in his Will acknowledged his Crown from them Edgar was elected by all the People and not long after deposed by them and again restored in a General Assembly These things being sometimes said to be done by the assent of the Barons of the Kingdom Camden says That under the name of the Baronage all the Orders of the Kingdom are in a manner comprehended and it cannot be otherwise understood if we consider that those called Noblemen or the Nobility of England are often by the Historians said to be infinita multitudo an infinite multitude If any man ask how the Nobility came to be so numerous I answer That the Northern Nations who were perpetually in Arms put a high esteem upon Military Valour sought by conquest to acquire better Countries than their own valu'd themselves according to the numbers of men they could bring into the field and to distinguish them from Villains called those Noblemen who nobly defended and enlarged their Dominions by War and for a reward of their Services in the division of Lands gained by conquest they distributed to them Freeholds under the obligation of continuing the same Service to their Country This appears by the name of Knights Service a Knight being no more than a Soldier and a Knight's Fee no more than was sufficient to maintain one 'T is plain that Knighthood was always esteemed Nobility so that no man of what quality soever thought a Knight inferior to him and those of the highest birth could not act as Noblemen till they were knighted Among the Goths in Spain the cutting off the Hair which being long was the mark of Knighthood was accounted a degrading and looked upon to be so great a mark of Infamy that he who had suffer'd it could never bear any honor or office in the Commonwealth and there was no dignity so high but every Knight was capable of it There was no distinction of men above it and even to this day Baron or Varon in their Language signifies no more than Vir in Latin which is not properly given to any man unless he be free The like was in France till the coming in of the third race of Kings in which time the 12 Peers of whom 6 only were Laymen were raised to a higher dignity and the Commands annexed made hereditary but the honour of Knighthood was thereby no way diminished Tho there were Dukes Earls Marquesses and Barons in the time of Froissart yet he usually calls them Knights And Philip de Commines speaking of the most eminent men of his time calls them good wise or valiant Knights Even to this day the name of Gentleman comprehends all that is raised above the common people Henry the fourth usually called himself the first Gentleman in France and 't is an ordinary phrase among them when they speak of a Gentleman of good Birth to say Il est noble comme le Roy He is as noble as the King In their General Assembly of Estates The Chamber of the Noblesse which is one of Three is composed of the Deputies sent by the Gentry of every Province and in the inquiry made about the Year 1668 concerning Nobility no notice was taken of such as had assumed the Titles of Earl Marquess Viscount or Baron but only of those who called themselves Gentlemen and if they could prove that name to belong to them they were left to use the other Titles as they pleased When Duels were in fashion as all know they were lately no man except the Princes of the Blood and Marechals of France could with honour refuse a Challenge from any Gentleman The first because it was thought unfit that he who might be King should fight with a Subject to the danger of the Commonwealth which might by that means be deprived of its Head The others being by their Office Commanders of the Nobility and Judges of all the Controversies relating to Honour that happen amongst them cannot reasonably be brought into private Contests with any In Denmark Nobleman and Gentleman is the same thing and till the year 1660 they had the principal part of the Government in their hands When Charles Guslavus King of Sweden invaded Poland in the year 1655 't is said that there were above three hundred thousand Gentlemen in Arms to resist him This is the Nobility of that Country Kings are chosen by them Every one of them will say as in France He is noble as the King The last King was a private man among them not thought to have had more than four hundred pounds a year He who now reigns was not at all above him in birth or estate till he had raised himself by great services done for his Country in many wars and there was not one Gentleman in the Nation who might not have bin chosen as well as he if it had pleased the Assembly that did it This being the Nobility of the Northern Nations and the true Baronage of England 't is no wonder that they were called Nobiles the most eminent among them Magnates Principes Proceres and so numerous that they were esteemed to be Multitudo infinita One place was hardly able to contain them and the inconveniences of calling them all together appeared to be so great that they in time chose rather to meet by Representatives than every one in his own person The power therefore remaining in them it matters not what method they observed in the execution They who had the substance in their hands might give it what form they pleased Our Author sufficiently manifests