given by Bracton and Britton and Fortescue's foolish Etimology There must be a Prerogative somewhere in all Places There is a Prerogative in Kings by the Law of Nations and the Use of it is to shew Mercy to reward Virtue 'T is the Law that punisheth not Kings and because there is no written Equity in Criminal or Capital Matters therefore the Seat of Mercy is placed by the Fountain of Justice This is no doubt properly and truly to be God's Vicegerent Thus with us Potest Rex ei lege suâ Dignitatis Spelman Gloss Praerogativa Regis Condonare si velit Mortem promeritam Spoken of Edward the Confessor Though there is a sort of Equity by the Letter of our Law in the Case of Manslaughter making an allowance for the Passions of Men and the King's Pardon of Murder hath been question'd it looks like a Dispensing with the Positive Law of God It is certain he can't change the Punishment There are several Prerogatives and Flowers of the Crown some of Use some for Ornament but founded also upon Reason The King hath all Mines of Gold and Silver Treasure Trove Escheats of all Cities May take his Creditors into Protection till he be satisfied with Preference May take Body Lands and Goods of Debtor c. because the King's Treasure is supposed to be for the publick Benefit May make any Foreign Coin lawful Money of England by Proclamation for Exigencies may require it The King may dig in the Subjects House not Mansion-House or Barn for Salt-petre being for the Defence of the Nation Kings only can have Parks and Chaces and not Subjects without his License So Swans in Royal Rivers because they are stately Creatures and Royal Game and become the Honour of a King The King shall be said to be Founder though another join in the Foundation c. because 't is for his Honour The King shall have Ward though the Lands were held of him by Posteriority because the King's Title shall be preferr'd and not put in Competition with the Subject So he shall not be Tenant in common i. e. He shall have all because a Subject ought not to be equal with him in any thing There are also several other Franchises which by the Policy of our Law belong to the Crown And we say in our Law That the King's Prerogative is part of the Law of England and comprehended within the same We say also That the King hath no Prerogative but that which the Law of the Land allows him And 't is certain he is restrained in several respects by our Law as in a Politick Capacity Letting pass those Distinctions and Cant in Coke's 7th Rep. Calvin's Case of the King's Prerogative As he hath Advantages so he hath his Disadvantages also at least Kings or others for them are apt to call them so Thus he can't by Testament dispose of the Jewels of the Crown 't is doubted whether he may legally pawn them though it be said he may give them by his Letters-Patents 't is against the Honour of the Crown The Law is so jealous of the King's Honour that it hath preferr'd it before his Profit He hath no Prerogative against Magna Charta cannot take or prejudice the Inheritance of any Can 't send any man out of the Realm against his Will because he hath the Command of the Service of the Subjects only for Defence of the Realm Can 't lay any new Impost on Merchandises Can take none but usual and Ancient Aids and Taxes Can 't dispense with Statutes made for Publick Good or against Nusances or Mala in se Can do no Wrong Can 't alter the Law Common or Ecclesiastical Nor Statute-Law or Custom of the Realm by Proclamation or otherwise Nor create any Offence thereby which was not an Offence before Can 't grant a Corporation any new Jurisdiction to proceed by Civil Law because it may deprive Subjects hereby of Privilege of Trial. The King can't put off the Offices of Justice of a King is not suppos'd to be ill-affected but deceiv'd and impos'd upon and abus'd Eadem presumitur mens Regis quae est juris c. But the late Sticklers for Arbitrary Power have found out a Plea for the Absoluteness of Kings which as they think carries some Face of an Objection against the fettering their Prerogative Say they At this rate a King can never exert himself as he ought to do any Glorious Action or as King James the II d phras'd it to Carry the Reputation of a Kingdom high in the World He cannot extend his Conquests c. No matter whether he can or not Neither can he oppress his Subjects It is sufficient for Kings especially for a King of Great Britain to be on the Defensive by Land neither do I believe any of our Kings ever got any thing by extending their Dominions 'T is no Argument to us in our Situation if the matter were so But this Notion is a Mistake For never did any King do extraordinary Feats where he made War and carried it on against the Inclinations or without the Consent of his People The Fights with the Dutch at Sea in the Reign of King Charles the II d is a sufficient Instance of this Nature We fought against the Grain and without an Enemy as Sir William Temple observes Nor shall we find in History that any King hath continued his enlarged Bounds where he carried on Imposts and Taxes by Violence at Home to the Impoverishing of his People Let the End of this present French King be observ'd who seems to stand an Exception at present but he stands a very ticklish one Besides the true Interest and Advantage of our Island lies another way To maintain the Sovereignty of the Seas to promote Trade and Traffick c. And to this purpose the King hath the highest Prerogative in this Element He may press Men for this Service which he cannot for any Foreign Expedition by Land He hath Customs Tunnage and Poundage c. Yet not these without Consent in Parliament and some of our Kings have made but a scurvy Experiment in attempting to take them without it Whence then doth come this Title to Arbitrary Absolute Power It must be the Child of Conquest or some other Paramount Inherent Right And to this purpose it is objected That by our Laws we acknowledge several Rights and Privileges of the Subject to be Concessions from Kings and we yield the Lands to be holden immediately or mediately of the Crown c. This is pretended to sound in Conquest rather than Compact or to be founded on the Patriarchal Right And Sir Robert Filmer especially is pleasant upon Sir Edward Coke for this He says If the first Kings were chosen by the People as many think they were then surely our Forefathers were a very bountiful if not prodigal People to give all the Lands of the whole Kingdom to their Kings with liberty to them to keep what they pleas'd and to
