Truth We need only to lay open the nature and antient Power of the States General with the manner of their Behaviour towards those Kings who abused the Power committed to them to make it evident that the French Monarchy is limited in its Constitution Under the first and second Race of the Kings of France there was no mention of any Assembly of the States General but only of the Franks that is to say the Nobles and Prelats who were used to meet together on the first of May in the open Field where they deliberated with the King concerning matters of Peace and War and took Resolutions of what was to be done all the Year after After the breaking up of this Assembly the Court of the Royal Palace otherwise called the Court of France composed of the Prelats and Great Barons that is to say the immediate Vassals of the Crown met together five or six times a Year to take care of the Execution of what had been resolv'd upon in the General Assembly to deliberate about publick Affairs that offer'd themselves and to determine as Judges the most important matters of private Persons Under the declination of the 2d Race the Governours of Cities and Provinces having made themselves Hereditary Lords of the places of their respective Governments under the Title of Counties and Dutchies cut themselves large Portions out of the Soveraign's Lands by which means the Court of France was no more frequented by the Lords except only when they were obliged to do Hommage and take the Oath of Fidelity or when an Enemy invaded France for then they presented themselves before the King to advise about the present necessity This Disorder continued until the Reign of Philip Augustus who having conquer'd Normandy and the Counties of Tourain Anjou Maine from John without Land King of England and the Country of Vermandois from the Earl of Flanders restored in some manner the Royal Authority and forced the Barons to frequent his Court and to be present at the Assemblies he called for the Affairs and Necessities of State. Nevertheless those Assemblies consisted only of the Prelats and Barons and this till the Reign of King John some Authors say of St. Lewis who being taken at the Battle of Poictiers and carried to England they were forc'd to raise a great Sum of Money for his Ransom and to this End they appli'd themselves to the Merchants and other Inhabitants of Cities who were then the richest Men of the Kingdom who agreed to pay the King's Ransom upon condition that they might be received into the Charges and Offices as well of Peace as of War and be allowed to have a Place and deliberative Voice in the States-General which was accordingly granted to them The Power and Prerogative of the States-General was such that the Kings of France could not make any new Levies of Mony without them Which continued so till the Reign of Charles VII as is acknowledged by Philip de Commines Lib. 6 c. 7. Neither could they make any new Ordinances nor repeal or suppress the old without the consent of the said States as is owned by Davila lib. 2 de li Guerri Civili Under the First and second Race of the French Kings the Ordinances were likewise made in the Assembly of the Prelats and Barons which constituted the Soveraign Court of France 't was there the Treaties of Peace were made between the Kings of France and Foreign Princes and Nations the Portions of the Children of France were there regulated there they treated of their Marriages and generally of all that concern'd the Affairs of State of the King's Houshold and the Children of France The Ordinances that were made in the said Assemblies in the Name of the Kings of France were conceived in these Terms Nos de consilio consensu Procerum nostrorum statuimus c. We with the Advice and Consent of our Lords do ordain And from hence is derived the Custome observed at this Day of verifying the Royal Edicts in the Parliament of Paris which in some sort represents the Assembly of the Prelats and Barons who composed as we have said the Soveraign Court of France In the Treasury of the French Kings at Chartres are found several Treaties between King Philip Augustus and Richard and John without Land Kings of England at the bottom of which are the Seals of the Prelats and Barons by whose Consent and Approbation the said Treaties had been made And Pope Innocent VI having sent to entreat St. Lewis that he would be pleas'd to permit him to retire into France to secure himself from the attempts of Frederick II. the said King answered the Popes Nuncio that he would communicate the Matter to his Parliament without whose Consent the Kings of France could do nothing of Importance This is related by Matthew Paris in the Life of Henry the III. King of England ad Annum 1244. We find also the manner how the States determined all Affairs respecting the Crown and Succession as for Example the Process which was between Philip de Valois and King Edward In this Assembly of the States saith the Chancellor de l' Hospital was Tried and Debated the most Noble Cause that ever was viz. To whom the Crown of France did belong after the Death of Charles the Fair to Philip of Valois his Cousin or to Edward King of England King Philip not presiding in that Assembly because he was not yet King and besides was a Party It appears clearly from the Power of the States General That the Power of the King of France is bounded by Law indeed this is a Truth whereof we cannot make the least doubt forasmuch as we find it acknowledged by Lewis XI the most unbridled Monarch that ever was See what he writes in the Rosary of War composed by him a little before his Death for the use of Charles VIII his Son. When Kings or Princes saith he have no respect to the Law they take from the People what they ought to leave them possest of and do not give them what they ought to have and in so doing they make their People Slaves and thereby lose the name of a King. For no body can be called a King but he that rules and has Dominion over Free-men This thing was so notorious even to Strangers themselves that Machiavel maintained that the Stability of the Monarchy of France was owing to this because the Kings there were obliged to a great number of Laws which proved the Security and Safe-guard of all their Subjects Lib. 1 di Discorsi c. 16. Messire Claudius de Seissel in his Treatise of the French Monarchy part 2. chap. 12. dedicated to Francis I. maintains upon this account That the Monarchy of France does partake of Aristocrasy which makes it both more perfect and durable Yea he asserts that it was also in part Democratical and expresly maintains that an absolute Monarchy is no other than true Tyranny when it is made use of