his ignorance in saying there could be no Knights of the Shires in the time of the Saxons because there were no Shires for the very word is Saxon and we find the names of Barkshire Wiltshire Devonshire Dorsetshire and others most frequently in the writings of those times and Dukes Earls Thanes or Aldermen appointed to command the forces and look to the distribution of Justice in them Selden cites Ingulphus for saying that Alfred was the first that changed the Provinces c. into Counties but refutes him and proves that the distinction of the Land into Shires or Counties for Shire signified no more than the share or part committed to the care of the Earl or Comes was far more antient Whether the first divisions by the Saxons were greater or lesser than the Shires or Counties now are is nothing to the question they who made them to be as they were could have made them greater or lesser as they pleased And whether they did immediately or some ages after that distinction cease to come to their great Assemblies and rather chuse to send their Deputies or whether such Deputies were chosen by Counties Cities and Boroughs as in our days or in any other manner can be of no advantage or prejudice to the Cause that I maintain If the power of the Nation when it was divided into seven Kingdoms or united under one did reside in the Micklegemots
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
to them On the other hand the poverty and simplicity of the Spartan Kings was no less safe and profitable to the People than truly glorious to them Agesilaus denied that Artaxerxes was greater than he unless he were more temperate or more valiant and he made good his words so well that without any other assistance than what his Wisdom and Valour did afford he struck such a terror into that great rich powerful and absolute Monarch that he did not think himself safe in Babylon or Ecbatane till the poor Spartan was by a Captain of as great valour and greater poverty obliged to return from Asia to the defence of his own Country This was not peculiar to the severe Laconic Discipline When the Roman Kings were expelled a few Carts were prepared to transport their goods and their Lands which were consecrated to Mars and now go under the name of Campus Martius hardly contain ten Acres of ground Nay the Kings of Israel who led such vast Armies into the field that is were followed by all the people who were able to bear Arms seem to have possessed little Ahab one of the most powerful was so fond of Naboth's Vineyard which being the Inheritance of his Fathers according to their equal division of Lands could not be above two Acres that he grew sick when it was refused But if an allowance be to be made to every King it must be either according to a universal Rule or Standard or must depend upon the Judgment of Nations If the first they who have it may do well to produce it if the other every Nation proceeding according to the measure of their own discretion is free from blame It may also be worth observation whether the Revenue given to a King be in such manner committed to his care that he is obliged to employ it for the publick Service without the power of Alienation or whether it be granted as a Propriety to be spent as he thinks fit When some of the antient Jews and Christians scrupled the paiment of Tribute to the Emperors the reasons alledged to perswade them to a compliance seem to be grounded upon a supposition of the first for said they the defence of the State lies upon them which cannot be perform'd without Armies and Garisons these cannot be maintained without pay nor mony raised to pay them without Tributes and Customs This carries a face of reason with it especially in those Countries which are perpetually or frequently subject to Invasions but this will not content our Author He speaks of employing the revenue in keeping his House and looks upon it as a propriety to be spent as he thinks convenient which is no less than to cast it into a Pit of which no man ever knew the bottom That which is given one day is squandred away the next The people is always oppress'd with Impositions to foment the Vices of the Court These daily increasing they grow insatiable and the miserable Nations are compelled to hard labour in order to satiate those Lusts that tend to their own ruin It may be consider'd that the virtuous Pagans by the light of Nature discovered the truth of this Poverty grew odious in Rome when great men by desiring Riches put a value upon them and introduced that pomp and luxury which could not be born by men of small Fortunes From thence all furies and mischiefs seem'd to break loose The base slavish and so often subdued Asia by the basest of men revenged the defeats they had received from the bravest and by infusing into them a delight in pomp and luxury in a short time rendred the strongest and bravest of Nations the weakest and basest I wish our own experience did not too plainly manifest that these Evils were never more prevalent than in our days when the luxury majestick pomp and absolute power of a neighbouring King must be supported by an abundance of Riches torn out of the bowels of his Subjects which renders them in the best Country of the World and at a time when the