others he himself made the Laws a Measure of his Prerogative It will not be worth Enquiry Whether he first Instituted a Parliament in the Form it now stands He raised Money in a Parliamentary way we find in his First Parliament at Salisbury he obtained Three Shillings upon every Hide of Land towards the Marriage of his Daughter with the Emperor although 't is said there these Aids were due by Common Law from the King's Tenants by Knight's Service viz. Aid to Ransom the King's Person Aid to make the King 's Eldest Son a Knight and Aid to Marry the King 's Eldest Daughter once And although this matter was ascertain'd afterwards by King John's Charter at Running-Mead yet following Kings have not been so tender and reserv'd in this Point If he may be said to be Cruel to his Brother Robert I 'm sure he was very Honourable towards Lewis of France when in England whither he came on his own Head notwithstanding he was Solicited and Tempted to make him away As to his Personal Virtues or Vices they were to himself If he fail'd in the Oeconomicks he had Troubles in his own House and whether his Misfortunes of this kind were occasioned by Judgments or the Follies of himself or Wife it is certain he had his share of them but he took so much care that the Nation knew but very few troubles during his Reign And as he obtained a Kingdom by a sort of Artifice so he used his Prerogative with Discretion STEPHEN THIS King's Reign was almost one entire Scene of Military Actions without any mixture of Civil Policy he did not live a Year to Enjoy or Manage Peace after his Agreement with Henry II. the Son of Maud And there was never any formal Meeting of the Body of the Estates in his time The Expences of his War were occasioned by a troubled Title and he maintained them by Confiscations and although he had continued Charges that way yet he required few or no Tributes from the People 'T is said he had another way of getting Money viz by causing Men to be Impleaded and Fined for Hunting in his Forests after he had given them Liberty to Hunt there For thus far at least the Kings Exercised an Absolute Prerogative only over the Beasts of the Forest Which is a Prerogative I confess they ought to Enjoy Indisputably HENRY II. THOUGH this King came to the Crown by the most Absolute Title and Clearest Right yet in Four and thirty Years time we do not find that he pretended to impose upon his People any Arbitrary Power but by Success and Policy he added to the Crown of England Scotland Ireland the Isles of Orcades Britain Poytiers Guyen and other Provinces of France And for all this he had only one Tax of Escuage towards his War with France His causing the Castles to be Demolished was a justifiable piece of Policy for the reason given as being Nurseries of Rebellion In the beginning of his Reign he refined and reformed the Laws and 't is said made them more Tolerable and Profitable to his People than they were before and what is better Governed himself by them We do not find the Punishments of Capital Offences or others were certain but variable and distinguished in the same Crime according to the degrees of Aggravation The Church-Chroniclers bestow a Judgment upon him for refusing to take the Protection of the Distressed Christians in Jerusalem offered to him by Heraclius the Patriarch and assign his Troubles at Home to that Cause but they might be mistaken and he might as he apprehended have had greater from his own Sons if he had gone Abroad upon that Errand And if the Church will forgive him the Story of Thomas Becket for he was otherwise very Civil to it the State had no reason to complain of him for he suffered neither his Wars nor his Pleasures to be Chargeable to the Nation nor his Concubines to be Spungers on the People RICHARD I. THERE is but little Observable in the Reign of this King with relation to the Subject at Home he being the greater part of it out of the Land If his Artifices of Raising Money were not Justifiable the occasion may at least Excuse him He obtained a Subsidy towards his necessary Charges of War what was properly called Taxation was by Parliament or by the Subjects own Contribution and Method of Charging themselves with as the Money raised for his Ransom If he may be charged with some slips in Justice he made it up in Courtesy which by the by goes a great way with Englishmen for 't is observed they may be Led tho' they will not well Drive And upon his return Home from the Holy Land we find the first thing he did was to give his Lords and People Thanks for their Faithfulness to him in his Absence and for their readiness to Supply him for his Ransom JOHN MOntaigne says in one of his Essays and he speaks it upon Observation of History That Women Children and Mad-men have had the Fortune to govern Great Kingdoms equally well with the Wifest Princes And Thucydides That the Stupid more frequently do it than those of better Understanding Whether this be an Argument of a Providential Disposing and Governing of Kingdoms I leave to those that are conversant that way Some Men perhaps may be apt to think it reflects Disgrace on Dignities if this be true Some Kings are involv'd in such a Cloud of Circumstances of Difficulty and Intrigues that there is no looking into them nor making any Judgment of their Actions Speed guesses of King John That if his Reign had not fallen out in the time of so Turbulent a Pope such Ambitious Neighbour Princes and such Disloyal Subjects nor his Story into the Hands of Exasperated Writers he had appear'd a King of as great Renown as Misfortunes This is civilly and gently said This is certain This King as all others when once they have broke through their Coronation-Oath presently became as it were infatuated and deaf to all good Counsel stoop't to every thing that was mean and base and having once laid aside his Native Honour run into all Dishonourable Sordid Actions The History represents him pursuing his Profit and even his Pleasures by all manner of Injustice He prosecuted his Brother Geoffry Archbishop of York and took from him all he had only for doing the Duty of a Wise and Faithful Councellor Hence his Lords grew Resty and refused to follow him into France unless he would restore to them their Rights and Liberties which he had invaded And when he shuffled with them in the Grant of their Demands What Wars what Miseries did not follow Wars at Home Foreiners call'd in the Nation plunder'd and spoil'd Money procured by Base poor-spirited Tricks He on one Side forc'd to truckle to the Pope and as is said to submit to somebody worse his Subjects on the other hand calling in to their Relief as they thought a Foreiner fetch
give the Remainder to their Subjects clogg'd and incumbred with a Condition to defend the Realm This is but an ill sign of a Limited Monarchy by Original Constitution or Contract At this rate a Man who writes with the Fancy of a Government may expose any thing even himself But why doth this necessarily follow May not several Privileges and Powers be lodged in the Crown for Conformity and Dignity of Government by Consent And so May not Estates or the Lands of a Kingdom be divided by Contract with the acknowledgment of the Tenure and to express the Service How come Lands to Escheat to the Crown for they are forfeited for Treason I mean of Cities but that there is no Heir How comes the King to have the Year Day and Waste of Lands which Escheat to the Lord By what Law if not of Contract To say they moved from the King and were Limitations of his Bounty is as much suppos'd on the other hand and gratis dictum If he had virtually all Lands Why not all Goods c. too No man will say that If he had I confess there would be then no use of Parliaments But to proceed the King by his Prerogative may Call and Prorogue and Dissolve Parliaments By what Law had he this Prerogative If not by Law of Compact and Consent of Necessity to avoid Confusion for if he could Command his Subjects Purses c. there could not otherwise be any Original use of them He might and would no doubt have call'd and made use of only a Privy or Cabinet Council or Cabal for after this way of Inference no King would certainly have Clogg'd himself with the impertinent Formalities of a Parliament their Predecessors were very Weak or Prodigal to Clip their own Wings and give their Subjects a share in the Legislative Power This is but an ill sign of an Original Absolute Arbitrary Power