but more especially to Princes because the Sovereign Command never befel any one without the Divine Providence These Essenians maintained against the Sect of the Pharisees that they might lawfully submit themselves to a Heathen Conqueror without always fostering a Spirit of Rebellion against him and without disputing or questioning his Authority under pretext that the Jewish Government had been established immediately by God. But doth this Text of St. Paul in the least prove that every Pagan Prince was immediately set upon the Throne by God The Passage quoted from the Sixth Chapter of the Wisdom of Solomon is nothing at all to their purpose because the Author of that Book addresses himself in all appearance to the Kings of Judea who as all agree deriv'd their Accession to the Throne immediately from God so that it might well be said to them Power is given you of the Lord and Sovereignty from the Highest True it is That Jesus Christ expresseth himself in words much to the same purpose John 19. speaking to Pilate the Governor of Judea Thou couldest have no power at all against me except it were given thee from above But it is visible that he speaks this only with respect to the Order of the Divine Providence which had suffered the Throne of Judea to be overthrown by the Romans so that instead of her Natural Magistrates she was now subject to Strangers The Empire of Nimrod was founded in the same manner with that of the Romans and yet I scarce think any Man will pretend that God committed the Sovereign Power to him in the same manner that he did vouchsafe it to David True it is That the Scripture gives Cyrus the Kâ—ng of Persia the Title of the Lord 's Anointed which seems to import as if God had in an immediate manner raised him to the Throne like David But this is no due consequence for the Notion of the Lord 's Anointed signifies only his particular Destination of him to be the Instrument of the Jews deliverance from their Captivity I freely own That a Divine Providence may ordinarily be observed in the Elevation of Kings and that the same may be taken notice of as intervening in a more especial manner in the raising of those Kings whom God designs to make use of for the good of his Church which is linked with the Civil Society But I do not conceive that from thence it will follow either that the acts of ordinary Providence manifesting themselves upon occasions are sufficient to make an immediate divine Institution of Princes no more than other Events wherein Providence intervenes can properly be called immediate Effects of the Deity nor that the extraordinary Acts of Divine Providence as were those that respected Cyrus ought to be alledged as an Argument in common Events The words we find in the Eighth Chapter of the Proverbs are also commonly quoted to this purpose By me Kings Reign and Princes decree Justice but it is manifest that this is said with regard to Wisdom of which he was speaking before and which displays it self in the management of Humane Affairs without intimating any immediate Act of the Deity Moreover we are carefully to observe That though the Scriptures attribute to God the Institution of Magistrates in which respect also they call them a Divine Institution and ascribe to God the Exaltation of Princes in particular yet they never express themselves but in a very general manner as when they set forth to us the part God bears in all Events Thus God is said to overturn Thrones in like manner as he is said to erect them he is said to settle Tyrants as well as the most lawful Kings All which Expressions relating to his Providence which does or permits things by the intervening ministry of Second Causes can have no influence upon the Judgments we are to make concerning the Authority of Princes with regard to their Divine institution M. de Marca makes use of some Passages out of the Fathers to confirm his Opinion But First they infer nothing but what we are ready to grant viz. That God having ordained Magistracy those who are invested therewith ought to be considered as the Ministers of God which is sufficient for a foundation of their Authority without any necessity of supposing that God immediately endows every King with the Royal Power wherewith he is invested This is the Opinion of Theophilus Bishop of Antioch ad Autol Lib. 1. where he saith That the Prince has received in some sort from God the administration of the Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which expression doth visibly respect a mediate institution but doth not at all express an immediate institution as M. de Marca conceives Secondly They distinctly lay down That Magistracy is a humane institution as St. Peter qualifies it because all Magistrates and Kings themselves are ordained and established by Men as Oecumenius explains that place 1 Pet. 1.2 St. Irenaeus says no more lib. 5. contr Haer. C. 24. He refutes the Opinion of the Gnosticks who would have Magistrates to be an institution of the Devil and he makes it appear that both the Old and New Testament confirm That Magistrates are one of the means which Providence has judged necessary to put a stop to the Current of Wickedness and Crimes which had deluged the Heathen World whom the fear of God alone was not able to keep within the bounds of Justice To which purpose he saith Cujus jussu homines nascuntur hujus jussu Reges instituuntur by whose command Men are born by his command Kings are ordained Neither doth Epiphanius advance any thing more than this Haeresi 40. contra Archontic Tertullian expresseth himself to the same purpose in his Apologet. cap. 30. Inde est Imperator unde homo antequam Imperator inde potestas illi unde Spiritus Thence is the Emperor from whence Man is before he was Emperor thence he has his power from whence he has his Breath St. Chrysostom exactly follows their footsteps as well as St. Isidore Bishop of Pelusium Lib. 2. Epist 206. Indeed how could St. Chrysostom teach any other Doctrine who in his 23. Hom. upon the Epistle to the Rom. plainly asserts That Jesus Christ never gave his Laws with design to overturn the received forms of Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and expresly denies that those words in the 13. Chap. of the Epistle to the Romans for there is no power but what is of God must be understood concerning Government in general and not of those who are invested therewith Quid dicis Omnis ergo Princeps à Deo constitutus est Istud inquit non dico Neque enim de quovis Principe sermo mihi nunc est sed de ipsa â—re Quod enim principatus sunt quod isti quidem imperant isti vero subjecti sunt quodque non simpliciter ac temere cuncta feruntur .... divina sapientiae opus esse dicit Propterea non dicit Non enim