Crown most flourishes the poorest and most miserable of all the Nations under the Sun We too well know who are most apt to learn from them and by what means and steps they endeavour to lead us into the like misery But the Bird is safe when the Snare is discover'd and if we are not abandoned by God to destruction we shall never be brought to consent to the settling of that Pomp which is against the practice of all virtuous people and has brought all the Nations that have bin taken with it into the ruin that is intended for us S E C T. VII 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 NOW that Saul was no Tyrant says our Author note that the people asked a King as all Nations had God answers and bids Samuel to hear the voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not bin to hear their voice in all things but rather when they asked an Egg to have given them a Scorpion unless we will say that all Nations had Tyrants But before he drew such a Conclusion he should have observed that God did not give them a Scorpion when they asked an Egg but told them that was a Scorpion which they called an Egg They would have a King to judg them to go out before them and to fight their Battels but God in effect told them he would overthrow all Justice and turn the Power that was given him to the ruin of them and their Posterity But since they would have it so he commanded Samuel to hearken to their Voice and for the punishment of their sin and folly to give them such a King as they asked that is one who would turn to his own profit and their misery the Power with which he should be entrusted and this truly denominates a Tyrant Aristotle makes no other distinction between a King and a Tyrant than that the King governs for the good of the People the Tyrant for his own pleasure or profit and they who asked such a one asked a Tyrant tho they called him a King This is all could be done in their Language for as they who are skilled in the Oriental Tongues assure me there is no name for a Tyrant in any of them or any other way of expressing the thing than by circumlocution and adding proud insolent lustful cruel violent or the like Epithets to the word Lord or King They did in effect ask a Tyrant They would not have such a King as God had ordain'd but such a one as the Nations had Not that all Nations had Tyrants but those who were round about them of whom they had knowledg and which in their manner of speaking went under the name
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
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
except such as are like Filmer who by bidding defiance to the Laws of God and Man seems to declare war against both whom I would not trust to determine whether a People that can never fall into Nonage or Dotage and can never fail of having men of Wisdom and Virtue amongst them be not more fit to judg in their own Persons or by Representatives what conduces to their own good than one who at a venture may be born in a certain Family and who besides his own Infirmities Passions Vices or Interests is continually surrounded by such as endeavour to divert him from the ways of Truth and Justice And if no reasonable man dare prefer the latter before the former we must rely upon the Laws made by our Forefathers and interpreted by the Nation and not upon the will of a man 'T is in vain to say that a wise and good Council may supply the defects or correct the Vices of a young foolish or ill disposed King For Filmer denies that a King whatever he be without exception for he attributes profound wisdom to all is obliged to follow the advice of his Council and even he would hardly have had the impudence to say That good Counsel given to a foolish or wicked Prince were of any value unless he were obliged to follow it This Council must be chosen by him or imposed upon him if it be imposed upon him it must be by a power that is above him which he says cannot be If chosen by him who is weak foolish or wicked it can never be good because such virtue and wisdom is requir'd to discern and chuse a few good and wise men from a multitude of foolish and bad as he has not And it will generally fall out that he will take for his Counsellors rather those he believes to be addicted to his Person or Interests than such as are fitly qualified to perform the duty of their places But if he should by chance or contrary to his intentions make choice of some good and wise men the matter would not be much mended for they will certainly differ in opinion from the worst And tho the Prince should intend well of which there is no assurance nor any reason to put so great a power into his hands if there be none 't is almost impossible for him to avoid the snares that will be laid ro seduce him I know not how to put a better face upon this matter for if I examine rather what is probable than possible foolish or ill Princes will never chuse such as are wise and good but favouring those who are most like to themselves will prefer such as second their vices humours and personal Interests and by so doing will rather fortify and rivet the evils that are brought upon the Nation through their defects than cure them This was evident in Rehoboam he had good Counsel but he would not hearken to