us is the same 'T is as ridiculous to think of retrieving that which from the beginning of the World was lost as to create that which never was But I may go farther and affirm that tho there had bin such a right in the first Fathers of Manking exercised by them and for some ages individually transmitted to their eldest Sons it must necessarily perish since the generations of men are so confused that no man knows his own original and consequently this Heir is no where to be found for 't is a folly for a man to pretend to an Inheritance who cannot prove himself to be the right Heir If this be not true I desire to know from which of Noah's Sons the Kings of England France or Spain do deduce their Original or what reason they can give why the title to Dominion which is fancied to be in Noah did rather belong to the first of their respective Races that attained to the Crowns they now enjoy than to the meanest Peasant of their Kingdoms or how that can be transmitted to them which was not in the first We know that no man can give what he hath not that if there be no giver there is no gift if there be no root there can be no branch and that the first point failing all that should be derived from it must necessarily fail Our Author who is good at resolving difficulties shews us an easy way out of this strait 'T is true says he all Kings are not natural Parents of their Subjects yet they either are or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People and in their right succeed to the exercise of the Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all those that were subject to their Father c. By this means it comes to pass that many a Child succeeding a King hath the right of a Father over many a grey-headed multitude and hath the title of Pater Patriae An Assertion comprehending so many points upon which the most important Rights of all mankind do depend might deserve some proof But he being of opinion we ought to take it upon his credit doth not vouchsafe to give us so much as the shadow of any Nevertheless being unwilling either crudely to receive or rashly to reject it I shall take the liberty of examining the Proposition and hope I may be pardoned if I dwell a little more than ordinarily upon that which is the foundation of his Work We are beholden to him for confessing modestly that all Kings are not the natural Fathers of their People and sparing us the pains of proving that the Kings of Persia who reigned from the Indies to the Hellespont did not beget all the men that lived in those Countries or that the Kings of France and Spain who began to reign before they were five years old were not the natural Fathers of the Nations under them But if all Kings are not Fathers none are as they are Kings If any one is or ever was the Rights of Paternity belong to him and to no other who is not so also This must be made evident for matters of such importance require proof and ought not to be taken upon supposition If Filmer therefore will pretend that the right of Father belongs to any one King he must prove that he is the Father of his People for otherwise it doth not appertain to him he is not the man we seek 'T is no less absurd to say he is to be reputed Heir to the first Progenitor for it must be first proved that the Nation did descend from one single Progenitor without mixture of other races that this Progenitor was the Man to whom Noah according to Filmer's whimfical division of Asia Europe and Africa among his Sons did give the Land now inhabited by that people That this Division so made was not capable of Subdivisions and that this Man is by a true and uninterrupted Succession descended from the first and eldest Line of that Progenitor and all fails if every one of these points be not made good If there never was any such man who had that Right it cannot be inherited from him If by the same rule that a parcel of the World was allotted to him that parcel might be subdivided amongst his Children as they increased the subdivisions may be infinite and the right of Dominion thereby destroyed If several Nations inhabit the same Land they owe obedience to several Fathers that which is due to their true Father cannot be rendred to him that is not so for he would by that means be deprived of the Right which is inseparably annexed to his person And lastly whatsoever the right of an Heir may be it can belong only to him that is Heir Lest any should be seduced from these plain Truths by frivolous suggestions 't is good to consider that the title of Pater Patria with which our Author would cheat us hath no relation to the matters of Right upon which we dispute 'T is a figurative speech that may have bin rightly enough applied to some excellent Princes on account of their care and love to their People resembling that of a Father to his Children and can relate to none but those who had it No man that had common sense or valued truth did ever call Phalaris Dionysius Nabis Nero or Caligula Fathers of their Countries but Monsters that to the utmost of their power endeavoured their destruction which is enough to prove that sacred Name cannot be given to all and in consequence to none but such as by their Virtue Piety and good Government do deserve it These matters will yet appear more evident if it be considered that tho Noah had reigned as a King that Zoroaster as some suppose was Ham who reigned over his Children and that thereby some Right might perhaps be derived to such as succeeded them yet this can have no influence upon such as have not the like Original and no man is to be presumed to have it till it be proved since we have proved that many had it not If Nimrod set himself up against his Grandfather and Ninus who was descended from him in the fifth generation slew him they ill deserved the name and rights of Fathers and none but those who have renounced all Humanity Virtue and common sense can give it to them or their Successors If therefore Noah and Shem had not so much as the shadow of Regal Power and the actions of Nimrod Ninus and others who were Kings in their times shew they did not reign in the right of Fathers but were set up in a direct opposition to it the titles of the first Kings were not from Paternity nor consistent with it Our Author therefore who should have proved every point doth neither prove any one nor
whatever to admit of one who is evidently guilty of such Vices as are prejudicial to the State For this reason the French tho much addicted to their Kings rejected the vile remainders of Meroveus his Race and made Pepin the Son of Charles Martel King And when his Descendents sell into the like Vices they were often deposed till at last they were wholly rejected and the Crown given to Capet and to his Heirs Male as formerly Yet for all this Henry his Grandchild being esteemed more fit to govern than his elder Brother Robert was as is said before made King and that Crown still remains in his Descendents no consideration being had of the Children of Robert who continued Dukes of Burgundy during the reigns of ten Kings And in the memory of our Fathers Henry of Navarr was rejected by two Assemblies of the Estates because he differed in Religion from the Body of the Nation and could never be received as King till he had renounced his own tho he was certainly the next in Blood and that in all other respects he excelled in those Vertues which they most esteem We have already proved that our own History is full of the like Examples and might enumerate a multitude of others if it were not too tedious and as the various Rules according to which all the hereditary Crowns of the World are inherited shew that none is set by Nature but that every People proceeds according to their own Will the frequent deviations from those Rules do evidently testify that Salus Populi est Lex suprema and that no Crown is granted otherwise than in submission to it But tho there were a Rule which in no case ought to be transgressed there must be a Power of judging to whom it ought to be applied 'T is perhaps hard to conceive one more precise than that of France where the eldest Legitimate Male in the direct Line is preserred and yet that alone is not sufficient There may be Bastardy in the case Bastards may be thought legitimate and legitimate Sons Bastards The Children born of Isabel of Portugal during her Marriage with John the Third of Castile were declared Bastards and the Title of the House of Austria to that Crown depends upon that Declaration We often see that Marriages which have bin contracted and for a long time taken to be good have bin declared null and the legitimation of the present King of France is founded solely upon the abolition of the marriage of Henry the Fourth with Marguerite of Valois which for the space of twenty seven Years was thought to have bin good Whilst Spain was divided into five or six Kingdoms and the several Kings linked to each other by mutual Alliances incestuous Marriages were often contracted and upon better consideration annulled many have bin utterly void through the preingagement of one of the Parties These are not feigned Cases but such as happen frequently and the diversity of Accidents as well as the humours of Men may produce many others which would involve Nations in the most satal Disorders if every one should think himself obliged to follow such a one who pretended a Title that to him might seem plausible when another should set up one as pleasing to others and there were no Power to terminate those Disputes to which both must submit but the decision must be lest to the Sword This is that which I call the Application of the Rule when it is as plain and certain as humane Wisdom can make it but if it be lest more at large as where Females inherit the difficulties are inextricable and he that says The next Heir is really King when one is dead before he be so declared by a Power that may judg of his Title dos as far as in him lies expose Nations to be split into the most desperate Factions and every man to fight for the Title which he fancies to be good till he destroy those of the contrary Party or be destroyed by them This is the blessed way proposed by our Author to prevent Sedition But God be thanked our Ancestors found a better They did not look upon Robert the Norman as King of England after the death of his Father and when he did proudly endeavour on pretence of Inheritance to impose himself upon the Nation that thought fit to prefer his younger Brothers before him he paid the Penalty of his solly by the loss of his Eyes and Liberty The French did not think the Grandchild of Pharamond to be King after the death of his Father nor seek who was the next Heir of the Merovingian Line when Chilperic the third was dead nor regard the Title of Charles of Lorrain after the death of his Brother Lothair or of Robert of Burgundy eldest Son of King Robert but advanced Meroveus Pepin Capet and Henry the first who had no other Right than what the Nobility and People bestowed upon them And if such Acts do not destroy the Pretences of all who lay claim to Crowns by Inheritance and do not create a Right I think it will be hard to find a lawful King in the world or that there ever have bin any since the first did plainly come in like Nimrod and those who have bin every where since Histories are known to us owed their exaltation to the Consent of Nations armed or unarmed by the deposition or exclusion of the Heirs of such as had reigned before them Our Author not troubling himself with these things or any other relating to the matter in question is pleased to slight Hooker's Opinions concerning Coronation and Inauguration with the heaps of Scripture upon which he grounds them whereas those Solemnities would not only have bin foolish and impertinent but profane and impious if they were not Deeds by which the Right of Dominion is really conferred What could be more wickedly superstitious than to call all Israel together before the Lord and to cast Lots upon every Tribe Family and Person for the election of a King if it had bin known to whom the Crown did belong by a natural and unalterable Right Or if there had bin such a thing in Nature how could God have cauled that Lot to fall upon one of the youngest Tribe for ever to discountenance his own Law and divert Nations from taking any notice of it It had bin absurd for the Tribe of Judah to chuse and anoint David and for the other Tribes to follow their example after the death of Ishbosheth if he had bin King by a Right not depending on their Will David did worse in slaying the Sons of Rimmon saying they had killed a righteous Man lying upon his bed if Ishbosheth whose Head they presented had most unrighteously detained from him as long as he lived the Dominion of the ten Tribes The King Elders and People had most scornfully abused the most sacred things by using such Ceremonies in making him King and compleating their work in a Covenant made between him
as much as to say that they were ruin'd when they fell from their own unnatural Inventions to follow the Law of God and of Nature that Luxury also through which they fell was the product of their Felicity and that the Nations that had bin subdued by them had no other way of avenging their Defeats than by alluring their Masters to their own Vices This was the Root of their Civil Wars When that proud City found no more resistance it grew wanton Saevior armis Luxuria incubuit victumque ulciscitur orbem Lucan Honest Poverty became uneasy when Honours were given to ill-gotten Riches This was so Monarchical that a People infected with such a Custom must needs fall by it They who by Vice had exhausted their Fortunes could repair them only by bringing their Country under a Government that would give impunity to Rapine and such as had not Virtues to deserve Advancement from the Senate and People would always endeavour to set up a Man that would bestow the Honours that were due to Virtue upon those who would be most abjectly subservient to his Will and Interests When mens minds are filled with this Fury they sacrifice the common Good to the advancement of their private Concernments This was the temper of Catiline expressed by Sallust Luxuria principi gravis paupertas vix à privato toleranda and this put him upon that desperate extremity to say Incendium meum ruinâ extinguam Others in the same manner being filled with the same rage he could not want Companions in his most villanous Designs 'T is not long since a Person of the highest Quality and no less famous for Learning and Wit having observed the State of England as it stood not many years ago and that to which it has bin reduc'd since the year sixty as is thought very much by the Advice and Example of France said That they now were taking a most cruel vengeance upon us for all the Overthrows received from our Ancestors by introducing their most damnable Maxims and teaching us the worst of their Vices 'T is not for me to determine whether this Judgment was rightly made or not for I intend not to speak of our Affairs but all Historians agreeing that the change of the Roman Government was wrought by such means as I have mentioned and our Author acknowledging that change to have bin their ruin as in truth it was I may justly conclude that the overthrow of that Government could not have bin a ruin to them but good for them unless it had bin good and that the Power which did ruin it and was set up in the room of it cannot have bin according to the Laws of God or Nature for they confer only that which is good and destroy nothing that is so but must have bin most contrary to that good which was overthrown by it SECT XVI The best Governments of the World have bin composed of Monarchy Aristocracy and Democracy OUR Author's cavils concerning I know not what vulgar Opinions that Democracies were introduc'd to curb Tyranny deserve no answer for our question is Whether one form of Government be prescribed to us by God and Nature or we are left according to our own understanding to constitute such as seem best to our selves As for Democracy he may say what pleases him of it and I believe it can sute only with the convenience of a small Town accompanied with such Circumstances as are seldom found But this no way obliges men to run into the other extream in as much as the variety of forms between meer Democracy and Absolute Monarchy is almost infinite And if I should undertake to say there never was a good Government in the world that did not consist of the three simple Species of Monarchy Aristocracy and Democracy I think I might make it good This at the least is certain that the Government of the Hebrews instituted by God had a Judg the great Sanhedrin and General Assemblies of the People Sparta had two Kings a Senate of twenty eight chosen Men and the like Assemblies All the Dorian Cities had a chief Magistrate a Senate and occasional Assemblies The Ionian Athens and others had an Archon the Areopagi and all Judgments concerning matters of the greatest importance as well as the Election of Magistrates were referr'd to the People Rome in the beginning had a King and a Senate whilst the Election of Kings and Judgments upon Appeals remained in the People afterwards Consuls representing Kings and vested with equal Power a more numerous Senate and more frequent meetings of the People Venice has at this day a Duke the Senate of the Pregadi and the Great Assembly of the Nobility which is the whole City the rest of the Inhabitants being only Incolae not Cives and those of the other Cities or Countries are their Subjects and do not participate of the Government Genoa is governed in like manner Luca not unlike to them Germany is at this day governed by an Emperor the Princes or great Lords in their several Precincts the Cities by their own Magistrates and by general Diets in which the whole power of the Nation resides and where the Emperor Princes Nobility and Cities have their places in person or by their Deputies All the Northern Nations which upon the dissolution of the Roman Empire possessed the best Provinces that had composed it were under that form which is usually called the Gothick Polity They had King Lords Commons Diets Assemblies of Estates Cortez and Parliaments in which the Sovereign Powers of those Nations did reside and by which they were exercised The like was practised in Hungary Bohemia Sweden Denmark Poland and if things are changed in some of these places within few years they must give better proofs of having gained by the change than are yet seen in the World before I think my self obliged to change my opinion Some Nations not liking the name of King have given such a power as Kings enjoy'd in other places to one or more Magistrates either limited to a certain time or left to be perpetual as best pleased themselves Others approving the name made the Dignity purely elective Some have in their Elections principally regarded one Family as long as it lasted Others consider'd nothing but the fitness of the Person and reserved to themselves a liberty of taking where they pleased Some have permitted the Crown to be hereditary as to its ordinary course but restrained the Power and instituted Officers to inspect the Proceedings of Kings and to take care that the Laws were not violated Of this sort were the Ephori of Sparta the Maires du Palais and afterwards the Constable of France the Justicia in Arragon Rijckshofmeister in Denmark the High Steward in England and in all places such Assemblies as are before-mentioned under several names who had the Power of the whole Nation Some have continued long and it may be always in the same form others have changed