Princeps est nisi à Deo sed de re ipsa disserit dicens Non enim Potestas est nisi à Deo. What do you say then that every Prince is constituted by God No I don't say so for I am not speaking here of every particular Prince but of the thing it self For that there are Principalities that some rule and others obey and that all things are not carried rashly and without order this the Apostle declares to be an effect of the Divine Wisdom Wherefore also he does not say for there is no Prince but who is of God but for there is no power but what is of God. St. Augustin de Civitate Dei Lib. 5. cap. 21. holds forth no other Doctrine Qui Augusto Imperium dedit ipse Neroni qui Vespasianis vel Patri vel filio Suavissimis Imperatoribus ipse Domitiano crudelissimo He that bestow'd the Imperial Dignity upon Augustus gave it also to Neâ—o and the same who advanced the Vespasians Father and Son most beneficent Emperours exalted also the most cruel Domitian All which expressions do evidently refer to nothing else but the order established by the Divine Providence without in the least deciding the question in Controversie Neither do I find that the Bishops of France entertain'd any different Opinions concerning this matter when they represented to Lewis the good the greatness and importance of his Dignity and the necessity that lay upon him to afford Justice to all his Subjects because he owed his Soveraign Dignity to God himself and his Predecessors Quapropter say they quisquis caeteris mortalibus temporaliter imperat non ab hominibus sed à Deo commissum sibi regnum credat Multi namque munere Divino multi etiam Dei permissa regnant Wherefore whosoever temporally rules over other Men ought to think his Kingdom committed to him not by Men but by God. For many do reign by a Divine Grant and many only by Divine Permission Which words were used by them only as a motive to oblige that Emperour not to look upon the Royal Dignity as an Inheritance or Possession but as a charge or office instituted by God of the administration whereof he was to give an account to God. Concil Paris Lib. 2. cap. 5. Anno 829. The Fathers also of the Council of Trosly simply declare That the Royal Dignity was instituted by God when the Apostle said Be subject to the King as chief which would be a strange Conclusion if he had not had an eye to the institution of the Office and not to the immediate institution or consecration of the Person I know it has been customary for Emperors and Kings to look upon themselves as chosen of God Crowned of God c. which hath given occasion to some Painters and Gravers to represent them as receiving their Crowns from Heaven I am not ignorant also that the Emperour Lewis of Bavaria maintains That the Imperial Power and Authority is immediately from God and not from the Pope but his first expression respects only the order of Providence and the second the Pope's pretensions who maintained That Emperors held the Empire as a Fief whereof the Pope was the Lord Paramount After all though these Gentlemen who attribute to every Soveraign Magistrate and to every King the power which they enjoy as immediately conferred upon them by God think by this means to lay a more sure foundation for the veneration which the People owe to the Royal Power it is very evident that they advance little by this their Opinion if it be true that this power though we should suppose it granted immediately by God must be limited by certain Laws and that the People have right to impose them upon them when they elevate them to that Dignity CHAP. V. Whether the Power of Soveraigns be absolute and unlimited IT is commonly conceived that there are two sorts of Government the one Absolute and the other Limited Absolute Government is supposed to be that wherein the Governor doth so absolutely enjoy all the Authority necessary for the subsistence of the Society that none share with him in it so that he exerciseth it according to his good pleasure In such a Government as this the Prince can make Laws and again revoke or dispence with them He can settle inferiour Magistrates and discharge or remove them again at pleasure and repeal their Acts or Decrees He can declare War to the Enemies of the State and make Peace with them He can save the Lives of Criminals or take them away all which he may do without any one having any right to contradict or oppose him Neither is there any thing contrary to the nature of Government in this Absolute Power for since it is necessary to make Laws for the good of the State according as there is need to nominate Magistrates and to remove them to examine the Judgments of inferiour Courts and repeal them if they be unjust it is a thing indifferent to the State by whom these things are done so they be but done in such a manner as to answer the natural end of Government which is the good of the Society But we must take heed of conceiving any such Absolute Power inherent in any Sovereigns whatsoever whereby they may lawfully frustrate and overthrow the ends of Government For how absolute so ever a Pâ—ince may be conceived to be yet can he not be so in all respects for first he is subject to the Divine Laws as well as the meanest of his Subjects Secondly He is subject to the Laws that are founded on the Right of Nations Thirdly He is obnoxious to the fundamental Laws of the State which he governs Fourthly he lies under an obligation of following the Laws of the Government committed to his charge so far as to endeavour to obtain the ends thereof by procuring the happiness of the Society But if any Man conceives a Government absolute in all respects and whereof the Sovereigns are not bouâ—ht up by the four Tyes abovesaid he imagines an illegal and monstrous Government neither can there be any such but the Tyrannical which is no Government at all For seeing that Tyranny is diametrically opposite to the natural end and aim of Government I do not see how it can be ranked with lawful Governments there being as much absurdity in supposing it such as to suppose an unjust and impossible Law to be a good and true Law because published by one who has the Authority to do it I cannot find that ever there was any Empire or Authority Absolute in all respects as is pretended Those very Soveraigns which are conceived to be resolute to this degree as those of the Medes and Persians had notwithstanding some irrevocable and inviolable Laws which were fundamental to that State as appears from the Book of Daniel Aristotle seems to speak of these sâ—â—â—s of Government Polit. Lib. 3. 210. where he distiâ—â—â—ishes them from a Tyrannical Government forasmuch as