it We know too many of the same sort and tho it were not impossible as Macchiavelli says it is for a weak Prince to receive any benefit from a good Council we may certainly conclude that a People can never expect any good from a Council chosen by one who is weak or vicious If a Council be imposed upon him and he be obliged to follow their advice it must be imposed by a Power that is above him his Will therefore is not a Law but must be regulated by the Law the Monarchy is not above the Law and if we will believe our Author 't is no Monarchy because the Monarch has not his will and perhaps he says true For if that be not an Aristocracy where those that are or are reputed to be the best do govern then that is certainly a mixed State in which the will of one man dos not prevail But if Princes are not obliged by the Law all that is founded upon that supposition falls to the ground They will always sollow their own humours or the suggestions of those who second them Tiberius hearkned to none but Chaldeans or the ministers of his impurities and cruelties Claudius was governed by Slaves and the profligate Strumpets his Wives There were many wise and good men in the Senate during the reigns of Caligula Nero and Domitian but instead of following their Counsel they endeavour'd to destroy them all lest they should head the People against them and such Princes as resemble them will always follow the like courses If I often repeat these hateful names 't is not for want of sresher examples of the same nature but I chuse such as Mankind has universally condemn'd against whom I can have no other cause of hatred than what is common to all those who have any love to virtue and which can have no other relation to the Controversies of later Ages than what may flow from the similitude of their causes rather than such as are too well known to us and which every man according to the measure of his experience may call to mind in reading these I may also add that as nothing is to be received as a general Maxim which is not generally true I need no more to overthrow such as Filmer proposes than to prove how frequently they have bin found false and what desperate mischiefs have bin brought upon the World as often as they have bin practised and excessive Powers put into the hands of such as had neither inclination nor ability to make a good use of them 1. But if the safety of Nations be the end for which Governments are instituted such as take upon them to govern by what Title soever are by the Law of Nature bound to procure it and in order to this to preserve the Lives Lands Liberties and Goods of every one of their Subjects and he that upon any title whatsoever pretends assumes or exercises a power of disposing of them according to his will violates the Laws of Nature in the highest degree 2. If all Princes are obliged by the Law of Nature to preserve the Lands Goods Lives and Liberties of their Subjects those Subjects have by the Law of Nature a right to their Liberties Lands Goods c. and cannot depend upon the will of any man for that dependence destroys Liberty c. 3. Ill men will not and weak men cannot provide for the safety of the People nay the work is of such extreme difficulty that the greatest and wisest men that have bin in the world are not able by themselves to perform it and the assistance of Counsel is of no use unless Princes are obliged to follow it There must be therefore a power in every State to restrain the ill and to instruct weak Princes by obliging them to follow the Counsels given else the ends of Government cannot be accomplished nor the rights of Nations preserved All this being no more than is said by our Author or necessarily to be deduced from his Propositions one would think he were become as good
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
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
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
Author presume that they will always be of profound wisdom to comprehend all of them and of perfect integrity always to act according to their understanding Which is no less than to lay the foundation of the Government upon a thing merely contingent that either never was or very often fails as is too much verified by experience and the Histories of all Nations or else to refer the decision of all to those who through the infirmities of age sex or person are often uncapable of judging the least or subject to such passions and vices as would divert them from Justice tho they did understand it both which seem to be almost equally preposterous 2. The Law must also presume that the Prince is always present in all the places where his name is used The King of France is as I have said already esteemed to be present on the seat of Justice in all the Parliaments and sovereign Courts of the Kingdom and if his corporeal Presence were by that phrase to be understood he must be in all those distinct and far distant places at the same time which absurdity can hardly be parallel'd unless by the Popish opinion of Transubstantiation But indeed they are so far from being guilty of such monstrous absurdity that he cannot in person be present at any trial and no man can be judged if he be This was plainly asserted to Lewis