it Some being incensed against their Kings as the Romans exasperated by the Villanies of Tarquin and the Tuscans by the Cruelties of Mezentius abolished the name of King Others as Athens Sicion Argos Corinth Thebes and the Latins did not stay for such extremities but set up other Governments when they thought it best for themselves and by this conduct prevented the evils that usually fall upon Nations when their Kings degenerate into Tyrants and a Nation is brought to enter into a War by which all may be lost and nothing can be gained which was not their own before The Romans took not this salutary Course the mischief was grown up before they perceived or set themselves against it and when the effects of Pride Avarice Cruelty and Lust were grown to such a height that they could no longer be endured they could not free themselves without a War and whereas upon other occasions their Victories had brought them increase of Strength Territory and Glory the only reward of their Virtue in this was to be delivered from a Plague they had unadvisedly suffered to grow up among them I confess this was most of all to be esteemed for if they had bin overthrown their condition under Tarquin would have bin more intolerable than if they had fallen under the power of Pirrhus or Hannibal and all their following Prosperity was the fruit of their recover'd Liberty But it had bin much better to have reformed the State after the death of one of their good Kings than to be brought to fight for their Lives against that abominable Tyrant Our Author in pursuance of his aversion to all that is good disapproves this and wanting reasons to justify his dislike according to the custom of Impostors and Cheats hath recourse to the ugly terms of a back-door Sedition and Faction as if it were not as just for a People to lay aside their Kings when they receive nothing but evil and can rationally hope for no benefit by them as for others to set them up in expectation of good from them But if the truth be examin'd nothing will be found more orderly than the changes of Government or of the Persons and Races of those that governed which have bin made by many Nations When Pharamond's Grandson seemed not to deserve the Crown he had worn the French gave it to Meroveus who more resembled him in Virtue In process of time when this Race also degenerated they were rejected and Pepin advanced to the Throne and the most remote in blood of his Descendents having often bin preferred before the nearest and Bastards before the legitimate Issue they were at last all laid aside and the Crown remains to this day in the Family of Hugh Capet on whom it was bestow'd upon the rejection of Charles of Lorrain In like manner the Castilians took Don Sancho sirnamed the Brave second Son to Alphonso the Wise before Alphonso el Desheredado Son of the elder Brother Ferdinand The States of Arragon preferred Martin Brother to John the first before Mary his Daughter married to the Count de Foix tho Females were not excluded from the Succession and the House of Austria now enjoys that Crown from Joan Daughter to Ferdinand In that and many other Kingdoms Bastards have bin advanced before their legitimate Brothers Henry Count of Trastamara Bastard to Alphonso the II King of Castile received the Crown as a reward of the good Service he had done to his Country against his Brother Peter the Cruel without any regard had to the House of La Cerda descended from Alphonso el Desheredado which to this day never enjoy'd any greater honour than that of Duke de Medina Celi Not long after the Portuguese conceiving a dislike of their King Ferdinand and his Daughter married to John King of Castile rejected her and her Uncle by the Father's side and gave the Crown to John a Knight of Calatrava and Bastard to an Uncle of Ferdinand their King About the beginning of this age the Swedes deposed their King Sigismund for being a Papist and made Charles his Uncle King Divers Examples of the like nature in England have bin already mentioned All these transportations of Crowns were Acts performed by Assemblies of the three Estates in the several Kingdoms and these Crowns are to this day enjoy'd under Titles derived from such as were thus brought in by the deposition or rejection of those who according ing to descent of blood had better Titles than the present Possessors The Acts therefore were lawful and good or they can have no Title at all and they who made them had a just power so to do If our Author can draw any advantage from the resemblance of Regality that he finds in the Roman Consuls and Athenian Archons I shall without envy leave him the enjoyment of it but I am much mistaken if that do not prove my assertion that those Governments were composed of the three simple species for if the Monarchical part was in them it cannot be denied that the Aristocratical was in the Senate or Areopagi and the Democratical in the People But he ought to have remembred that if there was something of Monarchical in those Governments when they are said to have bin Popular there was something of Aristocratical and Democratical in those that were called Regal which justifies my proposition on both sides and shews that the denomination was taken from the part that prevail'd and if this were not so the Governments of France Spain and Germany might be called Democracies and those of Rome and Athens Monarchies because the People have a part in the one and an image of Monarchy was preserved in the other If our Author will not allow the cases to be altogether equal I think he will find no other difference than that the Consuls and Archons were regularly made by the Votes of the consenting People and orderly resign'd their Power when the time was expir'd for which it was given whereas Tarquin Dionysius Agathocles Nabis Phalaris Cesar and almost all his Successors whom he takes for compleat Monarchs came in by violence fraud and corruption by the help of the worst men by the slaughter of the best and most commonly when the method was once establish'd by that of his Predecessor who if our Author say true was the Father of his Country and his also This was the root and foundation of the only Government that deserves praise this is that which stampt the divine character upon Agathocles Dionysius and Cesar and that had bestow'd the same upon Manlius Marius or Catiline if they had gain'd the Monarchies they affected But I suppose that such as God has bless'd with better judgment and a due regard to Justice and Truth will say that all those who have attained to such greatness as destroys all manner of good in the places where they have set up themselves by the most detestable Villanies came in by a backdoor and that such Magistrates as were
they fear which are the principal Arguments that perswade men to expose themselves to labours or dangers 'T is a folly to say that the vigilance and wisdom of the Monarch supplies the desect of care in others for we know that no men under the Sun were ever more void of both and all manner of virtue requir'd to such a work than very many Monarchs have bin And which is yet worse the strength and happiness of the People being frequently dangerous to them they have not so much as the will to promote it nay sometimes set themselves to destroy it Antient Monarchies afford us frequent examples of this kind and if we consider those of France and Turky which seem most to flourish in our Age the People will appear to be so miserable under both that they cannot sear any change of Governor or Government and all except a few Ministers are kept so far from the knowledg of or power in the management of Affairs that if any of them should fancy a possibility of something that might befal them worse than what they suffer or hope for that which might alleviate their misery they could do nothing towards the advancement of the one or prevention of the other Tacitus observes that in his time no man was able to write what passed Inscitia Reipublicae ut alienae They neglected the publick Affairs in which they had no part In the same Age it was said that the People who whilst they fought for their own Interests had bin invincible being enslaved were grown sordid idle base running after Stage-plays and Shows so as the whole strength of the Roman Armies consisted of Strangers When their Spirits were depressed by servitude they had neither courage to defend themselves nor will to fight for their wicked Masters and least of all to increase their Power which was destructive to themselves The same thing is found in all places Tho the Turk commands many vast Provinces that naturally produce as good Soldiers as any yet his greatest strength is in Children that do not know their Fathers who not being very many in number may perish in one Battel and the Empire by that means be lost the miserable Nations that groan under That Tyranny having neither courage power nor will to defend it This was the fate of the Mamalukes They had for the space of almost two hundred years domineer'd in Egypt and a great part of Asia but the people under them being weak and disaffected they could never recover the Defeat they received from Selim near Tripoli who pursuing his Victory in a few months utterly abolished their Kingdom Notwithstanding the present pride of France the numbers and warlike Inclinations of that People the bravery of the Nobility extent of Dominion convenience of Situation and the vast Revenues of their King his greatest Advantages have bin gained by the mistaken Counsels of England the valour of our Soldiers unhappily sent to serve him and the Strangers of whom the strength of his Armies consists which is so unsteady a support that many who are well versed in Affairs of this nature incline to think he subsists rather by little Arts and corrupting Ministers in Foreign Courts than by the Power of his own Armies and that some reformation in the Counsels of his Neighbours might prove sufficient to overthrow that Greatness which is grown formidable to Europe the same misery to which he has reduced his People rendring them as unable to defend him upon any change of Fortune as to defend their own Rights against him This proceeds not from any particular defect in the French Government but that which is common to all Absolute Monarchies And no State can be said to stand upon a steady Foundation except those whose strength is in their own Soldiery and the body of their own People Such as serve for Wages often betray their Masters in distress and always want the courage and industry which is found in those who fight for their own Interests and are to have a part in the Victory The business of Mercenaries is so to perform their duty as to keep their Employments and to draw profit from them but that is not enough to support the Spirits of men in extream dangers The Shepherd who is a hireling flies when the Thief comes and this adventitious help failing all that a Prince can reasonably expect from a disaffected and oppressed People is that they should bear the Yoak patiently in the time of his Prosperity but upon the change of his Fortune they leave him to shift for himself or join with his Enemies to avenge the Injuries they had received Thus did Alphonso and Ferdinand Kings of Naples and Lodovico Sforza Duke of Milan fall in the times of Charles the Eighth and Louis the Twelfth Kings of France The two first had bin false violent and cruel nothing within their Kingdom could oppose their fury but when they were invaded by a Foreign Power they lost all as Guicciardin says without breaking one Lance and Sforza was by his own mercenary Soldiers delivered into the hands of his Enemies I think it may be hard to find Examples of such as proceeding in the same way have had better Success But if it should so fall out that a People living under an Absolute Monarchy should through custom or fear of something worse if that can be not only suffer patiently but desire to uphold the Government neither the Nobility nor Commonalty can do any thing towards it They are strangers to all publick Concernments All things are govern'd by one or a few men and others know nothing either of Action or Counsel Filmer will tell us 't is no matter the profound Wisdom of the Prince provides for all But what if this Prince be a Child a Fool a superannuated Dotard or a Madman Or if he dos not fall under any of these extremities and possesses such a proportion of Wit Industry and Courage as is ordinarily seen in men how shall he supply the Office that indeed requires profound Wisdom and an equal measure of Experience and Valour 'T is to no purpose to say a good Council may supply his defects for it dos not appear how he should come by this Council nor who should oblige him to follow their advice If he be left to his own will to do what he pleases tho good advice be given to him yet his judgment being perverted he will always incline to the worst If a necessity be imposed upon him of acting according to the advice of his Council he is not that absolute Monarch of whom we speak nor the Government Monarchical but Aristocratical These are imperfect Fig-leave coverings of Nakedness It was in vain to give good counsel to Sardanapalus and none could defend the Assyrian Empire when he lay wallowing amongst his Whores without any other thought than of his Lusts. None could preserve Rome when Domitian's chief business was to kill Flies and that of Honorius to take
say Saisit le vif There can be therefore no such Law or it serves for nothing If there be Judges to interpret the Law no man is a King till judgment be given in his favour and he is not King by his own Title but by the Sentence given by them If there be none the Law is merely imaginary and every man may in his own case make it what he pleases He who has a Crown in his view and Arms in his hand wants nothing but success to make him a King and if he prosper all men are obliged to obey him 'T is a folly to say the matter is clear and needs no decision for every man knows that no Law concerning private Inheritances can be so exactly drawn but many Controversies will arise upon it that must be decided by a Power to which both Parties are subject and the disputes concerning Kingdoms are so much the more difficult because this Law is no where to be found and the more dangerous because the Competitors are for the most part more powerful Again this Law must either be general to all mankind or particular to each Nation If particular a matter of such importance requires good proof when where how and by whom it was given to every one But the Scriptures testifying to the contrary that God gave Laws to the Jews only and that no such thing as hereditary Monarchy according to proximity of Blood was prescribed by them we may safely say that God did never give any such Law to every particular nor to any Nation If he did not give it to any one he did not give it to all for every one is comprehended in all and if no one has it 't is impossible that all can have it or that it should be obligatory to all when no man knows or can tell when where and by what hand it was given nor what is the sense of it all which is evident by the various Laws and Customs of Nations in the disposal of hereditary Successions And no one of them that we know has to this day bin able to shew that the method follow'd by them is more according to nature than that of others If our Author pretend to be God's Interpreter and to give the solution of these doubts I may ask which of the five following ways are appointed by God and then we may examine Cases resulting from them 1. In France Turky and other places the Succession comes to the next Male in the streight eldest Line according to which the Son is preferr'd before the Brother of him who last enjoy'd the Crown as the present King of France before his Uncle the Duke of Orleans and the Son of the eldest before the Brothers of the eldest as in the case of Richard the second of England who was advanced preferably to all the Brothers of the black Prince his Father 2. Others keep to the Males of the reigning Family yet have more regard to the eldest Man than to the eldest Line and representation taking no place among them the eldest Man is thought to be nearest to the first King and a second Son of the person that last reigned to be nearer to him than his Grandchild by the eldest Son according to which Rule any one of the Sons of Edward the third remaining after his death should have