own preservation and that of the Society whereof we are Members we may easily judge That in case the Scripture does assert it we must suppose it has done it with all possible clearness and distinction but we do not find any such thing I find but one place in the Old Testament which can be wrested to this purpose with any probability 't is the Description of the behaviour of a King set down 1 Sam. 8. 10. where the vulgar Translation interprets Mispath by the Word Right hoc est Jus Regis But I am astonished how any could be mistaken in this case For First It appears that God in that place gives us the Description of a Tyrant and not of a King for indeed we find nothing like to it in the Description he gives us of a King by Moses Deut. 17. Which appears to be so because Samuel held forth this Looking-glass to them to make them quit their demand of having a King set over them as the rest of the Nations about them Secondly It is apparent that what he saith of their crying to the Lord when oppressed by their King would have been most ridiculous supposing the King to have these Rights from God and by his Concession When Moses tells the Jews That they should cry unto the Lord when they should be oppressed by their Neighbours waging War against them because of their forsaking of the Lord Does he not plainly suppose That they would do this to obtain his Protection against the injustice of those Tyrants And can any one be supposed Fool enough to imagine that according to God's Intention it was unlawful for the Israelites to defend themselves against the Moabites Philistims and other Nations that oppressed them Thirdly It is evident that this supposed God could not in Justice punish a Tyrant or if he did it would be for making use of a Right himself had conferred upon him This reason made R. Juda to oppose R. Jose as Kimki observes upon this Text. The same is also acknowledged by the wisest of Divines Marchat in horte Pastorum Lib. 3. Tr. 4. Lect. 13. explains himself thus Hoc est jus Regis idem est ac si diceret Haec est consuetudo Regum This is the Right of a King is the same as if he had said This is the Custom of a King Jus Regum Jus non legitimum sed usurpatum Estius Samuel speaks there not of a lawful Right of Kings but of an usurped and arrogated Right and the same is the Opinion of Cornel. à Lapid and the Jansenists of Port Royal. After all that has been said it is natural to observe That forasmuch as all the several kinds of Government are no less founded on Divine Authority than the Kingly yet according to this Hypothesis none of them would be invested with this Right so fatal to Society but Kings only which certainly is the worst Argument they could have lighted on to recommend a Government which God by his own institution has constituted a true Tyranny The second place is that of St. Paul Rom. 13. where the Apostle forbids resisting of the Powers for fear we should resist the Ordinance of God. But we are to take notice that the Apostle in that place does not in the least touch this Question Whether it be lawful to resist the Poâ—ers when they endeavour to overthrow the Government First He considers the Powers in the lawful use of their Authority punishing the Evil and protecting the Good. Now it is ridiculous to suppose that the same Priviledge that appertains to him who makes a lawful use of his Authority is every whit as applicable to him who has lost his Title by the abuse of his Power Rex saith St. Isidore à recte agendo dicitur si enim piè justè misericorditer agit merito Rex appellatur si his caruerit non Rex sed Tyrannus est A King has his name from acting right and well for if he acts piously justly and mercifully he is deservedly called a King but if he want these qualifications he is no King but a Tyrant Addit 2. ad capit Carol Magn. cap. 21. Secondly This would suppose the Powers that act under Sovereigns to be every whit as irresistible as the Sovereigns themselves which is an extravagant position in the sense of all Modern Divines Besides we are to observe that Sovereigns with their Power are only the Organical chiefs of the Society the true head or chief is the Principality with its Members which are the integral parts of it This is the same that was acknowledged by Charles Moulin the Prince of French Lawyers and the great defender of the Kings of France and their Authority Upon this account it is that the People have right to prosecute the misdemeanours of the King's Attornies and Ministers and to punish them which would be strangely ridiculous if the State were not perswaded that all the Power they have is a power received from the State thô the King have the Power to elect and raise them to those Employments It is apparent therefore That these words of St. Paul only have an eye to the repugnance the Christian Jews had to submit themselves to the Dominion of Heathens This was the Opinion of the Pharisees who tempted Jesus Christ upon occasion of the Tribute which the Emperor levied in Judea Josephus shews that the Essenians opposed them in this point and St. Paul here takes the Part of the Essenians And indeed we do'nt find that the Christians did any way oppose the Decree of the Senate when they declared Nero The Enemy of all Mankind We find also that the Christians of Tertullian's time and those that followed after did very well agree with the Sentiment of Heathen Authors about the Justice of the People's or Senate's resistance against such Tyrants as is apparent from Lactantius de Montibus Persecutorum and the like may be seen in Eusebius Orosius and in St. Augustine de Civit. Dei. But I can say more than this viz. That the Scripture is so far from teaching the Doctrine of Non-resistance to an unjust Power and that violates the Laws that she represents to us contrary Examples with commendation and sufficiently intimates that we rather sin in not resisting For don't we see David taking up Arms to defend himself against Saul Don't we see him offering Achish to fight for him against Saul notwithstanding he was his Father-in Law Don't we see the Ten Tribes opposing themselves against Rehoboam upon his declaring for Tyranny and Arbitrary Government Let us take the pains heedfully to consider the carriage of the High-Priest and his Collegues when King Vzziah presumed to exercise the Functions of the Priesthood in offering Incense and it will plainly appear they did not think it unlawful to resist Sovereign Authority when it goes beyond its bounds 2 Chron. 26.17 Azariah the High-Priest follows him with fourscore Priests all valiant men drives him out of the Temple
because he was his First-born 2 Chron. 21.3 All which evidently proves that both Kings and People supposed themselves to have right from the Divine Graunt or Concession for the Establishment of Kings to regulate the Rights of Royalty and the Questions depending thereon according to the Maxims of Political Prudence and the Rights of Nations Neither do we find that Samuel grounds his Discourse on any other Principles or that he supposes that Kings ought to be invested with a boundless Power as some imprudently do imagine See in what manner he expresseth himself to diswade the Jews from their importunate Demand to have him settle a King over them 1 Sam. 8.1 2 3 4 5 to the end And it came to pass that when Samuel was old that he made his Sons Judges over Israel But his Sons walked not in his ways but turned aside after Lucre and took Bribes and preverted Judgment Then all the Elders of Israel assembled themselves together and came to Samuel unto Ramah and said unto him Behold thou art old and thy Sons walk not in thy ways now therefore make us a King to judg us like other Nations But the thing displeased Samuel when they said Give us a King to judg us And Samuel prayed unto the Lord and the Lord said unto Samuel Hearken unto the Voice of the People in all that they say unto thee for they have not rejected thee but they have rejected me that I should not reign over them According to all the Works which they have done since the day that