And 't was upon this pretence though those Gentlemen don't care to own it That they would have endeavoured to Disengage their King from the use of Parliaments and would conclude That the King might chuse whether he would ever call any or not at least in this Form Thus they would beg the Question and presume the Consequence on their side because equally absurd The King may Proclaim War c. Does it follow therefore that he may make it without other Heads and Hands Thus they confound the Executive and Legislative Authority They say Scribling is a sign of a Licentious Age and some think of a Decaying State too Ought not some Creaturs to be Muzled There were many odd sort of extravagant Books published on Subjects of this Nature in the Reign of King Charles the II d not without Reason as we may suppose But all these violent pursuits in both Extremes are suspitious and where all Parties mean nothing but the Publick Good there 's nothing of this nature worth contending for And whoever will reflect on the Circumstances and Occasions or Times of such Publications and the advancing these high-flown Notions with a little pains of Comparison will easily see through the Mystery of their Policy It is very extraordinary That Subjects make Kings Conquerors in spight of their Teeths and against their own Professions and Declarations on purpose to make themselves Slaves by their own Consequence though this really is neither the true Signification nor Import as Mr Spelman makes appear in his Glossary let them take it in their own sense but we may assure our selves they did not intend to inslave themselves They tell us That William the I st was a Conqueror and therefore we were all Slaves c. though at other times Force and Success will make no Right Yet afterwards they also tell us when we come to insist on our Rights as Subjects That Magna Charta was obtained by Force c. What then So had the Crown been before it seems by them Either the People of England had some Legal Rights before the Conquest or not If they had as is confess'd 't was time to endeavour the Restoring of them If William the I st were an Intruder and came in by Force of Arms only he was but a Successful Usurper and the People being under a Force could not lose their Rights If he came in with pretence of Title Title continued them in their Rights and either way was justifiable I am engaged in this matter before I am aware and beyond my first intention and I shall meet with these Gentlemen anon But not to forestal you in the History I can't avoid a Hint upon those times being upon Magna Charta and that being by that Act declared to be Declaratory of the Fundamental Rights and Common Laws of the Realm To shew the Arts of Debauching Kings and the end of such Attempts in one previous Instance Hubert de Burgo as you may see in Sir Edward Coke's Preface to Magna Charta c. meaning to make his step to Ambition which ever Rideth without Reins persuaded and humoured that King That he might avoid that Charter of his Father King John by Duress and his own great Charter and Charta de Foresta also for that he was within Age whereupon the King got one of the great Charters and that of the Forest into his Hands and by his Councel unjustly Cancell'd both the said Charters though this Hubert de Burgo was Primier Witness of all the Temporal Lords to both the said Charters whereupon he became in high Favour with the King c. But soon after for Flattery and Flatterers have no sure Foundation he fell into the King's heavy Indignation and after many fearful and miserable Troubles he was Justly and according to Law Sentenc'd by his Peers in open Parliament and as justly Degraded of the Dignity which he had unjustly obtained c. So that other Notion of Paternal Right is as Extraordinary This takes a short way and makes Mankind Rebels from the Creation or from the Flood Who could have imagined That this Paternal Dominion from Adam could have been inferr'd from that Expression of the Psalmist The earth hath he given to the children of men Which Sir Robert Filmer learnedly says Doth shew that the Title of Government comes from Fatherhood Methinks it seems a more plausible and literal Argument to Exclude Fathers or to lay them aside as they do in some Countries at such an Age Why have not this Party a scruple of Conscience about all other Variations of Government even by God himself At this rate they ought to procure Masses for the Souls of their Progenitors who lived in the Heptarchy It is certain no body living under any Commonwealth can hope to be Saved as remaining in a continued state of Rebellion Thus they create a double Obligation on Men and harrass their very Souls between their Natural and Political Parents in virtue of the Fifth Commandment But as much a Frenchman as he seems to be I know not how he will excuse
bind him but what proceeds from his own Mouth nor that neither any longer than he pleases and by vertue of such a Traiterous Legerdemain a Prince is to be distinguish'd oft and absolv'd from a Coronation-Oath and our Allegiance to be transpos'd or inverted by a barbarous Contradiction of the Term into a subsequent Obligation And the Duty of Obedience must shift with the Wind because the Weathercock was placed upon Churches in pious memory of St. Peter who besides denying Christ preach'd as 't is said the Doctrine of Passive Obedience also I 'm sure if this be true morally speaking 't will be nonsense and to no purpose to pretend to establish any Laws in Church or State And our Ancestors had been ev'ry jot as well employ'd at Push-pin or with Socrates and his Boys playing at Cob-Nut or riding the Hobby-horse with as good a grace as contending for Magna Charta All Government in short without the immediate hand of Heaven which we are not taught by God or instructed by the Events of Story to rely on or expect will at this rate of Argument become utterly impracticable and must degenerate into Confusion So on the other side the misapplication of the Constitution of Government may be almost as fatal as the throwing it off As for instance in a Mixt or Limited Monarchy where the Ingredient Qualifications are not duly observed and fairly maintain'd Sometimes these Forms have prov'd but Snares on the Subjects Liberties and Properties Thus it is when one part of the State encroacheth upon the others and 't will be the same thing when they have all together or two of them too close and united a Correspondence and Intelligence and the Trinity in Unity or Vice versa if I may so speak are confounded and consolidated The one part of the Body represented may thus as well be betray'd out of its Rights as huffed out of them in the other Case Where-ever a Constitution is not preserved in its primitive force and dignity according to the true intent thereof some part may and must suffer A Legislative Power may be as pernicious as an Executive for 't is far from impossible that Injuries may be done under the Colour and Mask of Laws Sir William Temple quotes Heraclitus for saying The only skill or knowledge of any value in the Politicks was the Secret of governing all by all And he afterwards remarks That what Prince soever can hit of this Secret need know no more for his own Safety and Happiness or that of the People he governs For no State or Government can be much troubled or endanger'd by any private Factions which is grounded upon the general Consent and Satisfaction of the Subject Happy Kings if they would be contented