bin preferr'd before Richard the second who was his Grandchild 3. In the two cases beforementioned no manner of regard is had to Females who being thought naturally uncapable of commanding men or performing the Functions of a Magistrate are together with their Descendents utterly excluded from the supreme as well as from the inferior Magistracies and in Turky France and other great Kingdoms have no pretence to any Title But in some places and particularly in England the advantages of Proximity belong to them as well as to Males by which means our Crown has bin transported to several Families and Nations 4. As in some places they are utterly rejected and in others received simply without any condition so those are not wanting where that of not marrying out of the Country or without the consent of the Estates is imposed of which Sweden is an Example 5. In some places Proximity of Blood is only regarded whether the Issue be legitimate or illegitimate in others Bastards are wholly excluded By this variety of Judgments made by several Nations upon this Point it may appear that tho it were agreed by all that the next in Blood ought to succeed yet such Contests would arise upon the interpretation and application of the general Rule as must necessarily be a perpetual Spring of irreconcilable and mortal Quarrels If any man say The Rule observed in England is that which God gave to Mankind I leave him first to dispute that point with the Kings of France and many others who can have no right to the Crowns they wear if it be admitted and in the next place to prove that our Ancestors had a more immediate communication with God and a more certain knowledge of his Will than others who for any thing we know may be of Authority equal to them but in the mean time we may rationally conclude that if there be such a Rule we have had no King in England for the space of almost a thousand years having not had one who did not come to the Crown by a most manifest violation of it as appears by the forecited Examples of William the first and second Henry the first Henry the second and his Children John Edward the third Henry the fourth Edward the fourth and his Children Henry the seventh and all that claim under any of them And if Possession or Success can give a right it will I think follow that Jack Straw Wat Tyler Perkin Warbeck or any other Rascal might have had it if he had bin as happy as bold in his Enterprize This is no less than to expose Crowns to the first that can seize them to destroy all Law and Rule and to render Right a slave to Fortune If this be so a late Earl of Pembroke whose understanding was not thought great judged rightly when he said his Grandfather was a wise man tho he could neither write nor read in as much as he resolved to follow the Crown tho it were upon a Coalstaff But if this be sufficient to make a wise man 't is pity the secret was no sooner discovered since many who for want of it liv'd and died in all the infamy that justly accompanies Knavery Cowardice and Folly might have gained the reputation of the most excellent Men in their several ages The bloody Factions with which all Nations subject to this sort of Monarchy have bin perpetually vexed might have bin prevented by throwing up cross or pile or by battel between the Competitors body to body as was done by Corbis and Orsua Cleorestes and Polinices Ironside and Canutus it being most unreasonable or rather impiously absurd for any to
against them and placed the only hopes of their safety in the publick Calamity and lawful Kings when they have fallen into the first degree of madness so as to assume a power above that which was allowed by the Law have in fury proved equal to the worst Usurpers Clonymus of Sparta was of this sort He became says Plutarch an Enemy to the City because they would not allow him the absolute Power he affected and brought Pyrrhus the fiercest of their Enemies with a mighty and excellently well disciplin'd Army to destroy them Vortigern the Britan call'd in the Saxons with the ruin of his own People who were incensed against him for his Lewdness Cruelty and Baseness King John for the like reasons offer'd the Kingdom of England to the Moors and to the Pope Peter the Cruel and other Kings of Castille brought vast Armies of Moors into Spain to the ruin of their own People who detested their Vices and would not part with their Privileges Many other examples of the like nature might be alledged and I wish our own experience did not too well prove that such designs are common Let him that doubts this examin the Causes of the Wars with Scotland in the Years 1639 1640 the slaughters of the Protestants in Ireland 1641 the whole course of Alliances and Treaties for the space of fourscore Years the friendship contracted with the French frequent Quarrels with the Dutch together with other circumstances that are already made too publick if he be not convinced by this he may soon see a man in the Throne who had rather be a Tributary to France than a lawful King of England whilst either Parliament or People shall dare to dispute his Commands insist upon their own Rights or defend a Religion inconsistent with that which he has espoused and then the truth will be so evident as to require no proof Grotius was never accused of dealing hardly with Kings or laying too much weight upon imaginary cases nevertheless amongst other reasons that in his opinion justify Subjects in taking arms against their Princes he alledges this propter immanem saevitiam and quando Rex in Populi exitium fertur in as much as it is contrary to and inconsistent with the ends for which Governments are instituted which were most impertinent if no such thing could be for that which is not can have no effect There are therefore Princes who seek the destruction of their People or none could be justly opposed on that account If King James was of another opinion I could wish the course of his Government had bin suted to it When he said that whilst he had the power of making Judges and Bishops he would make that to be Law and Gospel which best pleased him and filled those places with such as turned both according to his Will and Interests I must think that by overthrowing Justice which is the rule of civil and moral Actions and perverting the Gospel which is the light of the spiritual man he left nothing unattempted that he durst attempt by which he might bring the most extensive and universal evils upon our Nation that any can suffer This would stand good tho Princes never erred unless they were transported with some inordinate Lusts for 't is hard to find one that dos not live in the perpetual power of them They are naturally subject to the impulse of such appetites as well as others and whatever evil reigns in their nature is fomented by education 'T is the handle by which their Flatterers lead them and he that discovers to what Vice a Prince is most inclin'd is sure to govern him by rendring himself subservient In this consists the chief art of a Courtier and by this means it comes to pass that such Lusts as in private men are curbed by fear do not only rage as in a wild Beast but are perpetually inflamed by the malice of their own Servants their hatred to the Laws of God or Men that might restrain them increases in proportion with their Vices or their fears of being punished for them And when they are come to this they can set no limits to their fury and there is no extravagance into which they do not frequently fall But many of them do not expect these violent motives the perversity of their own nature carries them to the extremities of evil They hate Virtue for its own sake and virtuous men for being most unlike to themselves This Virtue is the dictate of Reason or the remains of Divine Light by which men are made beneficent and beneficial to each other Religion proceeds from the same spring and tends to the same end and the good of Mankind so intirely depends upon these two that no people ever enjoyed any thing worth desiring that was not the product of them and whatsoever any have suffer'd that deserves to be abhorr'd and feared has proceeded either from the defect of these or the wrath of God against them If any Prince therefore has bin an enemy to Virtue and Religion he must also have bin an enemy to Mankind and most especially to the People under him Whatsoever he dos against those that excel in Virtue and Religion tends to the destruction of the People who subsist by them I will not take upon me to define who they are or to tell the number of those that do this but 't is certain there have bin such and I wish I could say they were few in number or that they had liv'd only in past ages Tacitus dos not fix this upon one Prince but upon all that he writes of and to give his Readers a tast of what he was to write he says that Nobility and Honours were dangerous but that Virtue brought most certain destruction and in another place that after the slaughter of many excellent men Nero resolved to cut down Virtue it self and therefore kill'd Thraseas Patus and Bareas Soranus And whosoever examines the Christian or Ecclesiastical Histories will find those Princes to have bin no less enemies to Virtue and Religion than their Predecessors and consequently enemies to the Nations under them unless Religion and Virtue be things prejudicial or indifferent to Mankind But our Author may say these were particular cases and so was the slaughter of the Prophets and Apostles the crucifixion of Christ and all the Villanies that have ever bin committed yet they proceeded from a universal principle of hatred to all that is good exerting it self as far as it could to the ruin of mankind And nothing but the over-ruling Power of God who resolved to preserve to himself a People could set bounds to their Rage which in other respects had as full success as our Author or the Devil could have wished Dionysius his other example of Justice deserves observation More falshood lewdness treachery ingratitude cruelty baseness avarice impudence and hatred to all manner of Good was hardly ever known in a mortal Creature For this reason
wicked King says that he did Saevitiam ignaviae obtendere and we do not more certainly find that Cowards are the cruellest of men than that wickedness makes them Cowards that every man's fears bear a proportion with his guilt and with the number virtue and strength of those he has offended He who usurps a Power over all or abuses a Trust reposed in him by all in the highest measure offends all he fears and hates those he has offended and to secure himself aggravates the former Injuries When these are publick they beget a universal Hatred and every man desires to extinguish a Mischief that threatens ruin to all This will always be terrible to one that knows he has deserved it and when those he dreads are the body of the People nothing but a publick destruction can satisfy his rage and appease his fears I wish I could agree with Filmer in exempting multitudes from fears for they having seldom committed any injustice unless through fear would as far as human fragility permits be free from it Tho the Attick Ostracism was not an extreme Punishment I know nothing usually practised in any Commonwealth that did so much savour of injustice but it proceeded solely from a fear that one man tho in appearance virtuous when he came to be raised too much above his fellow Citizens might be tempted to invade the publick Liberty We do not find that the Athenians or any other free Cities ever injur'd any man unless through such a jealousy or the perjury of Witnesses by which the best Tribunals that ever were or can be establish'd in the world may be misled and no injustice could be apprehended from any if they did not fall into such fears But tho Multitudes may have fears as well as Tyrants the Causes and Effects of them are very different A People in relation to domestick Affairs can desire nothing but Liberty and neither hate or fear any but such as do or would as they suspect deprive them of that Happiness Their endeavours to secure that seldom hurt any except such as invade their Rights and if they err the mistake is for the most part discovered before it produce any mischief and the greatest that ever came that way was the death of one or a few men Their Hatred and desire of Revenge can go no farther than the sense of the Injury received or feared and is extinguished by the death or banishment of the Persons as may be gathered from the examples of the Tarquins Decemviri Cassius Melius and Manlius Capitolinus He therefore that would know whether the hatred and fear of a Tyrant or of a People produces the greater mischiefs needs only to consider whether it be better that the Tyrant destroy the People or that the People destroy the Tyrant or at the worst whether one that is suspected of affecting the Tyranny should perish or a whole People amongst whom very many are certainly innocent and experience shows that such are always first sought out to be destroy'd for being so Popular furies or fears how irregular or unjust soever they may be can extend no farther general Calamities can only be brought upon a People by those who are enemies to the whole Body which can never be the Multitude for they are that body In all other respects the fears that render a Tyrant cruel render a People gentle and cautious for every single man knowing himself to be of little power not only fears to do injustice because it may be revenged upon his Person by him or his Friends Kindred and Relations that suffers it but because it tends to the overthrow of the Government which comprehends all publick and private Concernments and which every man knows cannot subsist unless it be so easy and gentle as to be pleasing to those who are the best and have the greatest power and as the publick Considerations divert them from doing those Injuries that may bring immediate prejudice to the Publick so there are strict Laws to restrain all such as would do private Injuries If neither the People nor the Magistrates of Venice Switzerland and Holland commit such extravagances as are usual in other places it dos not perhaps proceed from the temper of those Nations different from others but from a knowledg that whosoever offers an injury to a private person or attemps a publick mischief is exposed to the impartial and inexorable Power of the Law whereas the chief work of an absolute Monarch is to place himself above the Law and thereby rendring himself the Author of all the evils that the People suffer 't is absurd to expect that he should remove them SECT XXX A Monarchy cannot be well regulated unless the Powers of the Monarch are limited by Law OUr Author's next step is not only to reject Popular Governments but all such Monarchies as are not absolute for if the King says he admits the People to be his Companions he leaves to be a King This is the language of French Lackeys Valet de Chambre's Taylors and others like them in Wisdom Learning and Policy who when they fly to England for sear of a well-deserved Gally Gibet or Wheel are ready to say Il faut que le Roy soit absolu autrement il n'est point Roy. And finding no better men to agree with Filmer in this sublime Philosophy I may be pardoned if I do not follow them till I am convinced in these ensuing points 1. It seems absurd to speak of Kings admitting the Nobility or People to part of the Government for tho there may be and are Nations without Kings yet no man can conceive a King without a People These must necessarily have all the power originally in themselves and tho Kings may and often have a power of granting Honors Immunities and Privileges to private Men or Corporations he dos it only out of the publick Stock which he is entrusted to distribute but can give nothing to the people who give to him all that he can rightly have 2. 'T is strange that he who frequently cites Aristotle and Plato should unluckily acknowledg such only to be Kings as they call Tyrants and deny the name of King to those who in their opinion are the only Kings 3. I cannot understand why the Scripture should call those Kings whose Powers were limited if they only are Kings who are absolute or why Moses did appoint that the power of Kings in Israel should be limited if they resolved to have them if that limitation destroy'd the being of a King 4. Nor lastly how he knows that in the Kingdoms which have a shew of Popularity the Power is wholly in the King The first point was proved when we examined the beginning of Monarchies and found it impossible that there could be any thing of justice in them unless they were established by the common consent of those who were to live under them or that they could make any such establishment unless the right and power