I brought them up out of Egypt even unto this day wherewith they have forsaken me and served other Gods so do they also unto thee Now therefore hearken unto their Voice howbeit protest solemnly unto them and shew to them the manner of the King that shall reign over them And Samuel told all the Words of the Lord unto the People that asked of him a King and he said This will be the manner of the King that shall reign over you he will take your Sons and appoint them for himself for his Chariots and to be his Horsemen and some shall run before his Chariot and he will appoint him Captains over thousands and Captains over Fifities and will set them to ear his Ground and to reap his Harvest and to make his Instruments of War and Instruments of his Chariots and he will take your Daughters to be his Confectioners and to be his Cooks and Bakers And he will take your Fields and your Vine-yards and your Olive-Yards even the best of them and give them to his Servants And he will take the tenth of your Seed and of your Vineyards to bestow it upon his Officers and his Servants And he will take your Men-Servants and your Maid-Servants and the goodliest of your young Men and your Asses and put them to his Work. He will take the tenth of your Sheep and ye shall be his Servants And ye shall cry out in that Day because of your King which ye shall have chosen you and the Lord will not hear you in that Day Nevertheless the People refused to obey the Voice of Samuel and they said Nay but we will have a King over us that we also may be like all the Nations and that our King may judg us and go out before us and fight our Battels And Samuel heard all the Words of the People and he rehearsed them in the Ears of the Lord. And the Lord said unto Samuel Hearken unto their Voice and make them a King and Samuel said unto the Men of Israel Go ye every Man unto his City 'T is obvious to observe from this account 1st That the Injustice and Miscarriage of Samuel's Sons was the cause why the Jews demanded a King to be set over them 2ly That their Demand is couch'd in those terms that make it evident they desired to be governed after the manner of their Neighbour-Nations 3ly That this their Demand was displeasing to Samuel 4ly That God look'd upon it as a Contempt of himself and a casting off of his Authority for the Reasons before alledged 5ly That God strictly enjoyns Samuel to protest and declare unto them how they must expect to be treated by the Kings that should reign over them 6ly That Samuel in this his Declaration delineates to them the compleat Pourtraiture of a Tyrant rather than of a King to affright the People from the Demand they had made and that as a Prophet he foretells the things should happen to them under the Government of their Kings 7ly That he represents to them the Miserie 's annex'd to Royalty as their Bondage in Egypt and the several other Servitudes which had forced them to cry unto God but denounces to them that God to punish them for this their Rebellion against him and their Contempt of his Administration would not hear them 8ly That the People dazled with the Lustre of Royalty and the Advantages they thence promised to themselves in time of War notwithstanding this Remonstrance persevered in their Demand 9ly That finally therefore God commands Samuel to give way to their Request and to set a King over them according to their Desire This in short is the sense which Josephus gives of this History Antiq. lib. c. 4. From whence it is evident that the Synagogue never believed that God had granted to the Kings of Judea any of those Tyrannical Rights which some would appropriate to Kings from these Words Hoc est jus Regis Josephus makes out that what is said 1 Sam. 10.25 that Samuel wrote the Right or rather the Manners and Behaviour of a King in a Book and laid it up before the Lord was done by him for this end that the People for time to come might know that he as a Prophet had in this his description of the Manners of a King Ibid. cap. 5. foretold them all the Calamities and Miseries that would overtake them under a Monarchy chang'd into Tyranny that thereby they might be induc'd to Acknowledge their unthankfulness towards God and their Folly in being so earnest for a King as often as they should cast their Eyes on this his Prophecy I know that some to assert the unbounded Power of Monarchs have endeavoured to prove from these Words of the vulgar Latin Translation hoc est jus Regis that the Monarchical Government amongst the Jews was of this Nature and that therefore Samuel does not represent the Kings here as subject to any Laws or Punishments which it seems he consequently ought to have done after that he had declared their Conduct and Behaviour as absolutely contrary to the Rights of the Society But as I have already before observed never was so weak a Foundation made use of whereon to raise such vast Pretensions as may be easily made out so as to convince those who make use of an improper Translation both to delude themselves and to abuse others about a Question which is of so great Importance
St. Austin speaks lib. 3. confess c. 8. yet it is no less notorious that this Compact doth not respect Tyrants Accordingly we see that the wisest of the Emperors did so little believe that it was lawful for them to govern arbitrarily that Trajan in favour of whom the Royal Law was renewed at the time of his exaltation to the Empire addresseth himself in these words to the Prefect of the Praetorium Accipe hunc gladium pro me si rectè agam sin aliter in me magis quod moderatorem omnium errare minus fas sit Take this Sword and use it for me in case I rule well but if not rather against me because it less becomes him that rules over all than it does others to commit an Error Dion Aurel. Victor 2ly That the Emperors who were most renowned for Vertue did never affect to publish any Laws of their own Heads till after they had got them approved by the Senate This is that which Lampridius records concerning Alexander Severus and we see the same practis'd by Theodosius l. Humanum C. de F. But whatever this Royal Law may have been sure it is 1st That the same was abolished together with the Roman Empire which ended in the West with Augustulus 2ly That it ceased in the East with the Emperors of Constantinople 3ly It is certain that they who ruin'd the Empire in the West did never adopt this Royal Law to govern their Subjects by that Arbitrary Rule 4ly It is also certain that the Princes who since the Year 800 have succeeded Charles the Great and who have taken to themselves the Names of Roman Emperors did not govern according to this Law nor ever pretended that that Law ought to be observed in favour of them under pretence of their bearing the Title of Roman Emperors This is that which I believe it will be of use solidly to evince though I intend to do it very compendiously that I may not tire the Reader CHAP. XI That the States of the West and of the North never knew this Royal Law. THough the People of the West allow'd