to have kept within the Confines of such Measures But this is a Doctrine which will not go down with Kings Thus Germany flourish'd till Charles the Vth's time who introduced higher Reasons of State till the Jesuits taught the way of bringing the Sovereign Power from the States to the Empire What hath Spain got by the pretence of an Absolute Power i. e. Oppression It lost Portugal it lost the Low Countries c. And in truth the Kings of Spain have exerted their Power so far till they have lost it all and by Trick of Favourite-Ministers and other Politicks interchangeably transacted and shuffled between them and the French Kings they are now at last scarce in a Condition by virtue of such Arbitrary Extravagancies to defend themselves The Princes of Italy who are so Absolute only betray their own Weakness by it And though France at present may seem to flourish outwardly yet who knows not that She groans in her Bowels Indeed Sir Robert Cotton is unhappily mistaken in his Conclusion touching England That it cannot groan under a Democracy which it never yet felt or fear'd And the late Times under King Charles the First seem to be an Instance to the contrary and an Exception to that Rule But then the Reasons are given by him but just before viz. That such a Government suiting thus with Monarchy must strictly maintain its Form And I doubt 't was something like affecting at Arbitrary Power exclusive of his Parliament at least the House of Commons which brought that Unfortunate Monarch within the Exception to the Rule and the Rule may stand good still Generally speaking Trick and Fraud seldom make a Second Advantage and Matchiavel after all his Noise instances only in Alexander the Sixth who he says thriv'd by it yet mark the End he at last was poyson'd by a Fraud prepared by his Bastard Borgia for another The French have a Saying L' Addresse surmonte la Force But I suppose they are not so harden'd to extend this to all Frauds and Falsifications There are some Honest Politicks and Stratagems which a Man of Honour may lawfully use no doubt in War in Peace in Treaties Honest if only that Custom hath given them a sort of Sanction Though by the by of old these Methods were despised by the Braver Heroes even before Christianity which allows us to be Wise as Serpents but Innocent as Doves But all that I contend for in Modern Politicks is the Exercise of Justice and Honour which is or ought to be the Peculiar Character of Kings And that Sincerity is the likeliest Principle to establish a Nation And must hold with Padre Paolo That open Honesty and Plain-dealing at last will prevail against Trick and Artifice All Laws of Power are or are supposed to be founded on the Law of God and 't is said Righteousness supports Crowns For God's sake What is the Moral of Prerogative What is the End of this Absolute Power Whence do Kings derive this superlative Talent of controuling Mankind Is it that they have been stiled and courted as Gods or their Representatives Alas we find they represent Man in Understanding and Failings 'T is not therefore that they are inspired with any greater Degree of Perfection or Wisdom No we find by Experience they are in this like other Men subject to the same Passions and Infirmities As King James the First said They differ not in Stuff Their Natural Advantages do not afford them such Superiority and Pre-eminence in Power with any Justice of Human Reason This great Deference and Submission which they claim as due to their Character must be either That God once vouchsafed them his Supernatural Assistance or That now Kings are presumed to have the Assistance of a Better and Wiser Council If the first the Signs are vanished if the latter 't is confess'd due subject to the Rules and Forms of the General Law of Nations and the Municipal Laws of the Land on supposition that Kings act and labour by the joint Concurrence of Wise and Legal Councels for the Publick Good of the Common-wealth Hence it is that they are endow'd with greater Privilege Hence it is that they are intitled to what is call'd Prerogative to pass over the Definitions
Pharamond for introducing the Salique Law nor the Nobless of the Country for encouraging it for the Commandment says Honour thy Mother also I hope Sir Robert Filmer had no Gavelkind Land the Custom of Tanestry and Borough English must also be abominable in his sight which to other Men seem to be built upon good natural Principles of Reason But seriously what indifferent Person if there can be any such in the World will without indignation digest such sort of Debates After the same fashion Sir Robert Filmer gives us farther to understand He cannot learn That either the Hebrew Greek or Latin have any proper Original Word for a Tyrant or Slave it seems these are of late invention and taken up in Disgrace of Monarchical Government Why not more Charitably as well as more truly from the Experience of the Abuses in the Exercise of such Monarchical or Absolute Powers And he himself had given the reason but just before viz. That the Greek and Latin Authors liv'd in Popular Governments For which reason no doubt there was no occasion for such Monstrous and Barbarous Terms But he could not be in earnest in this Observation I must appeal from his Sincerity to his Judgment He does well to bar all other Schemes but his own He forbids us to rely on Aristotle the Grand Master of Politicks or the Greek or Latin Historians who liv'd in Popular Times Though Monsieur Rapin allows Aristole c. to be us'd in Divinity and says St. Thomas and other Divines have us'd him with good success But others and they Divines and Bishops too have lately told us That we are not to rely on Scripture in such Cases In what a condition is poor Subject Man And what was all this to the purpose when Scripture it self doth not peremptorily conclude us but leaves us at large to the Laws and Usages of Countries to the Ordinances of Man as Sir Robert himself confesses though with a lamentable strain upon St. Paul and St. Peter Every one saw what was aim'd at and offer'd by way of deduction from those Topicks of Doctrinal Government But because Sir Robert sends us to France to School to be inform'd in our Constitution and very much affects French Policy for he wrote in a time when the French Air was predominant let us see whether the Kings of France themselves did always talk in this Language Whether they have been continually so uniform in this Fancy of Absolute Power for the disposing of themselves and their Kingdoms Francis the First who was Contemporary with our Henry the Eighth and as Haughty a Prince and was attended with the Flattery of Courtiers too when he was taken Prisoner at the Battel of Pavia afterwards for Answer to the Proposals sent him by the Emperor for his Release amongst other things says That they were not in his power because they shock'd the Fundamental Laws of France to which he was subjected c. After he was at liberty having call'd an Assembly of the most Notable Persons of the Three Estates of the Kingdom for their Advice touching the delivery of his Children and himself proffering to return to Prison if they thought fit Their Orders all answer'd separately That his Person was the Kingdom 's not his and as touching the restoring of Burgundy That it was a Member of the Crown whereof he was but Usufructuary That therefore he could not dispose of the one or t'other But withal they offer'd him Two Millions of Gold for the Ransom of his Children and assur'd him That if it must come to a War they would neither spare their Lives nor Fortunes I 'm Mez. Chron. 