most opposite to his Maxims He lived says he in Henry the third's time since Parliaments were instituted as if there had bin a time when England had wanted them or that the establishment of our Liberty had bin made by the Normans who if we will believe our Author came in by force of Arms and oppressed us But we have already proved the Essence of Parliaments to be as antient as our Nation and that there was no time in which there were not such Councils or Assemblies of the People as had the power of the whole and made or unmade such Laws as best pleased themselves We have indeed a French word from a People that came from France but the Power was always in our selves and the Norman Kings were obliged to swear they would govern according to the Laws that had bin made by those Assemblies It imports little vvhether Bracton lived before or after they came amongst us His vvords are Omnes sub eo ipse sub nullo sed tantum sub Deo All are under him and he under none but God only If he offend since no Writ can go out against him their Remedy is by petitioning him to amend his Faults which if he will not do it is punishment enough for him to expect God as an avenger Let none presume to look into his Deeds much less to oppose him Here is a mixture of Sense and Nonsense Truth and Falshood the vvords of Bracton vvith our Author's foolish Inferences from them Bracton spoke of the politick capacity of the King vvhen no Law had forbidden him to divide it from his natural He gave the name of King to the sovereign Power of the Nation as Jacob called that of his Descendents The Scepter vvhich he said should not depart from Judah till Shiloh came tho all men know that his Race did not reign the third part of that time over his own Tribe nor full fourscore years over the whole Nation The same manner of speech is used in all parts of the world Tertullian under the name of Cesar comprehended all magistratical Power and imputed to him the Acts of which in his person he never had any knowledg The French say their King is always present sur son lit de justice in all the Sovereign Courts of the Kingdom which are not easily numbred and that Maxim could have in it neither sense nor truth if by it they meant a Man who can be but in one place at one time and is always comprehended within the Dimensions of his own Skin These things could not be unknown to Bracton the like being in use amongst us and he thought it no offence so far to follow the dictates of Reason prohibited by no Law as to make a difference between the invisible and omnipresent King who never dies and the Person that wears the Crown whom no man without the guilt of Treason may endeavour to kill since there is an Act of Parliament in the case I will not determine whether he spoke properly or no as to England but if he did not all that he said being upon a false supposition is nothing to our purpose The same Bracton says the King doth no wrong in as much as he doth nothing but by Law The Power of the King is the Power of the Law a power of right not of wrong Again If the King dos injustice he is not King In another place he has these words The King therefore ought to exercise the Power of the Law as becomes the Vicar and Minister of God upon Earth because that Power is the Power of God alone but the Power of doing wrong is the Power of the Devil and not of God And the King is his Minister whose Work he dos Whilst he dos Justice he is the Vicar of the Eternal King but if he deflect from it to act unjustly he is the Minister of the Devil He also says that the King is singulis major universis minor and that he who is in justitia exequenda omnibus major in justitia recipienda cuilibet ex plebe fit aequalis I shall not say Bracton is in the right when he speaks in this manner but 't is a strange impudence in Filmer to cite him as a Patron of the absolute Power of Kings who dos so extremely depress them But the grossest of his follies is yet more pardonable than his detestable fraud in falsifying Bracton's words and leaving out such as are not for his purpose which shew his meaning to be directly contrary to the sense put upon them That this may appear I shall set down the words as they are found in Bracton Ipse autem Rex non debet esse sub homine sed sub Deo sub Lege quia Lex facit Regem Attribuat ergo Rex Legi quod Lex attribuit ei id est dominationem potestatem Non est enim Rex ubi dominatur volunt as non Lex quod sub Lege esse debeat cum sit Dei vicarius evidenter apparet If Bracton therefore be a competent Judg the King is under the Law and he is not a King nor God's Vicegerent unless he be so and we all know how to proceed with those who being under the Law offend against it For the Law is not made in vain In this case something more is to be done than petitioning and 't is ridiculous to say that if he will not amend 't is punishment enough for him to expect God an Avenger for the same may be said of all Malefactors God can sufficiently punish Thieves and Murderers but the future Judgment of which perhaps they have no belief is not sufficient to restrain them from committing more Crimes nor to deter others from following their example God was always able to punish Murderers but yet by his Law he commands man to shed the blood of him who should shed man's blood and declares that the Land cannot be purged of the Guilt by any other means He had Judgments in store for Jeroboam Ahab and those that were like them but yet he commanded that according to that Law their Houses should be destroy'd from the earth The dogs lick'd up the blood of Ahab where they had licked that of Naboth and eat Jezebel who had contrived his murder But says our Author we must not look into his deeds much less oppose them Must not David look into Saul's deeds nor oppose them Why did he then bring together as many men as he could to oppose and make foreign Alliances against him even with the Moabites and the accursed Philistins Why did Jehu not only destroy Ahab's house but kill the King of Judah and his forty Brothers only for going to visit his Children Our Author may perhaps say because God commanded them But if God commanded them to do so he did not command them and all mankind not to do so and if he did not forbid they have nothing to restrain them from
resolved upon by another Power The Jewish Doctors generally agree that the Kings of Judah could make no Law because there was a curse denounced against those who should add to or detract from that which God had given by the hand of Moses that they might sit in Judgment with the High Priest and Sanhedrin but could not judg by themselves unless the Sanhedrin did plainly fail of performing their duty Upon this account Maimonides excuses David for commanding Solomon not to suffer the grey hairs of Joab to go down to the grave in peace and Solomon for appointing him to be kill'd at the soot of the Altar for he having killed Abner and Amasa and by those actions shed the blood of war in time of peace the Sanhedrin should have punished him but being protected by favour or power and even David himself fearing him Solomon was put in mind of his duty which he performed tho Joab laid hold upon the horns of the Altar which by the express words of the Law gave no protection to wilful Murderers The use of the military Sword amongst them was also moderated Their Kings might make War upon the seven accursed Nations that they were commanded to destroy and so might any other man for no peace was to be made with them but not against any other Nation without the assent of the Sanhedrin And when Amaziah contrary to that Law had foolishly made war upon Joash King of Israel and thereby brought a great slaughter upon Judah the Princes that is the Sanhedrin combined against him pursued him to Lachish and killed him there The Legislative Power of Sparta was evidently in the People The Laws that go under the name of Lycurgus were proposed by him to the general Assembly of the People and from them received their Authority But the discipline they contained was of such efficacy for framing the minds of men to virtue and by banishing Silver and Gold they so far banished all manner of Crimes that from the institution of those Laws to the times of their Corruption which was more than eight hundred years we hardly find that three men were put to death of whom two were Kings so that it seems difficult to determine where the power of judging did reside tho 't is most probable considering the nature of their Government that it was in the Senate and in Cases extraordinary in the Ephori with a right of appealing to the People Their Kings therefore could have little to do with the Sword of Justice neither the Legislative nor the Judicial Power being any ways in them The military Sword was not much more in their Power unless the excellency of their Virtues gave them the credit of perswading when the Law denied the right of commanding They were obliged to make war against those and those only who were declared Enemies by the Senate and Ephori and in the manner place and time they directed so that Agesilaus tho carrying on a glorious War in Persia no sooner received the Parchment Roll wherein he was commanded by the Ephori to come home for the defence of his own Country than he immediately returned and is on that account called by no less a man than Xenophon a good and faithful King rendring obedience to the Laws of his Country By this it appears that there are Kings who may be feared by those that do ill and not by such as do well for having no more power than what the Law gives and being obliged to execute it as the Law directs they cannot depart from the Precept of the Apostle My own actions therefore or the sense of my own guilt arising from them is to be the measure of my fear of that Magistrate who is the Minister of God and not his Power The like may be said of almost all the Nations of the world that have had any thing of Civil Order amongst them The supreme Magistrate under what name soever he was known whether King Emperor Asymnetes Suffetes Consul Dictator or Archon has usually a part assigned to him in the administration of Justice and making War but that he may know it to be assigned and not inherent and so assigned as to be employ'd for the publick good not to his own profit or pleasure it is circumscribed by such rules as he cannot safely transgress This is above all seen in the German Nations from whom we draw our Original and Government and is so well described by Tacitus in his treatise of their Customs and Manners that I shall content my self to refer to it and to what I have cited from him in the former part of this Work The Saxons coming into our Country retain'd to themselves the same rights They had no Kings but such as were set up by themselves and they abrogated their Power when they pleased Off a acknowledged that he was chosen for the fence of their Liberty not from his own merit but by their favour and in the Conventus Pananglicus at which all the chief men as well Secular as Ecclesiastical were present it was decreed by the King Archbishops Bishops Abbots Dukes and Senators that the Kings should be chosen by the Priests and by the Elders of the People In pursuance of which Egbert who had no right to the succession was made King Ethelwerd was chosen in the same manner by the consent of all Ethelwolf a Monk for want of a better was advanced to the same Honor. His Son Alfred tho crowned by the Pope and marrying without the consent of the Nobility and Kingdom against their Customs and Statutes acknowledged that he had received the Crown from the bounty of the Princes Elders and People and in his Will declared that he left the People as he had found them free as the inward thoughts of Man His Son Edward was elected to be his Successor Ethelstan tho a Bastard and without all Title was elected by the consent of the Nobility and People Eadred by the same Authority was elected and preferred before the Sons of Edmond his Predecessor Edwin tho rightly chosen was deposed for his ill life and Edgar elected King by the will of God and consent of the People But he also was deprived of the Crown for the Rape of a Nun and after seven years restored by the whole People coram omni multitudine populi Anglorum Ethelred who is said to have bin cruel in the beginning wretched in the course and infamous in the end of his Reign was deposed by the same power that had advanced him Canutus made a Contract with the Princes and the whole People and thereupon was by general consent crown'd King over all England After him Harold was chosen in the usual manner He being dead a Message was sent to Hardi Canute with an offer of the Crown which he accepted and accordingly was received Edward the Consessor was elected King with the consent of the Clergy
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
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
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
the Moors than an old Astrologer or a Child Alphonso and Sancho being dead Alphonso El Desheredado laid claim to the Crown but it was given to Ferdinand the Fourth and Alphonso with his descendents the Dukes de Medina Celi remain excluded to this day Peter sirnamed the Cruel was twice driven out of the Kingdom and at last killed by Bertrand to Guesclin Constable of France or Henry Count of Trastamara his Bastard-Brother who was made King without any regard to the Daughters of Peter or to the House of La Cerda Henry the Fourth lest a Daughter called Joan whom he declared his Heir but the Estates gave the Kingdom to Isabel his Sister and crowned her with Ferdinand of Arragon her Husband Joan Daughter to this Ferdinand and Isabel salling mad the Estates committed the care of the Government to her Father Ferdinand and after his death to Charles her Son But the French have taught us that when a King dies his next Heir is really King before he take his Oath or be crowned From them we learn that Le mort saisit le vif And yet I know no History that proves more plainly than theirs that there neither is nor can be in any man a right to the Government of a People which dos not receive its being manner and measure from the Law of that Country which I hope to justify by four Reasons 1. When a King of Pharamond's Race died the Kingdom was divided into as many parcels as he had Sons which could not have bin if one certain Heir had bin assigned by nature for he ought to have had the whole and if the Kingdom might be divided they who inhabited the several parcels could not know to whom they owed obedience till the division was made unless he who was to be King of Paris Metz Soissons or Orleans had worn the Name of his Kingdom upon his forehead But in truth if there might be a division the Doctrine is false and there was no Lord of the whole This wound will not be healed by saying The Father appointed the division and that by the Law of nature every man may dispose of his own as he thinks fit for we shall soon prove that the Kingdom of France neither was nor is disposeable as a Patrimony or Chattel Besides if that Act of Kings had bin then grounded upon the Law of nature they might do the like at this day But the Law by which such Divisions were made having bin abrogated by the Assembly of Estates in the time of Hugh Capet and never practised since it follows that they were grounded upon a temporary Law and not upon the Law of Nature which is eternal If this were not so the pretended certainty could not be for no man could know to whom the last King had bequeathed the whole Kingdom or parcels of it till the Will were opened and that must be done before such Witnesses as may deserve credit in a matter of this importance and are able to judg whether the Bequest be rightly made for otherwise no man could know whether the Kingdom was to have one Lord or many nor who he or they were to be which intermission must necessarily subvert their Polity and this Doctrine But the truth is the most Monarchical men among them are so far from acknowledging any such right to be in the King of alienating bequeathing or dividing the Kingdom that they do not allow him the right of making a Will and that of the last King Lewis the 13th touching the Regency during the minority of his Son was of no effect 2. This matter was made more clear under the second race If a Lord had bin assigned to them by nature he must have bin of the Royal Family But Pepin had no other Title to the Crown except the merits of his Father and his own approved by the Nobility and People who made him King He had three sons the eldest was made King of Italy and dying before him lest a Son called Bernard Heir of that Kingdom The Estates of France divided what remained between Charles the Great and Carloman The last of these dying in few years left many Sons but the Nobility made Charles King of all France and he dispossessed Bernard of the Kingdom of Italy inherited from his Father so that he also was not King of the whole before the expulsion of Bernard the Son of his elder Brother nor of Aquitain which by inheritance should have belonged to the Children of his younger Brother any otherwise than by the will of the Estates Lewis the Debonair succeeded upon the same title was deposed and put into a Monastery by his three Sons Lothair Pepin and Lewis whom he had by his first Wife But tho these lest many Sons the Kingdom came to Charles the Bald. The Nobility and People disliking the eldest Son of Charles gave the Kingdom to Lewis le Begue who had a legitimate Son called Charles le Simple and two Bastards Lewis and Carloman who were made Kings Carloman had a Son called Lewis le faineant he was made King but afterwards deposed for his vicious Lise Charles le Gros succeeded him but for his ill Government was also deposed and Odo who was a stranger to the Royal Blood was made King The same Nobility that had made five Kings since Lewis le Begue now made Charles le Simple King who according to his name was entrapped at Peronne by Ralph Duke of Burgundy and forced to resign his Crown leaving only a Son called Lewis who fled into England Ralph being dead they took Lewis sirnamed Outremer and placed him in the Throne he had two Sons Lothair and Charles Lothair succeeded him and died without Issue Charles had as fair a title as could be by Birth and the Estates confessed it but their Ambassadors told him that he having by an unworthy Life render'd himself unworthy of the Crown they whose principal care was to have a good Prince at the head of them had chosen Hugh Capet and the Crown continues in his race to this day tho not altogether without interruption Robert Son to Hugh Capet succeeded him He left two Sons Robert and Henry but Henry the younger Son appearing to the Estates of the Kingdom to be more fit to reign than his elder Brother they made him King Robert and his descendents continuing Dukes of Burgundy only for about ten Generations at which time his Issue Male failing that Dutchy returned to the Crown during the Life of King John who gave it to his second Son Philip for an Apannage still depending upon the Crown The same Province of Burgundy was by the Treaty of Madrid granted to the Emperor Charles the fifth by Francis the first but the People resused to be alienated and the Estates of the Kingdom approved their refusal By the same Authority Charles the 6th was removed from the Government when he appeared to be mad and other examples of a like nature