their Princes the Title of King yet it may be averr'd that the most part of those Kingdoms which had their Rise from the Ruins of the Roman Empire never owned this Royal Law. The Power of their Kings was originally limited as Caesar witnesseth in his Commentaries concerning the German Kings which were to speak properly only Commanders or Generals I make particular mention of the Germans because for the most part they were the Founders of the Northern and Western Kingdoms Germany having been as it were the Nursery from whence have proceeded most of those Nations who at this Day have any Name in Europe See what Tacitus asserts concerning the German Kings Nec Germanorum Regibus infinita aut libera potestas est de minoribus rebus Principes consultant de majoribus omnes Rex aut Princeps auditur Authoritate suadendi magis quam jubendi potestate si displicuit sententia fremitu aspernantur Neither is the Power of the German Kings altogether free or unbounded Matters of lesser Moment are left to the Advice of the Princes but those of greater Concern are debated by the whole Society they hear the King as one having Authority to persuade rather than any Power to command them and if his Sentiments displease them they are rejected with boldness Caesar gives us much the same portraicture of the Kings of the Gauls And that their Successors who tore the Roman Empire to pieces have retained this Form of a Limited Monarchy is Matter of incontestable Evidence to every one that will take a little pains to peruse the Histories of those Nations to run over their Laws and take notice how they have carried it towards their Kings when-ever they fell to Tyranny They who would be informed how far the Power of the Gothick Kings in Spain was limited need only to cast their Eyes upon the account which Gregory of Tours gives us Lib. 2. cap. 31. concerning this Matter and upon their History in the Chronicle of St. Isidorus We have the fundamental Laws of their Kingdom set down by Molina de Hispan Primogenit Cap. 2. N. 13. But this appears yet more clearly from the Body of their Laws which is still extant and published by Lindenberg 1st It appears that their Laws were enacted ex universali consensu Civium Populi by the universal Consent of the Citizens and People Lib. 1. Tit. 7. 2ly It appears that the Kings were no less obnoxious to the Laws than the Subjects themselves Lib. 2. Tit. 2. 3ly It appears not that the Romans Laws and much less their Royal Law had any Authority amongst them Lib. 2. Tit. 9. 4ly It appears that their Kings had not so much as the Power to pardon Crimes without the consent of the Bishops and chief Lords Lib. 6. Tit. 7. Lastly It is evident from their History that their Kings were liable to be deposed by the States when ever they went about to transgress their Bounds and tyrannize over their Subjects I confess that the Council of Toledo IV. in their last Canon thus express themselves Quicunque amodo ex nobis vel totius Hispaniae populis qualibet conjuratione vel studio sacramentum fidei suae quod pro Patriae Gentisve Gothorum statu vel conservatione Regiae salutis vel incolumitate Regiae Potestatis pollicitus est temeraverit aut potestate Regni exuerit aut praesumptione Tyrannicâ Regni fastigium occupaverit Anathema in conspectu Dei Patris Angelorum atque ab Ecclesia Catholica quam perjurio profanaverit efficiatur extraneus ab omni Coetu Christianorum alienus cum omnibus impietatis suae fociis quia oportet ut una poena teneat obnoxios quos similis error invenerit implicatos Whosoever from this time forwards either of us or of any of the People of Spain shall by any Conspiracy or Attempt break the Oath of his Fidelity he has taken for the welfare of his Country and the Gothick Nation the conservation of the King's Life and maintenance of the Royal Power or who shall deprive him of his Kingdom or by a Tyrannical Presumption usurp the Throne let him be Anathema in the sight of God the Father and the Angels and be cast out from the Catholick Church which he has profaned by his Perjury and be turn'd out of all Christian Assemblies with all the Complices and Associates of his Wickedness because it is but fit that all they should be liable to the same Punishment who are involved in the same Crime The same is repeated in the Council of Toledo V. cap. 1. and in the Council of Toledo X. Cap. 2. But we may affirm with truth that those who have worn this Canon threadbare by their frequent citing of it did either not understand it or changed the sense of it to impose upon and delude others Wherefore let those that read these words well observe
1st The Order which the Fathers of the Council of Toledo IV. observe in speaking of Oaths Sacramentum fidei suae quod pro Patriae Gentisque Gothorum statu vel conservatione Regiae salutis vel incolumitate Regiae potestatis pollicitus est I own it is to be considered that the vel here signifies as much as this being the common stile of those Times I say it is remarkable that the good and happy State of the Nation was the first Object of their Oaths the second Object was join'd with it viz. the Conservation of the King yet with the understood Proviso if he did not oppose the first but was subservient to it For indeed I cannot believe that God made the Goths of another nature than the rest of Mankind or so much Fools enough as to prefer the Means before the End and to believe that they ought to engage themselves to seek the Means any further than they are of use to obtain the End. Ad Tutelam Legis Subditorum Rex creatus est The King saith Chancellor Fortescue is made for a Safeguard to the Subjects Laws The Preservation of the Subject is the first Obligation and the next that of the Prince 2ly We must observe that the words of the Canon regard those who by a Conspiracy undertake either to kill the King or to deprive him of his Kingdom or to usurp the Throne by a Tyrannical Presumption But all this while they suppose a lawful King that is to say a King acknowledged as such by the State attack'd by some furious Conspirators with design to dethrone him against all Right and Justice for to place another in his stead The Council does not in the least suppose that it is unlawful for the State to deprive a Tyrant of the Authority he abuseth If we suppose the contrary we must take St. Isidore who was President of that Council for a Fool fit to be shut up in Bedlam for he expresly makes this Observation that Rex à rectè agendo vocatur si enim piè justè misericorditer agit merito Rex appellatur si his caruerit non Rex sed Tyrannus est Addit 2 ad Cap. Caroli Magni c. 21. 