587. sorry no Precedent will serve for our Imitation but only that of the present French King and his Ally the Great Turk In the sense of these Authors theirs must be the only Apostolick Orthodox Institution We are told also That there is a Place where whenever the King spits the greatest Ladies of his Court put out their Hands to receive it And another Nation where the most Eminent Persons about him stoop to take up his Ordure in a Linnen Cloth And other People where no Subject speaks to the King but through a Trunk and there are no doubt several other such like Fantastick Customs of Submission and Idolatrous Reverence What then Every Land is still nevertheless to be guided by its own Customs and Laws And I wish some of these Absolute Arbitrary-Power-Sparks liv'd in one of the last mention'd Places In earnest Flattery is a most sordid and pernicious Vice and we were lately very near drawing down Judgments on our selves for it and had like to have suffer'd for pretending to offer Sacrifices which were never meant This Stuff of Passive Submission to Arbitrary Tyrannical Powers could never be offer'd to sale in a true Light The Doctrine would stink in the Nostrils of a Good King who had any thing of Virtue Piety or good Nature A King who to use the words of King James the First Acknowledges himself ordain'd for his People having received from God a Burthen of Government whereof he must be Accountable and a good King thinketh his highest Honour to consist in the due Discharge of his Calling and employeth all his study and pains to procure and maintain by the making and executing of Good Laws the Welfare and Peace of his People and as the Natural Father and kindly Master thinketh his greatest Contentment standeth in their Prosperity and his greatest Surety in having their Hearts This as to the Political and Moral part of Government And as to the matter of Religion What is it but to inspire a King with Persecution What must this come to when Kings have different Educations and different Tutors to catechize them if the Civil Establishment be not our Standard and the Law our Protection in Church as well as State As to the Case where the King and the Laws are of the same persuasion If Recusants and Dissenters are so unfortunate as to fall under a Prosecution for their particular Opinions be it at the peril of the King's Conscience and those who advise him but here and here only is the true Notion of being Passive and I must confess I can't tell how to help them Here I think they must suffer and not resist but fly to another City if they do not like that where the Government legally sits upon their Skirts Though I know some don't allow the Legislative Power to intermeddle with Religion as having too much a Lay mixture for the Pallet of the Church Yet for my part I do not see how otherwise we could maintain any Establishment in it For though since the Reformation the King as Head hath the Supremacy devolv'd on him and 't is consented that he may make Canons to bind the Clergy even without a Convocation yet as the Church does not allow him to speak with his own Mouth or Act with his own Hands in the Administration of Essentials of Religion
have been so artificially debated and the Laws of God and Nature the Law of Reason and that of Nations so partially and slily as well as learnedly confounded that the true Idea of our own Government and Law was perplex'd and lost So that no wonder if Mistaken Principles sometimes misled King and People where they might mean well enough both and at other times either King or People might have a latitude of construing them perversely when they did not so Now though 't is confess'd we cannot arrive at any degree of Perfection in Government nor any thing else here in this troublesome uncertain World Yet Experience convinceth us That some Times have been better than others and that this Nation hath been happier under some Princes than Others i. e. happier under those whose Conduct and Government have agreed best with the Laws and Constitutions The only Design of these passing-Observations and Reflections is to point out the Errors and set a Mark on the Rocks that we may avoid them To shew Kings and People the Principles and Practises by which they Miscarried or Succeeded upon Rational Grounds and Natural Consequences so that Measures may be taken which may more probably secure the Peace and Welfare of this Nation for the future I go no farther back than the Conquest or Descent here by King William the First That being as I think enough for our Instruction enough to Inform without confounding our Memories and Judgments WILLIAM I. NOT to play the Grammarian on Words nor to repeat Old Stories though I can scarce pass by Mr. Spelman's Definition of him Conquestor dicitur qui Angliam conquisivit i. e. acquisivit purchas'd non quod subegit But to take William the Conqueror as they call him in the usual Acceptation there can be but little Observable during the Transactions of his Reign to ground Remarks of Civil Policy As he trimmed between Conquest and Title by Gift from Ed. the Confessor he was also Kin by his Mother's side so he divided his Government between Acts of Justice and Wrong not to mention the old Story of Warren the Norman and Sharnborn an Englishman It is plain the Kentishmen had their Laws Confirm'd to them by Treaty and were never Conquered He granted to the City of London their Charters as they had them in the Time of Saint Edward 'T is true he Alter'd the Laws and introduced the French Language but the Alteration seems to be for the better and he was generally Just to the Laws which were made He alter'd Pastimes also and 't was of course for Englishmen are ever fond of New things The worst thing he did was Depopulating so many Towns and overthrowing so many Churches for Thirty Miles round to make a Chase or New Forest in Hampshire and the Execution of severe Laws against Destroyers of Deer or Game by putting out their Eyes c. for which for ought I know his Two Sons and Nephew might come to untimely Ends in the same place But in the main he was modest enough for a Prince who came in with his Sword in his Hand And at last after all his Bustle he was forced as it were to come to a Parly with the English Nobility and before they laid down their Arms this mighty Conqueror engaged for Peace and after in the presence of Archbishop Lanfrank and others took a Solemn Oath upon the Evangelists and all the Relicks of the Church of St. Albans from thenceforth to Observe and Keep the Good and Ancient Laws of the Realm which the Noble Kings of England his Predecessors had before Made and Ordained but especially those of Saint Edward which as is said were suppos'd of all others to be the most Equal and Indifferent for the general Good of the People If the Churchmen can Forgive him for he Repented of it the taking them down somewhat in their Temporal Power and calling in the Jews they may forget his Ransacking the Monasteries if thep please also because he spared the Profits of Vacant Abbies and Bishopricks His Life ended in a Circle and as he pretended to take the Crown by Gift so he disposed of it and left it by Gift also WILLIAM II. DURING this King's Time the Government and Laws seem to be in a continued Ferment and State of War As he was attack'd on all Hands and put to great Charges so he spared