must submit Contests will in the like manner arise concerning successions to Crowns how exactly soever they be disposed by Law For tho every one will say that the next ought to succeed yet no man knows who is the next which is too much verified by the bloody decisions of such disputes in many parts of the world and he that says the next in blood is actually King makes all questions thereupon arising impossible to be otherwise determined than by the Sword the pretender to the right being placed above the judgment of man and the Subjects for any thing I know obliged to believe serve and obey him if he says he has it For otherwise if either every man in particular or all together have a right of judging his title it can be of no value till it be adjudged I confess that the Law of France by the utter exclusion of Females and their descendents dos obviate many dangerous and inextricable difficulties but others remain which are sufficient to subvert all the Polity of that Kingdom if there be not a power of judging them and there can be none if it be true that Le mort saisit le vif Not to trouble my self with seigned cases that of Legitimation alone will suffice 'T is not enough to say that the Children born under marriage are to be reputed legitimate for not only several Children born of Joan Daughter to the King of Portugal Wife to Henry the Fourth of Castille during the time of their Marriage were utterly rejected as begotten in Adultery but also her Daughter Joan whom the King during his life and at the hour of his death acknowledged to have bin begotten by him and the only Title that Isabel who was married to Ferdinand of Arragon had to the Crown of Spain was derived from their rejection It would be tedious and might give offence to many great Persons if I should relate all the dubious cases that have bin or still remain in the World touching matters of this nature but the Lawyers of all Nations will testify that hardly any one point comes before them which affords a greater number of difficult Cases than that of Marriages and the Legitimation of Children upon them and Nations must be involved in the most inextricable difficulties if there be not a power somewhere to decide them which cannot be if there be no intermission and that the next in blood that is he who says he is the next be immediately invested with the right and power But surely no people has bin so careless of their most important Concernments to leave them in such uncertainty and simply to depend upon the humour of a man or the faith of women who besides their other Frailties have bin often accused of supposititious Births and mens passions are known to be so violent in relation to Women they love or hate that none can safely be trusted with those Judgments The virtue of the best would be exposed to a temptation that flesh and blood can hardly resist and such as are less perfect would follow no other rule than the blind impulse of the passion that for the present reigns in them There must therefore be a judg of such disputes as may in these cases arise in every Kingdom and tho 't is not my business to determine who is that judg in all places yet I may justly say that in England it is the Parliament If no inferiour Authority could debar Ignotus Son to the Lady Rosse born under the Protection from the inheritance of a private Family none can certainly assume a power of disposing of the Crown upon any occasion No Authority but that of the Parliament could legitimate the Children of Catherine Swinford with a proviso not to extend to the inheritance of the Crown Others might say if they were lawfully begotten they ought to inherit every thing and nothing if they were not But the Parliament knew how to limit a particular favour and prevent it from extending to a publick mischief Henry the Eighth took an expeditious way of obviating part of the Controversies that might arise from the multitude of his Wives by cutting off the heads of some as soon as he was weary of them or had a mind to take another but having bin hinder'd from dealing in the same manner with Catherine by the greatness of her birth and kindred he left such as the Parliament only could resolve And no less power would ever have thought of making Mary and Elizabeth capable of the succession when according to ordinary rules one of them must have bin a Bastard and it had bin absurd to say that both of them were immediately upon the death of their Predecessors possess'd of the Crown if an Act of Parliament had not conferred the right upon them which they could not have by birth But the Kings and Princes of England have not bin of a temper different from those of other Nations and many Examples may be brought of the like occasions of dispute happening every where and the like will probably be for ever which must necessarily introduce the most mischievous confusions and expose the Titles which as is pretended are to be esteemed most sacred to be overthrown by violence and fraud if there be not in all places a Power of deciding the controversies that arise from the uncertainty of Titles according to the respective Laws of every Nation upon which they are grounded No man can be thought to have a just Title till it be so adjudged by that power This judgment is the first step to the Throne The Oath taken by the King obliges him to observe the Laws of his Country and that concerning the succession being one of the principal he is obliged to keep that part as well as any other SECT XIX The greatest Enemy of a just Magistrate is he who endeavours to invalidate the Contract between him and the People or to corrupt their Manners 'T Is not only from Religion but from the Law of Nature that we learn the necessity of standing to the agreements we make and he who departs from the principle written in the hearts of men Pactis standum seems to degenerate into a beast Such as had virtue tho without true religion could tell us as a brave and excellent Grecian did that it was not necessary for him to live but it was necessary to preserve his Heart from deceit and his Tongue from falshood The Roman Satyrist carries the same Notion to a great height and affirms that tho the worst of Tyrants should command a man to be false and persar'd and back his injunction with the utmost of Torments he ought to prefer his integrity before his life And tho Filmer may be excused if he often mistake in matters of Theology yet his Inclinations to Rome which he prefers before Geneva might have led him to the Principles in which the honest Romans lived if he had not observed that such Principles as make men
if there be any inconvenience in this 't is because they do not meet so frequently as the Law requires or by sinister means are interrupted in their sitting But nothing can be more absurd than to say that because the King dos not call Parliaments as the Law and his Oath requires that power should accrue to him which the Law and the consent of the Nation has placed in them There is also such a thing in the Law as a general or particular Pardon and the King may in some degree be entrusted with the power of giving it especially for such crimes as merely relate to himself as every man may remit the injuries done to himself but the confession of Edward the third That the Oath of the Crown had not bin kept by reason of the grant of Pardons contrary to Statutes and a new Act made that all such Charters of Pardon from henceforth granted against the Oath of the Crown and the said Statutes should be held for none demonstrates that this power was not in himself but granted by the Nation and to be executed according to such rules as the Law prescribed and the Parliament approved Moreover there having bin many and sometimes bloody contests for the Crown upon which the Nation was almost equally divided and it being difficult for them to know or even for us who have all the parties before us to judg which was the better side it was understood that he who came to be crown'd by the consent of the People was acceptable to all and the question being determined it was no way fit that he should have a liberty to make use of the publick Authority then in his hands to revenge such personal iniuries as he had or might suppose to have received which might raise new and perhaps more dangerous troubles if the Authors of them were still kept in fear of being prosecuted and nothing could be more unreasonable than that he should emplov his power to the destruction of those who had consented to make him King This made it a matter of course for a King as soon as he was crown'd to issue out a general Pardon which was no more than to declare that being now what he was not before he had no enemy upon any former account For this reason Lewis the twelfth of France when he was incited to revenge himself against those who in the reign of his Predecessor Charles the eighth had caused him to be imprisoned with great danger of his life made this answer That the King of France did not care to revenge the injuries done to the Duke of Orleans and the last King of Sweden seemed no otherwise to remember who had opposed the Queens Abdication and his Election than by conferring honours upon them because he knew they were the best men of the Nation and such as would be his friends when they should see how he would govern in which he was not deceived But lest all those who might come to the Crown of England should not have the same prudence and generosity the Kings were obliged by a Custom of no less force than a Law immediately to put an end to all disputes and the inconveniences that might arise from them This did not proceed from the bounty of the Prerogative which I think is nonsense for tho he that enjoys the Prerogative may have bounty the Prerogative can have none but from common sense from his obligation and the care of his own safety and could have no other effect in Law than what related to his person as appears by the forementioned Statute Pardon 's granted by Act of Parliament are of another nature For as the King who has no other power than by Law can no otherwise dispense with the crimes committed against the Laws than the Law dos enable him the Parliament that has the power of making Laws may intirely abolish the crimes and unquestionably remit the punishment as they please Tho some words of Aristotle's Ethicks are without any coherence shuffled together by our Author with others taken out of his Politicks I do not much except against them No Law made by man can be perfect and there must be in every Nation a power of correcting such defects as in time may arise or be discovered This power can never be so rightly placed as in the same hand that has the right of making Laws whether in one person or in many If Filmer therefore can tell us of a place where one man woman or child however he or she be qualified has the power of making Laws I will acknowledg that not only the hard Cases but as many others as he pleases are referr'd to his or her judgment and that they may give it whether they have any understanding of what they do or not whether they be drunk or sober in their senses or stark mad But as I know no such place and should not be much concerned for the sufferings of a People that should bring such misery upon themselves as must accompany an absolute dependence upon the unruly will of such a creature I may leave him to seek it and rest in a perfect assurance that he dos not speak of England which acknowledges no other Law than its own and instead of receiving any from Kings dos to this day obey none but such as have bin made by our Ancestors or our selves and never admitted any King that did not swear to observe them And if Aristotle deserve credit the power of altering mitigating explaining or correcting the Laws of England is only in the Parliament because none but the Parliament can make them SECT XXIII Aristotle proves that no man is to be entrusted with an absolute Power by shewing that no one knows how to execute it but such a man as is not to be found OUR Author having falsly cited and perverted the sense of Aristotle now brings him in saying That a perfect Kingdom is that wherein the King rules all according to his own will But tho I have read his books of Government with some attention I can find no such thing in them unless the word which signifies mere or absolute may be justly translated into perfect which is so far from Aristotle's meaning that he distinguishes the absolute or despotical Kingdoms from the Legitimate and commending the latter gives no better name than that of barbarous to the first which he says can agree only with the nature of such Nations as are base and stupid little differing from Beasts and having no skill to govern or courage to defend themselves must resign all to the will of one that will take care of them Yet even this cannot be done unless he that should take that care be wholly exempted from the vices which oblige the others to stand in need of it for otherwise 't is no better than if a Sheep should undertake to govern Sheep or a Hog to command Swine Aristotle plainly saying That as men are by nature
SECT XXVI Tho the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law I Confess that no Law can be so perfect to provide exactly for every case that may fall out so as to leave nothing to the discretion of the Judges who in some measure are to interpret them But that Laws or Customs are ever few or that the paucity is the reason that they cannot give special rules or that Judges do resort to those principles or Common Law Axioms whereupon former judgments in cases something alike have bin given by former Judges who all receive their Authority from the King in his right to give Sentence I utterly deny and affirm 1. That in many places and particularly in England the Laws are so many that the number of them has introduced an uncertainty and confusion which is both dangerous and troublesom and the infinite variety of adjudged cases thwarting and contradicting each other has render'd these difficulties inextricable Tacitus imputes a great part of the miseries suffer'd by the Romans in his time to this abuse and tells us that the Laws grew to be innumerable in the worst and most corrupt state of things and that Justice was overthrown by them By the same means in France Italy and other places where the Civil Law is rendred municipal Judgments are in a manner arbitrary and tho the intention of our Laws be just and good they are so numerous and the volumes of our Statutes with the interpretations and adjudged Cases so vast that hardly any thing is so clear and fixed but men of wit and learning may find what will serve for a pretence to justify almost any judgment they have a mind to give Whereas the Laws of Moses as to the Judicial part being short and few Judgments were easy and certain and in Switzerland Sweden and some parts of Denmark the whole volume that contains them may be read in few hours and by that means no injustice can be done which is not immediately made evident 2. Axioms are not rightly grounded upon judged Cases but Cases are to be judged according to Axioms the certain is not proved by the uncertain but the uncertain by the certain and every thing is to be esteemed uncertain till it be proved to be certain Axioms in Law are as in Mathematicks evident to common sense and nothing is to be taken for an Axiom that is not so Euclid dos not prove his Axioms by his Propositions but his Propositions which are abstruse by such Axioms as are evident to all The Axioms of our Law do not receive their Authority from Coke or Hales but Coke and Hales deserve praise for giving judgment according to such as are undeniably true 3. The Judges receive their Commissions from the King and perhaps it may be said that the Custom of naming them is grounded upon a right with which he is entrusted but their power is from the Law as that of the King also is For he who has none originally in himself can give none unless it be first conserred upon him I know not how he can well perform his Oath to govern according to Law unless he execute the power with which he is entrusted in naming those men to be Judges whom in his conscience and by the advice of his Council he thinks the best and ablest to perform that Office But both he and they are to learn their duty from that Law by which they are and which allots to every one his proper work As the Law intends that men should be made Judges for their integrity and knowledg in the Law and that it ought not to be imagined that the King will break his trust by chusing such as are not so till the violation be evident nothing is more reasonable than to intend that the Judges so qualified should instruct the King in matters of Law But that he who may be a child over aged or otherwise ignorant and uncapable should instruct the Judges is equally absurd as for a blind man to be a guide to those who have the best eyes and so abhorrent from the meaning of the Law that the Judges as I said before are sworn to do justice according to the Laws without any regard to the King's words letters or commands If they are therefore to act according to a set rule from which they may not depart what command soever they receive they do not act by a power from him but by one that is above both This is commonly confess'd and tho some Judges have bin found in several ages who in hopes of reward and preferment have made little account of their Oath yet the success that many of them have had may reasonably deter others from following their example and if there are not more instances in this kind no better reason can be given than that Nations do frequently fail by being too remiss in asserting their own rights or punishing offenders and hardly ever err on the severer side 4. Judgments are variously given in several States and Kingdoms but he who would find one where they lie in the breast of the King must go at least as far as Marocco Nay the Ambassador who was lately here from that place denied that they were absolutely in him However 't is certain that in England according to the Great Charter Judgments are passed by equals no man can be imprison'd disseiz'd of his Freehold depriv'd of Life or Limb unless by the sentence of his Peers The Kings of Judah did judg and were judged and the Judgments they gave were in and with the Sanhedrim In England the Kings do not judg but are judged and Bracton says That in receiving justice the King is equal to another man which could not be if judgments were given by him and he were exempted from the judgment of all by that Law which has put all judgments into the hands of the People This power is executed by them in grand or petty Juries and the Judges are assistants to them in explaining the difficult points of the Law in which 't is presumed they should be learned The strength of every judgment consists in the verdict of these Juries which the Judges do not give but pronounce or declare and the same Law that makes good a verdict given contrary to the advice or direction of the Judges exposes them to the utmost penalties if upon their own heads or a command from the King they should presume to give a Sentence without or contrary to a Verdict and no pretensions to a power of interpreting the Law can exempt them if they break it The power also with which the Judges are entrusted is but of a moderate extent and to be executed bona fide Prevarications are capital as they proved to Tresilian Empson Dudley and many others Nay even in special Verdicts the Judges are only assistants to the Juries who find it specially