3ly I maintain that of all the Passages of Antiquity which are alledged by the Defenders of Passive Obedience there is not any to be found which they ought to have been more careful to suppress in silence than that of this Council And we must judg them possess'd with a brutal Stupidity or guilty of strange Malice in employing such a Passage as this to support their Prejudices in favour of those Princes who overturn the Government For who were these Fathers of the 4th Council of Toledo They were the very Men who three Years before this Council had cast off Suinthila after he had reign'd ten Years over them who had raised Sisinandus in his room against whom they justly feared that some furious Fellows might hatch a Conspiracy They were the Men who pronounced three Anathema's against Suinthila for the Crimes he had been found guilty of whilst he was possest of the Royal Power They were the Men who declar'd That if a King does not well acquit himself of the high Charge he is entrusted with he ought to be excommunicated and consequently depriv'd of all Power in his Kingdom All which is contain'd in Chap. 75. of the same Council where they observe that the Election of Kings took place after the Death of their Fathers Which makes it apparent that there is no ground at all to suspect the Goths or the Bishops of Spain and of Gallia Narbonensis who assisted at that Council to have espous'd the Maximes that some would fix upon them The Lombards observed the same Rules in their Government as we may see in their History written by Paulus Diaconus And as for what the other Kingdoms that were formed of the Ruines of the Empire of Charles the Great we find that their Power was always limited in the same manner none of those Princes having ever thought of reviving the Royal Law of the Ancient Roman Emperors in favour of themselves And because this Affair bears so great a resemblance with the present Revolution I desire the Reader not to take it ill that I have copied the 75th Canon of the 4th Council of Toledo at the end of these Remarks and that he may make his Reflections thereupon for he will find that those who make use of it have no reason to complain That they who have made choice of the Prince of Orange upon the desertion of James II after so many unjust Proceedings and Enterprizes tending to the total overthrow of the State and Government have exactly followed this Example of the Kingdom of Spain and that the Clergy who have followed these Decisions of State have therein imitated the Conduct of this Council of Toledo and that those who oppose themselves against it are found in the same Case with those whom the Church of Spain and of Gallia Narbonensis did so solemnly excommunicate The Kings of Burgundy reigned with the same Limitations For which we may consult the Law of Gondebaud which is still extant and which was made Habito Consilio Comitum Procerum with the Advice of the Earls and Lords who signed the Law as well as King Gondebaud which makes it very evident that the Kings of this People had not the Legislative Power invested in them alone We find the same Clause in the second Addition to that Law. And indeed we need only to take notice of what Marius Aventicensis relates concerning King Sigismond in his Chronicle to enable us to judg that those People had other Laws besides that of the Will of their Princes For this Prince having caus'd his Son to be strangled without any Form of Justice his Subjects conceived so great an Indignation against him that he was forced to hide himself and to take upon him a Fryars Habit for a Mark of his Repentance which yet was not able to give them Satisfaction for as soon as he appeared they delivered him to Clodomer King of Orleans who carried him to France where soon after he lost his Life in a Tragical manner We find Instances of the sharing of the Soveraign Power between the Lords and the King in the Ancient Histories of Sweden as may be seen in Joan. Magnus Hist lib. 15 29. and in Crantzius lib. 5. We find also that by the Oaths taken at the Coronation of their Kings the Bishops Nobles Citizens and People oblige themselves in case the King commit any thing by himself or by another contrary to the Articles or Treaty he swears to at his Coronation to oppose themselves to his Enterprizes upon their Honour and upon their Oath Chytraeus lib. 2. They who do not know the Manner of the States of Sweden deposing of Sigismond and the Reasons they alledged for it to King James may peruse the Relation of it in Goldast We find
against Religion Justice and the Government That a Prince who passeth these Bounds must be held and esteemed for a wicked Tyrant cruel and intolerable who by this means pulls down the Hatred of God and his Subjects upon himself Du Haillan Historiographer of the Kings Henry III and Henry IV. follows the same notion of Claudius de Seissel in his third Book of the state of the Affairs of France dedicated to Henry III. maintaining that the Government of France is composed of Aristocrasy and Democrasy p. 168. And indeed who can judg otherwise when he attentively considers these six things which are a part of the publick Constitution of the Kingdom of France 1st That though the Crown for a long time since has followed the form of Succession yet the form of Election is still observed at the Coronation Hunc vultis hunc jubetis esse Regem This is he whom you will and require to be your King these Words are spoken to the People before the Coronation We find the Peoples Election is mentioned and the King called elect in the form of Coronation published by Hugo Menard a Benedictin 2ly The King is there engaged by his Oath to rule according to the Laws of the Kingdom as may be seen in the Ceremonial of France 3ly He can make no Laws but in the Parliaments or States General whereof we have an Instance in the States of Orleans in the Year 1560. and is the same with what D'avila has obin his 2d Book of the Civil Wars 4ly He can make neither Peace nor War but by the Advice of the States General This is acknowledg'd by Lewis XI as we find in Philip de Commines 2 Book ch 14. 5ly He can raise no Mony but by Concession from the States General We find this point thus decided by the States of 1338 with the consent of King Philip That no Taxes could be imposed or levied on the People of France without urgent and evident Necessity did require it and then only by the grant of the States Gila Fol. 157. Philip de Commines lib. 5. c. 18. saith with respect to this point Is there any King or Lord on the Earth who has Power besides his Demesne to impose so much as a Penny upon his Subjects without the Grant and Consent of those who are to pay it except it be by Tyranny and Violence 6ly The Kings of France are liable to be deposed by the States General in case they abuse the Authority they are entrusted with This last Article viz. of the Proceedings of the French against those of their Kings who abused their Authority does evidently demonstate That the Monarchy of France is altogether limited according to the Platform Caesar gives us of the Government of the ancient Germans or Francs who are descended from them There is a passage which is ordinarily abused to prove that unjust Kings and Tyrants cannot be deposed wherein Gregory of Tours thus expresseth himself to Chilperic Lib. 5. c. 19. If any one of us who are Lords transgresseth the Bounds of Justice you have the Power to punish him but if