neither Church nor State for Taxations but pillaged both in an unreasonable extravagant manner It is said he doubted of some Points of Religion but one would rather believe he doubted of it all by his Life and Expression to the Jews and the Management of Churchmen and their Benefices and Religious Houses He Died so suddenly that he had not time to tell his Opinion at his Death If he did not keep his Word so devoutly as he ought if he was trifling in things appertaining to Religion and profanely free with the Patrimony of the Church the Historians of that Age have assign'd him the Judgments of God in the End and I shall leave him to the Pope's Mercy for with-holding Peter Pence In this King's Reign we find the first Exercise of a Prerogative which seems reasonable and natural enough in forbidding his Subjects by Proclamation to go out of the Land without License if it had been grounded on a good Design but being introduced only first to make his Subjects uneasy at Home and after to get Money out of them for a License to go Abroad the Occasion disgraceth the Thing which otherwise had been justifiable on a true foundation viz. To require the Service of the Subject at Home for the Command of the Aid of the Persons of his People is as much an inherent Right in the Crown as any can be in his own Dominions though not so to Command them out of them on his Service Abroad He also kept his Money from going to Rome and I suppose we ought not to be Angry with any King for keeping his Men and his Money at Home HENRY I. THEY who Write this King's Life do so vary in his Character that it is somewhat difficult to Adjust it But we always ought to speak the best of Kings if the matter will any ways bear it Whether he came to the Crown with a just Title or not he came with a just degree of Understanding and Inclinations to do Justice He was Born of a King in England and Queen of Royal English Blood as Sir John Hayward says though I know not how he makes it out well and is said therefore to have raised the Depressed English Nation again unto Honour and Credit and took off their Badges of Slavery and seems truly Endowed with Kingly Principles though Cambden will have it That he was Just even to a Fault Pray God That were the only Fault of Kings Whatever hath been said to his Disadvantage he appears for the most part to have Governed by the Laws of the Land And as he gave a Measure to
giving the Pope a Lifting-hand and rais'd his drooping Head here so early after the Reformation and when at the same time the Protestants in Germany France and the Low-Countries were groaning under a Persecution Which made Du Plessis complain Que Sa Majestie D'Angleterre trop arreste à quelques petits dissensions entre les Siens n'evoit pas assez de soin de la guerison de plus profondes playes qui sont en l'Eglise and which made the House of Commons Petition and Remonstrate in the Force of Fourteen Reasons and Ten Remedies in the XIXth Year of his Reign which had only this Effect to make him fly to his old Refuge of Prerogative with a Huff And that the Mariage of his Children Peace and War c. were Matters of State and Government above their Considerations And Speeching it backwards and forwards which he took great Delight in till his Son-in-Law was despoiled of his Ancient Patrimony which he at last ingenuously confess'd was through his Default Here 's the Effect of Prerogative These Proceedings I suppose put Sir Robert Cotton upon Enquiry what the Kings of England had done in the like Cases And after great pains in the search of Records he informs us That the Kings of this Nation ever since the Conquest so soon as they were cool enough for Councels have usually consulted with their Peers in the great Council and Commons in Parliament of Mariage Peace and War He might have said before the Conquest also for Harold who had promised William Duke of Normandy to take one of his Daughters to Wife Answers That he should be very injurious to his own Nobility if he should without their Consent and Advice take a Stranger to Wife If we look into our Neighbour Kingdoms Mezeray will tell us That the French during the two first Races and part of the third had a Right to intermeddle and controul the Mariages of their Kings and neither could the King make War without the Lords In earnest I know not whether Kings in Reason ought to be permitted to Converse with Ambassadors on t'other side of Forms upon their own Heads without a Quorum of their Councils For Nations generally send the sharpest Men on such Errands and sometimes Kings are not a Match in Politicks for them as it plainly appeared by this Story this King was not for Gondomar who outwitted him who pretended to be the wisest But King James came over to us Tinctur'd with his Scotch Notions of Monarchical and Sovereign Absolute Power without vouchsafing ever after to consider the English Constitution and he lets us see what Opinion he had of Parliaments in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wherein he Advises his Son to hold no Parliaments but for Necessity of new Laws which would be but seldom Not it seems for the State Matters of War Mariage c. No not for raising Money neither so long as he could get it by Privy-Seals and Benevolences Besides after all he did not come hither without some Prejudices to the English People though he had none to the Crown of England Thus there may seem to be some inconveniences in a Learn'd Crown'd Head This King thought himself too Wise and too Knowing He was above Advice or Instruction because as he thought he was capable of giving it He was too wise in himself to be taught by others and yet not wise enough always to follow those Rules of Wisdom which he had given As is evident by the Observation of his Theory and Practice and by his inconsistent Directions to his Sons Henry and Charles He was a little too much addicted to the Pedantry of a Scholar and affected with Polemical Controversies in Words which he dreaded in Action Was more for determining Quarrels by the Pen than the Sword And perhaps might have made a better Bishop than a King a better Father of a Family than Country as being better seen in the Oeconomicks than Political Government of a Nation CHARLES I. MOntaign whom I confess I delight to bring in as often as I can though I know the Philosophers are angry with him for I do not pretend to be a better Politician or any thing else than he was The Grave have Gravity in them but I know not what besides says That about a Month since he read over two Scotch Authors of which he who stands for the People makes Kings to be in a worse condition than a Carter and he who writes for Monarchy places him some Degrees above God Almighty in Power and Sovereignty I 'm sorry there is no Medium and I know no Necessity for Either Who those two Scotch Authors were ev'ry one knows King James complain'd of one of them and advanc'd t'other as it always happens to them who stretch for Kings Such have been the Notions of Government in both Extremes and both were unhappily experimented in this Reign This King flush'd I doubt with such Authors as the last and perhaps withal observing what was done in France under Lewis the XIth who boasted that he had mis le Royaum hors du Page as he calls it and who as Mezeray observes had even Government without Council and most commonly without Justice and Reason Who thought it the finest Policy to go out of that great and beaten Road of his Predecessors to change