to their Country I say that all Nations amongst whom Virtue has bin esteemed have had a great regard to them and their Posterity And tho Kings when they were made have bin intrusted by the Saxons and other Nations with a Power of ennobling those who by services render'd to their Country might deserve that Honor yet the body of the Nobility was more antient than such for it had bin equally impossible to take Kings according to Tacitus out of the Nobility if there had bin no Nobility as to take Captains for their Virtue if there had bin no Virtue and Princes could not without breach of that trust confer Honors upon those that did not deserve them which is so true that this practice was objected as the greatest crime against Vortigern the last and the worst of the British Kings and tho he might pretend according to such cavils as are usual in our time that the judgment of those matters was reserred to him yet the world judged of his Crimes and when he had render'd himself odious to God and men by them he perished in them and brought destruction upon his Country that had suffer'd them too long As among the Turks and most of the Eastern Tyrannies there is no Nobility and no man has any considerable advantage above the common People unless by the immediate favour of the Prince so in all the legal Kingdoms of the North the strength of the Government has always bin placed in the Nobility and no better defence has bin found against the encroachments of ill Kings than by setting up an Order of men who by holding large Territories and having great numbers of Tenants and Dependents might be able to restrain the exorbitances that either the Kings or the Commons might run into For this end Spain Germany France Poland Denmark Sweeden Scotland and England were almost wholly divided into Lordships under several names by which every particular Possessor owed Allegiance that is such an Obedience as the Law requires to the King and he reciprocally swore to perform that which the same Law exacted from him When these Nations were converted to the Christian Religion they had a great veneration for the Clergy and not doubting that the men whom they esteemed holy would be just thought their Liberties could not be better secured than by joining those who had the direction of their Consciences to the Noblemen who had the command of their Forces This succeeded so well in relation to the defence of the publick Rights that in all the forementioned States the Bishops Abbots c. were no less zealous or bold in defending the publick Liberty than the best and greatest of the Lords And if it were true that things being thus established the Commons did neither personally nor by their Representatives enter into the General Assemblies it could be of no advantage to Kings for such a Power as is above-mentioned is equally inconsistent with the absolute Sovereignty of Kings if placed in the Nobility and Clergy as if the Commons had a part If the King has all no other man nor number of men can have any If the Nobility and Clergy have the power the Commons may have their share also But I affirm that those whom we now call Commons have always had a part in the Government and their place in the Councils that managed it for if there was a distinction it must have bin by Patent Birth or Tenure As for Patents we know they began long after the coming of the Normans and those that now have them cannot pretend to any advantage on account of Birth or Tenure beyond many of those who have them not Nay besides the several Branches of the Families that now enjoy the most antient Honors which consequently are as noble as they and some of them of the elder Houses we know many that are now called Commoners who in antiquity and eminency are no way inferior to the chief of the titular Nobility and nothing can be more absurd than to give a prerogative of Birth to Cr-v-n T-ft-n H-ae B-nn-t Osb-rn and others before the Cliftons Hampdens Courtneys Pelhams St. Johns Baintons Wilbrahams Hungerfords and many others And if the Tenures of their Estates be consider'd they have the same and as antient as any of those who go under the names of Duke or Marquess I forbear to mention the sordid ways of attaining to Titles in our days but whoever will take the pains to examine them shall find that they rather defile than ennoble the possessors And whereas men are truly ennobled only by Virtue and respect is due to such as are descended from those who have bravely serv'd their Country because it is presumed till they shew the contrary that they will resemble their Ancestors these modern Courtiers by their Names and Titles frequently oblige us to call to mind such things as are not to be mentioned without blushing Whatever the antient Noblemen of England were we are sure they were not such as these And tho it should be confess'd that no others than Dukes Marquesses Earls Viscounts and Barons had their places in the Councils mentioned by Cesar and Tacitus or in the great Assemblies of the Saxons it could be of no advantage to such as now are called by those names They were the titles of Offices conserred upon those who did and could best conduct the people in time of War give Counsel to the King administer Justice and perform other publick duties but were never made hereditary except by abuse much less were they sold for money or given as recompences of the vilest services If the antient order be totally inverted and the ends of its institution perverted they who from thence pretend to be distinguished from other men must build their claim upon something very different from Antiquity This being sufficient if I mistake not to make it appear that the antient Councils of our Nation did not consist of such as we now call Noblemen it may be worth our pains to examine of what sort of men they did consist And tho I cannot much rely upon the credit of Camden which he has forfeited by a great number of untruths I will begin with him because he is cited by our Author If we will believe him That which the Saxons called Wittenagemot we may justly name Parliament which has the supreme and most sacred Authority of making abrogating and interpreting Laws and generally of all things relating to the safety of the Commonwealth This Wittenagemot was according to William of Malmsbury The general meeting of the Senat and People and Sir Harry Spelman calls it The General Council of the Clergy and People In the Assembly at Calcuth it was decreed by the Archbishops Bishops Abbots Dukes Senators and the People of the Land Populo terrae that the Kings should be elected by the Priests and Elders of the People By these Offa Ina and others were made Kings and Alfred
according to the variety of times and other occurrences We have such footsteps remaining of the name of Baron as plainly shew the signification of it The Barons of London and the Cinq Ports are known to be only the Freemen of those places In the petty Court-Barons every man who may be of a Jury is a Baron These are Noblemen for there are noble Nations as well as noble men in Nations The Mammalukes accounted themselves to be all noble tho born slaves and when they had ennobled themselves by the use of Arms they look'd upon the noblest of the Egyptians as their slaves Tertullian writing not to some eminent men but to the whole People of Carthage calls them Antiquitate Nobiles Nobilitate felices Such were the Saxons ennobled by a perpetual application to those exercises that belong to Noblemen and an abhorrence to any thing that is vile and sordid Lest this should seem far fetch'd to those who please themselves with cavilling they are to know that the same General Councils are expressed by other Authors in other words They are called The General Council of the Bishops Noblemen Counts all the wise men Elders and People of the whole Kingdom in the time of Ina. In that of Edward the elder The Great Council of the Bishops Abbots Noblemen and People William of Malmsbury calls them The General Senat and Assembly of the People Sometimes they are in short called Clergy and People but all express the same power neither received from nor limitable by Kings who are always said to be chosen or made and sometimes deposed by them William the Norman found and left the Nation in this condition Henry the second John and Henry third who had nothing but what was conferred upon them by the same Clergy and People did so too Magna Charta could give nothing to the People who in themselves had all and only reduced into a small Volume the Rights which the Nation was resolved to maintain brought the King to confess they were perpetually inherent and time out of mind enjoyed and to swear that he would no way violate them if he did he was ipso facto excommunicated and being thereby declared to be an execrable perjur'd Person they knew how to deal with him This Act has bin confirmed by thirty Parliaments and the proceedings with Kings who have violated their Oaths as well before as after the time of Henry the third which have bin already mentioned are sufficient to shew that England has always bin governed by it self and never acknowledged any other Lord than such as they thought fit to set up SECT XXIX The King was never Master of the Soil THOSE who without regard to truth resolve to insist upon such points as they think may serve their designs when they find it cannot be denied that the powers before mentioned have bin exercised by the English and other Nations say that they were the concessions of Kings who being masters of the Soil might bestow parcels upon some Persons with such conditions as they pleased retaining to themselves the supreme dominion of the whole and having already as they think made them the Fountains of Honour they proceed to make them also the Fountains of Property and for proof of this alledg that all Lands tho held of mean Lords do by their Tenures at last result upon the King as the Head from whom they are enjoyed This might be of force if it were true but matters of the highest importance requiring a most evident proof we are to examine First if it be possible and in the next place if it be true 1. For the first No man can give what he has not Whoever therefore will pretend that the King has bestowed this propriety must prove that he had it in himself I confess that the Kings of Spain and Portugal obtained from the Pope grants of the Territories they possessed in the West-Indies and this might be of some strength if the Pope as Vicar of Christ had an absolute dominion over the whole earth but if that fail the whole falls to the ground and he is ridiculously liberal of that which no way belongs to him My business is not to dispute that point but before it can have any influence upon our Affairs our Kings are to prove that they are Lords of England upon the same Title or some other equivalent to it When that is done we shall know upon whom they have a dependence and may at leisure consider whether we ought to acknowledg and submit to such a Power or give reasons for our refusal But there being no such thing in our present case their property must be grounded upon something else or we may justly conclude they have none In order to this 't is hardly worth the pains to search into the obscure remains of the British Histories For when the Romans deserted our Island they did not confer the right they had whether more or less upon any man but left the enjoyment of it to the poor remainders of the Nation and their own established Colonies who were grown to be one People with the Natives The Saxons came under the conduct of Hengist and Horsa who seem to have bin sturdy Pirats but did not that I can learn bear any Characters in their persons of the so much admired Sovereign Majesty that should give them an absolute dominion or propriety either in their own Country or any other they should set their feet upon They came with about a hundred men and chusing rather to serve Vortigern than to depend upon what they could get by rapine at Sea lived upon a small proportion of Land by him allotted to them Tho this seems to be but a slender encouragement yet it was enough to invite many others to follow their Example and Fortune so that their number increasing the County of Kent was given to them under the obligation of serving the Britans in their Wars Not long after Lands in Northumberland were bestowed upon another company of them with the same condition This was all the Title they had to what they enjoyed till they treacherously killed four hundred and sixty or as William of Malmsbury says three hundred principal men of the British Nobility and made Vortigern Prisoner who had bin so much their Benefactor that he seems never to have deserved well but from them and to have incens'd the Britans by the favour he shew'd them as much as by the worst of his Vices And certainly actions of this kind composed of falshood and cruelty can never create a right in the opinion of any better men than Filmer and his Disciples who think that the power only is to be regarded and not the means by which it is obtained But tho it should be granted that a right had bin thus acquired it must accrue to the Nation not to Hengist and Horsa If such an acquisition be called a Conquest the benefit must belong to
most regular Commonwealths that ever were in the world And it can with no more reason be pretended that the Goths received their privileges from Alan or Theodoric the Francs from Pharamond or Meroveus and the English from Ina or Ethelred than that the liberty of Athens was the gift of Themistocles or Pericles that the Empire of Rome proceeded from the liberality of Brutus or Valerius and that the Commonwealth of Venice at this day subsists by the favour of the Contarini or Moresini which must reduce us to matter of right since that of fact void of right can signify nothing SECT XXXII The powers of Kings are so various according to the Constitutions of several States that no consequence can be drawn to the prejudice or advantage of any one merely from the name IN opposition to what is above said some alledg the name of King as if there were a charm in the word and our Author seems to put more weight upon it than in the reasons he brings to support his cause But that we may see there is no efficacy in it and that it conveys no other right than what particular Nations may annex to it we are to consider 1. That the most absolute Princes that are or have bin in the world never had the name of King whereas it has bin frequently given to those whose powers have bin very much restrained The Cesars were never called Kings till the sixth age of Christianity the Califs and Soldan of Egypt and Babylon the Great Turk the Cham of Tartary or the Great Mogol never took that name or any other of the same signification The Czar of Moscovy has it not tho he is as absolute a Monarch and his People as miserable slaves as any in the world On the other side the chief Magistrates of Rome and Athens for some time those of Sparta Arragon Sweden Denmark and England who could do nothing but by Law have bin called Kings This may be enough to shew that a name being no way essential what title soever is given to the chief Magistrate he can have no other power than the Laws and Customs of his Country do give or the People confer upon him 2. The names of Magistrates are often changed tho the power continue to be the same and the powers are sometimes alter'd tho the name remain When Octavius Cesar by the force of a mad corrupted Soldiery had overthrown all Law and Right he took no other title in relation to military Affairs than that of Imperator which in the time of liberty was by the Armies often given to Pretors and Consuls In Civil matters he was as he pretended content with the power of Tribun and the like was observed in his Successor who to new invented Usurpations gave old and approved names On the other side those titles which have bin render'd odious and execrable by the violent exercise of an absolute power are sometimes made popular by moderat elimitations as in Germany where tho the Monarchy seem to be as well temper'd as any the Princes retain the same names of Imperator Cesar and Augustus as those had done who by the excess of their rage and fury had desolated and corrupted the best part of world Sometimes the name is changed tho the power in all respects continue to be the same The Lords of Castille had for many Ages no other title than that of Count and when the