the 13th who would have bin at the Trial of the Duke of Candale by the President de Bellievre who told him that as he could judg no man himself so they could not judg any if he were present upon which he retired 3. The Laws of most Kingdoms giving to Kings the Confiscation of Delinquents estates if they in their own persons might give judgment upon them they would be constituted both Judges and Parties which besides the foremention'd incapacities to which Princes are as much subject as other men would tempt them by their own personal interest to subvert all manner of Justice This therefore not being the meaning of the Law we are to inquire what it is and the thing is so plain that we cannot mistake unless we do it wilfully Some name must be used in all manner of Transactions and in matters of publick concernment none can be so fit as that of the principal Magistrate Thus are Leagues made not only with Kings and Emperors but with the Dukes of Venice and Genoa the Avoyer and Senat of a Canton in Switzerland the Burgermaster of an Imperial Town in Germany and the States-General of the United Provinces But no man thinking I presume these Leagues would be of any value if they could only oblige the Persons whose names are used 't is plain that they do not stipulate only for themselves and that their stipulations would be of no value if they were merely personal And nothing can more certainly prove they are not so than that we certainly know these Dukes Avoyers and Burgermasters can do nothing of themselves The power of the States-General of the United Provinces is limited to the points mentioned in the Act of Union made at Vtrecht The Empire is not obliged by any stipulation made by the Emperor without their consent Nothing is more common than for one King making a League with another to exact a confirmation of their Agreement by the Parliaments Diets or General Estates because says Grotius a Prince dos not stipulate for himself but for the people under his Government and a King deprived of his Kingdom loses the right of sending an Ambassador The Powers of Europe shewed themselves to be of this opinion in the case of Portugal When Philip the second had gained the possession they treated with him concerning the affairs relating to that Kingdom Few regarded Don Antonio and no man considered the Dukes of Savoy Parma or Braganza who perhaps had the most plausible Titles But when his Grandson Philip the fourth had lost that Kingdom and the people had set up the Duke of Braganza they all treated with him as King And the English Court tho then in amity with Spain and not a little influenced by a Spanish faction gave example to others by treating with him and not with Spain touching matters relating to that State Nay I have bin informed by those who well understood the affairs of that time that the Lord Cottington advising the late King not to receive any persons sent from the Duke of Braganza Rebel to his Ally the King of Spain in the quality of Ambassadors the King answered that he must look upon that person to be King of Portugal who was acknowledged by the Nation And I am mistaken if his Majesty now reigning did not find all the Princes and States of the world to be of the same mind when he was out of his Kingdom and could oblige no man but himself and a few followers by any Treaty he could make For the same reason the names of Kings are used in Treaties when they are either Children or otherwise uncapable of knowing what Alliances are fit to be made or rejected and yet such Treaties do equally oblige them their successors and people as if they were of mature age and fit for government No man therefore ought to think it strange if the King's name be used in domestick affairs of which he neither ought nor can take any cognizance In these cases he is perpetually a Minor He must suffer the Law to take its due course and the Judges tho nominated by him are obliged by Oath not to have any regard to his Letters or personal Commands If a man be sued he must appear and a Deliquent is to be tried coram rege but no otherwise than secundum legem terrae according to the Law of the Land not his personal will or opinion And the judgments given must be executed whether they please him or not it being always understood that he can speak no otherwise than the Law speaks and is always present as far as the Law requires For this reason a noble Lord who was irregularly detain'd in prison in 1681 being by Habeas Corpus brought to the Bar of the King's Bench where he sued to be releas'd upon bail and an ignorant Judg telling him he must apply himself to the King he replied that he came thither for that end that the King might eat drink or sleep where he pleased but when he render'd Justice he was always in that place The King that renders Justice is indeed always there He never sleeps he is subject to no infirmity he never dies unless the Nation be extinguished or so dissipated as to have no Government No Nation that has a sovereign Power within it self dos ever want this King He was in Athens and Rome as well as at Babylon and Sufa and is as properly said to be now in Venice Switserland or Holland as in France Morocco or Turky This is he to whom we all owe a simple and unconditional obedience