ev'ry thing were it from better to worse that he might be fear'd His Judgment which was very clear but too subtle and refin'd as was that of King James was the greatest Enemy to his own and his Kingdom 's quiet having as it seems taken pleasure in putting things into disorder and throwing the most Obedient into Rebellion Who rather lov'd to follow the bent of his own irregular fancies than the wise Laws of the Land and made his Grandeur consist in the Oppression of his People c. And also in the Reign of Henry the IVth who gave the last stroke to Parliamentary Formalities and Huff'd the People into a new Law that from thenceforth the King's Edicts should be ratified on sight without those formal triflings of Dispute by Virtue of Living and Ruling always with his Sword in his Hand might conceive some such great Hopes These Reflections might perhaps inspire King Charles with the French Ayre of Grandeur but a People is sometimes quick-sighted too And hence on a sudden grew an impertinent as it then seem'd Jealousy between King and People One pretending to too much after one Author and t'other yielding too little by the other Whilst the former might be Nibbling at Arbitrary Power in an Extended Prerogative and the latter enlarging their Liberties somewhat beyond a modest bound and there were Courtiers in those Days also such as Philip de Comines observ'd in Court Language to Complement a King call'd it Rebellion to mention a Parliament and Lewis also was a superstitious Friend to the Church whilst he was assaulting and oppress'd the State In these and such like Circumstances of Notional
Englishmen remember That we now have an Act of Parliament of our side which Asserts the Rights and Liberties of the Subject and hath Establish'd the Settlement of the Crown and which incapacitates any Papist or Person Marrying a Papist from having and enjoying it which Act is only Defective in this That it is not Order'd to be Read in the Churches twice at least every Year and upon Penalty of Deprivation If such a Law had been made in Edward the VIth's Time it might have sav'd some Blood and Trouble since the Reformation WILLIAM III. THE Lord Chancellor Notttingham in the Case of the Duke of Norfolk and Charles Howard Esquire c. hath in my Mind a notable Expression viz. Pray let us so Resolve Cases here that they may stand with the Reason of Mankind when they are Debated abroad Shall that be Reason here that is not Reason in any part of the World besides In truth we are apt to be peculiarly Artificial in our Thoughts and way of Argument and our Reasonings are too Municipal Thus every little Pedant can Settle and Establish the Affairs of Religion and Government and can Resolve all the great Mysteries of Church and State as he thinks in his narrow Study But if a Man looks Abroad and takes a general survey of the World and reflects upon the Universal Notions and Customs of Mankind his Soul will become more enlarged and will not determine so Magisterially upon the Principles of any particular Sect or Society The Case of King WILLIAM in it self is perhaps the most Glorious and Generous Cause that hath appeared upon the Stage of Human Actions yet hath been sullied by dire Representations by poor-spirited and precarious Arguments which have been brought in for its support His Title to the Crown of Great Britain stands Firm and is justifiable upon Natural and Sound foundations of Reason without Props But hath been so oddly maintained by the manner of its Defence that it hath been the Justification only that hath Disgrac'd the Revolution Doctrina facit Difficultatem We have been running out of the way to fetch in Aids from Art and Learning whilst Nature presents us with obvious and undefiled Principles of Reason Thus the King's Accession to the Throne hath been introduced by shuffling between Providential Settlement Conquest Desertion Abdication and topping Protections of Power whilst Men of Honour and People of Honest Plain Understandings stand Amazed instead of being Convinced and hang back when Allegiance comes to be explained and a Recognition demanded an Association proposed frights us as a thing strange and impious which shews our Allegiance was not rightly founded but looks like a thing of Fancy built upon a forc'd and fictitious bottom All these ungrateful Terms have been ingeniously exposed by Mr Johnson except only Abdication which with submission is also too Artificial a Word not to be found in the Alphabet of Spelman a Civil Law Term used almost in Fifty several Senses and therefore an uncouth Expression of the Common Laws of this Realm to speak in The Word Forfaulture seems to have a plainer Signification to our common Understanding This as Forisfacere Forisfactum Forisfactura and Forfacere Forfactum Forfactura c. we find in Spelman and it signifies Rem suam ex delicto amittere sibi quasi extraneum facere Rem culpâ abdicere alterique Puta Regi Magistratui Domino abjudicare Forisfacere pro Delinquere peccare transgredi Injuriam inferre LL. Edw. Confess cap. 32. ut Codex noster MS. legit Aliqui stulti improbi gratis nimis consuetè erga vicinos suos foris facebant This agrees with the Sense of King James the I st his Speech to his Parliament viz. A settled King is bound to observe the Paction made to his People by his Laws in framing his Government agreeable thereunto And a King Governing in a settled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off Governing according to the Laws In which Case the King's Conscience may speak to him as the Poor Widow said to Philip of Macedon Either Govern according to your Law aut ne sis Rex And if a Subject's Conscience may not speak the same thing King James's Words signify nothing The other Words carry an Odious or suspected Construction in them the First in the Convocationstyle implies Guilt and at best creates but a Transylvanian Allegiance the Second is a Jest and false in Fact besides 't is what the King himself disowns the Third is an idle Sham as stated and the Fourth is also a little strain'd as I concieve and we might for ought I see as well have call'd it a Cession especially if King James was a Spiritual Person of the Society of Jesuits as hath been said But what need we any Term of Art Let the matter express it self by Periphrasis in its own genuine Phrase It is fairly stated in the Prince's Declaration And our Case is no more nor less than this A King contrary to his Coronation-Oath dispenses with and breaks through all the Established Laws of the Land Invades and Subverts the Rights Liberties and Properties of the People which he Swore to maintain inviolably and Dissolves the Constitution of Church and State in an Arbitrary Tyrannical manner the People therefore in Defence of their Laws Rights and Religion and the necessary Preservation of them Oppose the violent proceedings of such a Prince I put the Case at the worst and also apply themselves to a Neighbouring Prince who hath an Expectation of a Right to the Crown and pray in Aid of him to assist them in the Maintaining and Defending their Legal Rights together with his own Title to the Succession who in his own Words makes Preparation to Assist the People against the Subverters of their Religion and Laws and also Invites and Requires all Persons whatsoever All the Peers of the Realm Spiritual and Temporal and all Gentlemen Citizens and other Commons of all Ranks to come and assist him in order to the Execution of this Design against all such as shall endeavour to Oppose them to prevent all those Miseries which must needs fall upon the Nations being kept under Arbitrary Government and Slavery and that all the Violences and Disorders which have overturn'd the whole Constitution of the English Government may be fully Redressed in a Free and Legal Parliament to secure the Nation from relapsing into the Miseries of Arbitrary Government any more Upon which appearance of mutual Defence for Self-preservation the Conscious King Retires first leaves his Army which no Man I will be bold to say would do without Guilt or Cowardice and I 'm sure a Prince that had been Brave or acted upon Principles of Honour would have Fought it out with but Ten Regiments or with One at his Heels which was Richard the IIId's Case in the first sence though not in the later and after leaves the Realm for Reasons best known to