Nobility and People thought good they changed it to that of King without any addition to the power The Sovereign Magistrate in Poland was called Duke till within the last two hundred years when they gave the title of King to one of the Jagellan Family which title has continued to this day tho without any change in the nature of the Magistracy And I presume no wise man will think that if the Venetians should give the name of King to their Duke it could confer any other power upon him than he has already unless more should be conferr'd by the Authority of the Great Council 3. The same names which in some places denote the supreme Magistracy in others are subordinate or merely titular In England France and Spain Dukes and Earls are Subjects in Germany the Electors and Princes who are called by those names are little less than Sovereigns and the Dukes of Savoy Tuscany Moscovy and others acknowledg no Superior as well as those of Poland and Castille had none when they went under those titles The same may be said of Kings Some are subject to a foreign power as divers of them were subject to the Persian and Babylonian Monarchs who for that reason were called the Kings of Kings Some also are tributaries and when the Spaniards first landed in America the great Kings of Mexico and Peru had many others under them Threescore and ten Kings gathered up meat under the table of Adonibezek The Romans had many Kings depending upon them Herod and those of his race were of this number and the dispute between him and his Sons Aristobulus and Alexander was to be determined by them neither durst he decide the matter till it was referred to him But a right of Appeal did still remain as appears by the case of St. Paul when Agrippa was King The Kings of Mauritania from the time of Massinissa were under the like dependence Jugurtha went to Rome to justify himself for the death of Micipsa Juba was commanded by the Roman Magistrates Scipio Petreius and Afranius another Juba was made King of the same Country by Augustus and Tiridates of Armenia by Nero and infinite examples of this nature may be alledged Moreover their powers are variously regulated according to the variety of tempers in Nations and Ages Some have restrained the powers that by experience were found to be exorbitant others have dissolved the bonds that were laid upon them and Laws relating to the institution abrogation enlargement or restriction of the regal Power would be utterly insignificant if this could not be done But such Laws are of no effect in any other Country than where they are made The lives of the Spartans did not depend upon the will of Agesilaus or Leonidas because Nabuchodonosor could kill or save whom he pleased and tho the King of Marocco may stab his Subjects throw them to the Lions or hang them upon tenterhooks yet a King of Poland would probably be called to a severe account if he should unjustly kill a single man SECT XXXIII The Liberty of a People is the gift of God and Nature IF any man ask how Nations come to have the power of doing these things I answer that Liberty being only an exemption from the dominion of another the question ought not to be how a Nation can come to be free but how a man comes to have a dominion over it for till the right of Dominion be proved and justified Liberty subsists as arising from the Nature and Being of a man Tertullian speaking of the
Manners and better enabled them to frame Laws for the preservation of their Liberty but no way diminished their love to it and tho the Normans might desire to get the Lands of those who had joined with Harold and of others into their hands yet when they were settled in the Country and by marriages united to the antient Inhabitants they became true Englishmen and no less lovers of Liberty and resolute defenders of it than the Saxons had bin There was then neither conquering Norman nor conquered Saxon but a great and brave People composed of both united in blood and interest in the defence of their common Rights which they so well maintained that no Prince since that time has too violently encroached upon them who as the reward of his folly has not lived miserably and died shamefully Such actions of our Ancestors do not as I suppose savour much of the submission which patrimonial slaves do usually render to the will of their Lord. On the contrary whatsoever they did was by a power inherent in themselves to defend that Liberty in which they were born All their Kings were created upon the same condition and for the same ends Alfred acknowledged he found and left them perfectly free and the confession of Offa that they had not made him King for his own merits but for the defence of their Liberty comprehends all that were before and after him They well knew how great the honour was to be made head of a great People and rigorously exacted the performance of the ends for which such a one was elevated severely punishing those who basely and wickedly betray'd the trust reposed in them and violated all that is most sacred among men which could not have bin unless they were naturally free for the Liberty that has no being cannot be defended SECT XXXIV No Veneration paid or Honor conferr'd upon a just and lawful Magistrate can diminish the Liberty of a Nation SOME have supposed that tho the people be naturally free and Magistrates created by them they do by such creations deprive themselves of that natural liberty and that the names of King Sovereign Lord and Dread Sovereign being no way consistent with Liberty they who give such Titles do renounce it Our Author carries this very far and lays great weight upon the submissive Language used by the people when they humbly crave that his Majesty would be pleased to grant their accustomed freedom of speech and access to his Person and give the name of Supplications and Petitions to the Addresses made to him Whereas he answers in the haughty Language of Le Roy le veut Le Roy s'avisera and the like But they who talk at this rate shew that they neither understand the nature of Magistracy nor the practice of Nations Those who have lived in the highest exercise of their Liberty and have bin most tenacious of it have thought no Honor too great for such Magistrates as were eminent in the defence of their Rights and were set up for that end The name of Dread Sovereign might justly have bin given to a Roman Dictator or Consul for they had the Sovereign Authority in their hands and power sufficient for its execution Whilst their Magistracy continued they were a terror to the same men whose Axes and Rods had bin a terror to them the year or month before and might be so again the next The Romans thought they could not be guilty of excess in carrying the power and veneration due to their Dictator to the highest And Livy tells us that his Edicts were esteemed sacred I have already shewn that this haughty People who might have commanded condescended to join with their Tribuns in a Petition to the Dictator Papirius for the life of Quintus Fabius who had fought a battel in his absence and without his order tho he had gained a great and memorable Victory The same Fabius when Consul was commended by his Father Q. Fabius Maximus for obliging him by his Lictors to dismount from his Horse and to pay him the same respect that was due from others The Tribuns of the People whe were instituted for the preservation of Liberty were also esteemed sacred and inviolable as appears by that phrase Sacrosancta Tribunorum potest as so common in their antient Writers No man I presume thinks any Monarchy more limited or more clearly derived from a delegated Power than that of the German Emperors and yet Sacra Caesarea Majest as is the publick stile Nay the Hollanders at this day call their Burgermasters tho they see them selling Herring or Tar High and Mighty Lords as soon as they are advanced to be of the 36 42 or 48 Magistrates of a small Town 'T is no wonder therefore if a great Nation should think it conducing to their own glory to give magnificent Titles and use submissive language to that one man whom they set up to be their Head most especially if we consider that they came from a Country where such Titles and Language were principally invented Among the Romans and Grecians we hear nothing of Majesty Highness Serenity and Excellence appropriated to a single Person but receive them from Germany and other Northern Countries We find Majestas Populi Romani and Majestas Imperii in their best Authors but no man speaking to Julius or Augustus or even to the vainest of their Successors ever used those empty Titles nor took upon themselves the name of Servants as we do to every fellow we meet in the streets When such ways of speaking are once introduced they must needs swell to a more than ordinary height in all transactions with Princes Most of them naturally delight in vanity and Courtiers never speak more truth than when they most extol their Masters and assume to themselves the names that best express the most abject slavery These being brought into mode like all ill customs increase by use and then no man can omit them without bringing that hatred and danger upon himself which few will undergo except for something that is evidently of great importance Matters of ceremony and title at the first seem not to be so and being for some time neglected they acquire such strength as not to be easily removed From private Usage they pass into publick Acts and those Flatterers who gave a beginning to them proposing them in publick Councils where too many of that sort have always insinuated themselves gain credit enough to make them pass This work was farther advanced by the Church of Rome according to their custom of favouring that most which is most vain and corrupt and it has bin usual with the Popes and their adherents liberally to gratify Princes for Services render'd to the Church with Titles that tended only to the prejudice of the people These poisonous Plants having taken root grew up so fast that the Titles which within the space of a hundred years were thought sufficient for the Kings and Queens of England have
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
Towns and Provinces upon the most eminent men in them And whilst those Kings were exercised in almost perpetual Wars and placed their glory in the greatness of the actions they atchieved by the power and valour of their people it was their interest always to chuse such as seemed best to deserve that honour It was not to be imagined that through the weakness of some and malice of others those dignities should by degrees be turned into empty titles and become the rewards of the greatest crimes and the vilest services or that the noblest of their Descendents for want of them should be brought under the name of Commoners and deprived of all privileges except such as were common to them with their Grooms Such a stupendous change being in process of time insensibly introduced the foundations of that Government which they had established were removed and the superstructure overthrown The balance by which it subsisted was broken and 't is as impossible to restore it as for most of those who at this day go under the name of Noblemen to perform the duties required from the antient Nobility of England And tho there were a charm in the name and those who have it should be immediately filled with a spirit like to that which animated our Ancestors and endeavour to deserve the Honors they possess by such Services to the Country as they ought to have perform'd before they had them they would not be able to accomplish it They have neither the interest nor the estates required for so great a work Those who have estates at a rack Rent have no dependents Their Tenants when they have paid what is agreed owe them nothing and knowing they shall be turn'd out of their Tenements as soon as any other will give a little more they look upon their Lords as men who receive more from them than they confer upon them This dependence being lost the Lords have only more mony to spend or lay up than others but no command of men and can therefore neither protect the weak nor curb the insolent By this means all things have bin brought into the hands of the King and the Commoners and there is nothing left to cement them and to maintain the union The perpetual jarrings we hear every day the division of the Nation into such factions as threaten us with ruin and all the disorders that we see or fear are the effects of this rupture These things are not to be imputed to our original Constitutions but to those who have subverted them And if they who by corrupting changing enervating and annihilating the Nobility which was the principal support of the antient regular Monarchy have driven those who are truly Noblemen into the same interest and name with the Commons and by that means increased a party which never was and I think never can be united to the Court they are to answer for the Consequences and if they perish their destruction is from themselves The inconveniences therefore proceed not from the institution but from the innovation The Law was plain but it has bin industriously rendred perplex They who were to have upheld it are overthrown That which might have bin easily performed when the people was armed and had a great strong virtuous and powerful Nobility to lead them is made difficult now they are disarmed and that Nobility abolished Our Ancestors may evidently appear not only to have intended well but to have taken a right course to accomplish what they intended This had effect as long as the cause continued and the only fault that can be ascribed to that which they established is that it has not proved to be perpetual which is no more than may be justly said of the best human Constitutions that ever have bin in the world If we will be just to our Ancestors it will become us in our time rather to pursue what we know they intended and by new Constitutions to repair the breaches made upon the old than to accuse them of the defects that will for ever attend the Actions of men Taking our Affairs at the worst we shall soon find that if we have the same spirit they had we may easily restore our Nation to its antient liberty dignity and happiness and if we do not the fault is owing to our selves and not to any want of virtue and wisdom in them SECT XXXVIII The Power of calling and dissolving Parliaments is not simply in the King The variety of Customs in chusing Parliament men and the Errors a people may commit neither prove that Kings are or ought to be Absolute THE original of magistratical Power the intention of our Ancestors in its creation and the ways prescribed for the direction and limitation of it may I presume sufficiently appear by what has bin said But because our Author taking hold of every twig pretends that Kings may call and dissolve Parliaments at their pleasure and from thence infers the Power to be wholly in them alledges the various customs in several parts of this Nation used in the elections of Parliament men to proceed from the King's will and because a people may commit Errors thinks all Power ought to be put into the hands of the King I answer 1. That the Power of calling and dissolving Parliaments is not simply in Kings They may call Parliaments if there be occasion at times when the Law dos not exact it they are placed as Sentinels and ought vigilantly to observe the motions of the Enemy and give notice of his approach But if the Sentinel fall asleep neglect his duty or maliciously endeavour to betray the City those who are concern'd may make use of all other means to know their danger and to preserve themselves The ignorance incapacity negligence or luxury of a King is a great calamity to a Nation and his malice is worse but not an irreparable ruin Remedies may be and often have bin found against the worst of their Vices The last French Kings of the Races of Meroveus and Pepin brought many mischiefs upon the Kingdom but the destruction was prevented Edward and Richard the Seconds of England were not unlike them and we know by what means the Nation was preserved The question was not who had the Right or who ought to call Parliaments but how the Commonwealth might be saved from ruin The Consuls or other chief Magistrates in Rome had certainly a right of assembling and dismissing the Senat But when Hannibal was at the Gates or any other imminent danger threatned them with destruction if that Magistrate had bin drunk mad or gained by the Enemy no wise man can think that Formalities were to have bin observed In such cases every man is a Magistrate and he who best knows the danger and the means of preventing it has a right of calling the Senat or People to an Assembly The people would and certainly ought to follow him as they did Brutus and Valerius against Tarquin or Horatius and