himself whether Frighted or not is not material upon which the Prince together with his Consort the next Heir Indisputable to the Crown in a full and due Representation of the whole Community and Body of the Kingdom is and are Declared and Appointed King and Queen Now let us see what we have done upon the whole matter to deserve that harsh Language of the Convocation-Book produced by Dr Sherlock Whether we have done more or so much as all other Nations have done in a Case any thing like Ours Whether we have done more than becomes Good Christians or Men of Honour And what it is that stands in our way to hinder or bar such an Attempt and Action First Setting aside at present those Texts of St. Paul and St. Peter which are the only discouraging Impediments and which have been sufficiently as I think answered and avoided by several Pens Upon the Law of Nature no Man I believe can pretend to say here is any Natural Injustice or Moral Injury done Certainly Nature and Reason prompt us to Defend Injuries and to Repel Force Nature will preserve it self in its Being No Man will say a King of England hath power of Life and Death over his Subjects We say he hath no Power other than by the Law of the Land the Moral as well as Legal Consequence must be That we may Defend our Lives against all Assaults 't is the same of Liberty and Property for there is a Meum and Tuum in all Christian Commonwealths as Archbishop Abbot said before subject only to the Laws of the Place therefore I can't defend my self or House against the King Arm'd with Legal Power as upon a Cap. Vtlagatum or upon a Duty due to him c. but I may where I am out of the compass of a Legal Prosecution If the consequence of Self-defence and Preservation be denied it 's vain trifling to talk of Laws and to value our selves upon Living in a Country where the Measures of Right are ascertain'd and the Limits of Government and Subjection the Doctrine of Passive Obedience and the Bow String will be the same if Laws are only a simple Direction for Information and not an Obligation We must owe our Lives c. at this rate to Fortune not to Justice But since the Restoration it 's said we are under another Tie not to take up Arms by the Extravagant Compliment to King Charles the II d and the Declaration pursuant to that Act. Be it so though all Laws made in Extraordinary Heats are not a regular Obligation but let them take that State-Artificial Obligation into the Bargain the King Swears too and this was not designed to let loose the King's Hands and tie the Subjects for all Obligations whether Natural or Artificial are Reciprocal and Mutual and always so taken and understood in common Intendment There can be no other Notion of Justice Natural Moral or Political and whatever Preference and Advantage is allowed to One above the Other 't is an Authority upon Supposition of Care Protection and for Order and centers in the Good of the Community And I think the Lacedemonians had a Law to Punish Parents who did not their Duty towards their Children Let us therefore take in the highest Instance of Obedience and Duty from Children to Parents No Man I suppose will pretend now that a Father may Castrate Sell or Kill a Child the Inference must be That in any Case of such open Violence a Son may Resist a Father in his own necessary Defence and Self-preservation without offering Reproach Injury or Vindictive Force So in the Case of Lunacy in a Parent or any fatal Extravagance no doubt a Son may lay Hands on a Father by way of Restraint and must take a continued Commanding Care over him in case of Relapse c. This is agreed on all hands to be the severest Tie of Obedience and therefore Kings are endeavoured to be brought within the Fifth Commandment to make our Chains the faster not in the mean time considering that they make them looser by putting an inconsistent double Duty upon us Thus we are told Religion stands positively in our way and fetters us with an Absolute Obedience to Kings without Reserve c. It seems hard that Religion should weaken our Arm in Defence of it self and force our Obedience and Submission to Laws and Absolute Power in the same breath For where there is Absolute Power there is no Law and where there are Laws there is no Absolute Power But Scripture is to be our Guide I agree it But what Authority shall I rely on Where shall I apply my self for an Interpreter 'T is manifest our own Church cannot settle me that is divided against it self Some bring Instances from the Old Testament Others tell us That is nothing to the purpose those Kings being by God's Designation c. Some tell us these Texts of St. Peter and St. Paul oblige us to Passive Obedience on peril of Damnation And Others as boldly and magisterially inform us That the New Testament gives no Rules for Submission to Forms of Government but only Rules of Justice Order and Peace That those Texts are nothing to Our purpose for the Apostles spoke to those under Heathen Emperors where Paganism was Established by a Law and that those Texts are to be only Expounded against the Jews who still believed themselves under the Divine Authority and thought they could not become the Subjects of any other Power As to the Scripture-Examples we are Taught by a very great Divine and Bishop not to rely on them and he says Those who place the Obligatory Nature of these Examples from Scripture must either produce the Moral Nature of those Examples or else a Rule binding us to follow those Examples especially when these Examples are brought to found a New positive Law Obliging all Christians Some say in general the Bible is a Miscellaneous Book where Dishonest and Time-serving Men may ever in their loose way find a Text for their purpose Sir Robert Filmer upon the Dispute of the Form of Powers for these Texts are sometimes applied to the Form and sometimes to the Quality of Power takes Power only in the Singular Number Powers in the Plural is a damnable Sin and he will have all Governments but the Patriarchal to be Illegal and Abominable but this is so Extravagant that I think none of our Divines pretend to justify him in it and therefore Others on the contrary are of Opinion That Submit to all Powers infers That all Forms of Government are admitted to be good and do not allow that Power in the Singular is to be taken restrictive and so there is no Authority if not of God and the Authorities which are of God's Institution are ordered under God Sir Robert Filmer Dr Hicks c. will have the Legislative Power to be in the King alone And the First says all Legislative Powers are Arbitrary But where is the necessity for