manifest this by the words Be it enacted by the Lords Spiritual and Temporal and Commons in Parliament assembled and by Authority of the same But King James says Filmer in his Law of free Monarchy affirms the contrary and it may be so yet that is nothing to us No man doubts that he desired it might be so in England but it dos not from thence appear that it is so The Law of a free Monarchy is nothing to us for that Monarchy is not free which is regulated by a Law not to be broken without the guilt of Perjury as he himself confessed in relation to ours As to the words cited from Hooker I can find no hurt in them To draw up the form of a good Law is a matter of invention and judgment but it receives the force of a Law from the power that enacts it We have no other reason for the paiment of Excise or Customs than that the Parliament has granted those Revenues to the King to defray the publick Charges Whatever therefore King James was pleased to say in his Books or in those written for him we do not so much as know that the killing of a King is Treason or to be punished with death otherwise than as it is enacted by Parliament and it was not always so for in the time of Ethelstan the Estimates of Lives were agreed in Parliament and that of a King valued at thirty thousand Thrymsae And if that Law had not bin alter'd by the Parliament it must have bin in force at this day It had bin in vain for a King to say he would have it otherwise for he is not created to make Laws but to govern according to such as are made and sworn to assent to such as shall be proposed He who thinks the Crown not worth accepting on these conditions may refuse it The words Le Roy le veult are only a pattern of the French fashions upon which some Kings have laid great stress and would no doubt have bin glad to introduce Car tel est nostre plaisir but that may prove a difficult matter Nay in France it self where that Stile and all the ranting expressions that please the vainest of men are in mode no Edict has the power of a Law till it be registred in Parliament This is not a mere ceremony as some pretend but all that is essential to a Law Nothing has bin more common than for those Parliaments to refuse Edicts sent to them by the King When John Chastel had at the instigation of the Jesuits stabb'd Henry the fourth in the Mouth and that Order had designed or executed many other execrable crimes they were banished out of the Kingdom by an Arrest of the Parliament of Paris Some other Parliaments registred the same but those of Tholouse and Bordeaux absolutely refused and notwithstanding all that the King could do the Jesuits continued at Tournon and many other places within their Precincts till the Arrest was revoked These proceedings are so displeasing to the Court that the most violent ways have bin often used to abolish them About the year 1650 Seguier then Chancellor of France was sent with a great number of Soldiers to oblige the Parliament of Paris to pass some Edicts upon which they had hesitated but he was so far from accomplishing his design that the People rose against him and he thought himself happy that he escaped with his Life If the Parliaments do not in all parts of the Kingdom continue in the Liberty of approving or rejecting all Edicts the Law is not altered but oppressed by the violence of the Sword And the Prince of Condé who was principally employ'd to do that work may as I suppose have had leisure to reflect upon those Actions and cannot but find reason to conclude that his excellent valour and conduct was used in a most noble exploit equally beneficial to his Country and himself However those who are skilled in the Laws of that Nation do still affirm that all publick Acts which are not duly examined and registred are void in themselves and can be of no force longer than the miserable People lies under the violence of Oppression which is all that could reasonably be said if a Pirat had the same power over them But whether the French have willingly offer'd their ears to be bor'd or have bin subdued by force it concerns us not Our Liberties depend not upon their will virtue or fortune how wretched and shameful soever their Slavery may be the evil is only to themselves We are to consider no human Laws but our own and if we have the spirit of our Ancestors we shall maintain them and die as free as they left us Le Roy le veut tho written in great Letters or pronounced in the most tragical manner can signify no more than that the King in performance of his Oath dos assent to such Laws as the Lords and Commons have agreed Without prejudice to themselves and their Liberties a People may suffer the King to advise with his Council upon what they propose Two eyes see more than one and human judgment is subject to errors Tho the Parliament consist of the most eminent men of the Nation yet when they intend good they may be mistaken They may sefely put a check upon themselves that they may farther consider the most important matters and correct the errors that may have bin committed if the King's Council do discover them but he can speak only by the advice of his Council and every man of them is with his head to answer for the advices he gives If the Parliament has not bin satisfied with the reasons given against any Law that they offer'd it has frequently pass'd and if they have bin satisfied 't was not the King but they that laid it aside He that is of another opinion may try whether Le Roy le veut can give the force of a Law to any thing conceived by the King his Council or any other than the Parliament But if no wise man will affirm that he can do it or deny that by his Oath he is obliged to assent to those that come from them he can neither have the Legislative power in himself nor any other part in it than what is necessarily to be performed by him as the Law prescribes I know not what our Author means by saying Le Roy le veut is the interpretative phrase pronounced at the passing of every Act of Parliament For if there be difficulty in any of them those words do no way remove it But the following part of the paragraph better deserves to be observed It was says he the antient custom for á long time until the days of Henry the fifth for the Kings when any Bill was brought to them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted as a Law But the custom of the
excelling all others in virtue can have no other just power than what the Laws give nor any title to the privileges of the Lord 's Anointed p. 250. Sect. 2. The Kings of Israel and Judah were under a Law not safely to be transgressed p. 262. Sect. 3. Samuel did not describe to the Israelites the glory of a free Monarchy but the evils the people should suffer that he might divert them from desiring a King p. 264. Sect. 4. No People can be obliged to suffer from their Kings what they have not a right to do p. 266. Sect. 5. The mischiefs suffer'd from wicked Kings are such as render it both reasonable and just for all Nations that have Virtue and Power to exert both in repelling them p. 270. Sect. 6. 'T is not good for such Nations as will have Kings to suffer them to be glorious powerful or abounding in Riches p. 273. Sect. 7. When the Israelites asked for such a King as the Nations about them had they asked for a Tyrant tho they did not call him so p. 277. Sect. 8. Vnder the name of Tribute no more is understood than what the Law of each Nation gives to the supreme Magistrate for the defraying of publick Charges to which the customs of the Romans or sufferings of the Jews have no relation p. 283. Sect. 9. Our own Laws confirm to us the enjoyment of our native Rights p. 288. Sect. 10. The words of St. Paul enjoyning obedience to higher Powers favour all sorts of Government no less than Monarchy p. 292. Sect. 11. That which is not just is not Law and that which is not Law ought not to be obeyed p. 300. Sect. 12. The right and power of a Magistrate depends upon his institution not upon his name p. 302. Sect. 13. Laws were made to direct and instruct Magistrates and if they will not be directed to restrain them p. 305. Sect. 14. Laws are not made by Kings not because they are busied in greater matters than doing Justice but because Nations will be governed by rule and not arbitrarily p. 309. Sect. 15. A general presumption that Kings will govern well is not a sufficient security to the people p. 314. Sect. 16. The observation of the Laws of Nature is absurdly expected from Tyrants who set themselves up against all Laws and he that subjects Kings to no other Law than what is common to Tyrants destroys their being p. 317. Sect. 17. Kings cannot be the interpreters of the Oaths they take p. 322. Sect. 18. The next in blood to deceased Kings cannot generally be said to be Kings till they are crowned p. 330. Sect. 19. The greatest enemy of a just Magistrate is he who endeavours to invalidate the Contract between him and the people or to corrupt their manners p. 341. Sect. 20. Vnjust commands are not to be obey'd and no man is obliged to suffer for not obeying such as are against Law p. 345. Sect. 21. It cannot be for the good of the People that the Magistrate have a Power above the Law And he is not a Magistrate who has not his Power by Law 348. Sect. 22. The rigor of the Law is to be temper'd by men of known integrity and judgment and not by the Prince who may be ignorant or vicious p. 354. Sect. 23. Aristotle proves that no man is to be intrusted with an Absolute Power by shewing that no one knows how to execute it but such a man as is not to be found p. 358. Sect. 24. The Power of Augustus Cesar was not given but usurped p. 360. Sect. 25. The Regal Power was not the first in this Nation nor necessarily to be continued tho it had bin the first p. 361. Sect. 26. That the King may be entrusted with the power of chusing Judges yet that by which they act is from the Law p. 369. Sect. 27. Magna Charta was not the Original but a declaration of the English Liberties The King's Power is not restrained but created by that and other Laws and the Nation that made them can only correct the defects of them p. 370. Sect. 28. The English Nation has always bin governed by it self or its Representatives p. 379. Sect. 29. The King was never Master of the Soil p. 391. Sect. 30. Henry the first was King of England by as good a Title as any of his Predecessors or Successors p. 395. Sect. 31. Free Nations have a right of meeting when and where they please unless they deprive themselves of it p. 399. Sect. 32. The Powers of Kings are so various according to the Constitutions of several States that no consequence can be drawn to the prejudice or advantage of any one merely from the name p. 404. Sect. 33. The Liberty of a People is the Gift of God and Nature p. 406. Sect. 34. No veneration paid or honor confer'd upon a just and lawful Magistrate can diminish the liberty of a Nation p. 409. Sect. 35. The Authority given by our Law to the Acts performed by a King de facto detract nothing from the Peoples Right of creating whom they please p. 411. Sect. 36. The general revolt of a Nation cannot be called a Rebellion p. 413. Sect. 37. The English Government was not ill constituted the defects more lately observed proceeding from the change of manners and corruption of the times p. 418. Sect. 38. The power of calling and dissolving Parliaments is not simply in the King The variety of Customs in chusing Parliamentmen and the Errors a People may commit neither prove that Kings are or ought to be absolute p. 421. Sect. 39. Those Kings only are heads of the People who are good wise and seek to advance no Interest but that of the Publick p. 426. Sect. 40. Good Laws prescribe easy and safe Remedies against the Evils proceeding from the Vices or Infirmities of the Magistrate and when they fail they must be supplied p. 432. Sect. 41. The people for whom and by whom the Magistrate is created can only judg whether he rightly performs his Office or not p. 436. Sect. 42. The Person that wears the Crown cannot determine the Affairs which the Law refers to the King p. 440. Sect. 43. Proclamations are not Laws p. 445. Sect. 44. No People that is not free can substitute Delegates p. 450. Sect. 45. The Legislative Power is always Arbitrary and not to be trusted in the hands of any who are not bound to obey the Laws they make p. 455. Sect. 46. The coercive Power of the Law proceeds from the Authority of Parliament p. 457. ERRATA PAge 77. line 41. for Numbers read Members P. 113. l. 37. read Antiochus P. 197. l. 6. read acquired P. 229. l. 39. for nor read and. P. 269. l. 12. for for read from P. 282. l. 3. read should it P. 285. l. 42. read renounced P. 335. l. 41. for to read de P. 418. l. 20. for have read hâ—â— P. 429. l. 38. for them read him Potentiora Legiun quam hominum
those that conquer'd This was not the work of two men and those who had bin free at home can never be thought to have left their own Country to fight as slaves for the glory and profit of two men in another It cannot be said that their wants compelled them for their Leaders suffer'd the same and could not be relieved but by their assistance and whether their enterprize was good or bad just or unjust it was the same to all No one man could have any right peculiar to himself unless they who gained it did confer it upon him and 't is no way probable that they who in their own Country had kept their Princes within very narrow limits as has bin proved should resign themselves and all they had as soon as they came hither But we have already shewn that they always continued most obstinate defenders of their Liberty and the Government to which they had bin accustomed that they managed it by themselves and acknowledged no other Laws than their own Nay if they had made such a resignation of their Right as was necessary to create one in their Leaders it would be enough to overthrow the proposition for 't is not then the Leader that gives to the People but the People to the Leader If the people had not a right to give what they did give none was conferred upon the receiver if they had a right he that should pretend to derive a benefit from thence must prove the grant that the nature and intention of it may appear 2. To the second If it be said that Records testify all Grants to have bin originally from the King I answer That tho it were confessed which I absolutely deny and affirm that our Rights and Liberties are innate inherent and enjoy'd time out of mind before we had Kings it could be nothing to the question which is concerning Reason and Justice and if they are wanting the defect can never be supplied by any matter of fact tho never so clearly proved Or if a Right be pretended to be grounded upon a matter of fact the thing to be proved is that the people did really confer such a right upon the first or some other Kings And if no such thing do appear the proceedings of one or more Kings as if they had it can be of no value But in the present case no such grant is pretended to have bin made either to the first or to any of the following Kings the Right they had not their Successors could not inherit and consequently cannot have it or at most no better title to it than that of Usurpation But as they who enquire for truth ought not to deny or conceal any thing I may grant that Mannors c. were enjoyed by tenure from Kings but that will no way prejudice the cause I defend nor signify more than that the Countries which the Saxons had acquired were to be divided among them and to avoid the quarrels that might arise if every man took upon him to seize what he could a certain method of making the distribution was necessarily to be fixed and it was fit that every man should have something in his own hands to justify his Title to what he possessed according to which controversies should be determined This must be testified by some body and no man could be so fit or of so much credit as he who was chief among them and this is no more than is usual in all the Societies of the World The Mayor of every Corporation the Speaker or Clerk of the House of Peers or House of Commons the first President of every Parliament or Presidial in France the Consul Burgermaster Advoyer or Bailiff in every free Town of Holland Germany or Switzerland sign the publick Acts that pass in those places The Dukes of Venice and Genoa do the like tho they have no other power than what is conferred upon them and of themselves can do little or nothing The Grants of our Kings are of the same nature tho the words mero motu nostro seem to imply the contrary sor Kings speak always in the plural number to shew that they do not act for themselves but for the Societies over which they are placed and all the veneration that is or can be given to their Acts dos not exalt them but those from whom their Authority is derived and for whom they are to execute The Tyrants of the East and other Barbarians whose power is most absolute speak in the single number as appears by the decrees of Nabuchodonosor Cyrus Darius and Abasaerus recited in Scripture with others that we hear of daily from those parts but wheresoever there is any thing of civility or regularity in Government the Prince uses the plural to shew that he acts in a publick capacity From hence says Grotius the rights of Kings to send Ambassadors make Leagues c. do arise the confederacies made by them do not terminate with their lives because they are not for themselves they speak not in their own Persons but as representing their People and ae King who is depriv'd of his Kingdom loses the right of sending Ambassadors because he can no longer speak for those who by their own consent or by a foreign force are cut off from him The question is not whether such a one be justly or unjustly deprived sor that concerns only those who do it or suffer it but whether he can oblige the People and 't is ridiculous for any Nation to treat with a man that cannot perform what shall be agreed or for him to stipulate that which can oblige and will be made good only by himself But tho much may be left to the discretion of Kings in the distribution of Lands and the like yet it no way diminishes the right of the People nor consers any upon them otherwise to dispose of what belongs to the publick than may tend to the common good and the accomplishment of those ends for which they are entrusted Nay if it were true that a conquered Country did belong to the Crown the King could not dispose of it because 't is annexed to the Office and not alienable by the Person This is not only found in regular mixed Monarchies as in Sweden where the Grants made by the last Kings have bin lately rescinded by the General Assembly of Estates as contrary to Law but even in the most absolute as in France where the present King who has stretched his power to the utmost has lately acknowledged that he cannot do it and according to the known maxim of the State that the demeasnes of the Crown which are designed for the defraying of publick Charges cannot be alienated all the Grants made within the last fifteen years have bin annulled even those who had bought Lands of the Crown have bin called to account and the Sums given being compared with the profits received and a moderate interest allowed to the purchasers so much