you your self do not keep within them who is it can correct you We indeed speak to you and you hearken to us if you please and if you will not who is it shall condemn you except he who has said that he is Righteousness it self I don't believe there was ever any Author that undertook to defend the Doctrine of Non-resistance and Passive Obedience who has not made use of this Proof but give me leave to say that they have quoted this passage with as much Judgment as they alledged the 75th Canon of the 4th Council of Toledo for 1st Observe that this is the Discourse of Gregory of Tours who was accused by Chilperic for opposing himself to the Justice that Prince demanded of a Council against Pretextat Bishop of Roven whom he accused of high Treason and forasmuch as the Bishops were perswaded of his Innocence whom they saw attackt by false Witnesses this Gregory had the Courage to maintain that it was their Duty to make their Remonstrances to the King concerning this matter The King took their Design of remonstrancing him for an opposition to the Justice he had demanded whereupon Gregory of Tours made the Discourse just now mentioned So that it plainly appears that this Discourse only respects the order of Bishops who under that Relation have no other way to redress themselves with regard to Kings but only by Remonstrances but does not at all speak of the Body of the State who are invested with other Rights in Reference to a King who undertakes to pervert Justice But to make it appear that Frenchmen at that time did not believe that Kings had the Priviledg that they could not be deposed by the States Though they abused their Authority we need only to consult the History of the deposing of Childeric Father of Clovis which is set down by Gregory of Tours Lib. 2. ch 11. and approved of by him We find that they had preserved this their Right by the Deposition of another Childeric in the 8th Century and whereupon it is obvious and natural to make these Reflections 1. That the Francs had the Power of choosing and deposing their Kings 2. That the Oath they swore to their Kings was conditional and supposed their acquitting themselves of the charge and trust reposed in them and which they were obliged by Oath to make good 3. That it is false that King Childeric was deposed by the Authority of Pope Zachary as the Papists have maintained forasmuch as that proceeding was an Act of the States General who made use of their Right on this occasion This is so true that Pope Zachary himself laid it down as a Maxim in his Letter to the Francs that this was a right inherent in the People Nam si Princeps Populo cujus beneficio Regnum possidet obnoxius est si Plebs Regem constituit destituere potest For if a King saith he be obnoxious to his People by whose graunt he possesseth his Kingdom if the People constitute a King they may also depose him If we come to the Race of Charles the Great we find Lewis the Good deposed by the States assembled at Thionville The whole Proceeding whereof may be seen in Baronius du Chesne Le Cointe where we may observe 1. That it was done with consent of the Bishops 2. We see there an Indictment on divers Articles which contains as many Crimes against the State. 3. When this Deposition was recalled afterwards they did annul the Acts of the former Assembly not as if they had acted without Power but because they had proceeded on false Accusations and insufficient Grounds We find also the same Proceeding with respect of Charles the Gross and Charles the Simple Indeed it was then so notorious that the Power of the Kings of France though they took to themselves the Title of Emperors was limited the Estates being
invested with part of the Soveraign Authority that Lewis the Good solemnly avows the same Lib. 2. Capitul c. 2 c. 12. We find also that the Clergy of France was so far convinced that the States of the Kingdom had right to dispose of the Crown for the good of the State that when Charles the Bald was chosen by the Kingdom of Lorrain in Prejudice of the Children of the King his Brother and that Pope Adrian II. wrote to them thereupon by Hincmar Archbishop of Rheims threatning to excommunicate them they sent back this Answer to him by the said Hincmar Petite Dominum Apostolicum ut quia Rex Episcopus simul esse non potest sui Antecessores Ecclesiasticum ordinem quod suum est non Rempublicam quod Regum est disposuerunt non praecipiat nobis habere Regem qui nos in sic longinquis partibus adjuvare non posset contra subitaneos frequentes Paganorum impetus nos Francos non jubeat servire cui nolumus servire quia istud jugum sui Antecessores nostris Antecessoribus non imposuerunt nos illud portare non possumus qui scriptum esse in sanctis libris audimus ut pro libertate haereditate nostra usque ad mortem certare debeamus Desire the Apostolical Lord that forasmuch as he cannot be King and Bishop both together and that his Ancestors have concerned themselves with the Ecclesiastical Order which is their particular Province and not with the Common-wealth which is the Office of Kings not to command us to take such a one for our King who at so great a distance is not able to help us against the sudden and frequent Assaults of Heathens and to require us Francs to serve him whom we will not serve because his Ancestors never offer'd to impose this Yoke upon our Ancestors neither can we bear it who find it written in the Holy Books That we ought to fight for our Liberties and our Inheritance even unto Death We see also that he who was the Head of the Third Race viz. Hugh Capet was chosen King of France notwithstanding the apparent Rights of Charles of Lorrain who was the next Heir of Lewis V. by reason that the said Charles seemed too much linked to the Interests of the Germans who at that time were Enemies to France Guil. de Nangis ad An. 987. and others in du Chesne Who does not know the History of Henry III. who having been deposed in Poland for deserting that Kingdom was afterwards deposed in France by advice of the Sorbonn and of the greatest part of the States We may easily judg from these two Characters that Frenchmen never were infected with the Doctrine of Non-resistance The one is because they look'd upon this Doctrine as an Error See what Gerson the famous Chancellor of the University of Paris saith of it Error est dicere terrenum Principem in nullo suis subditis dominio durante obligari quia secundum jus Divinum Naturalem aequitatem verum Dominii finem quemadmodum subditi debent fidem subsidium servitium Domino sic etiam Dominus subditis suis fidem debet protectionem Et si eos manifeste cum obstinatione in injuria de facto prosequatur Princeps tunc Regula haec Naturalis vim vi repellere licet locum habet Opusc adversus Adulat consid 7. It is an Error saith he to assert that an Earthly Prince as long as his Dominion lasts does not stand engaged to his Subjects in any thing because according to the Divine Law Natural Equity and the true End of Dominion as the Subjects owe to their Prince Faithfulness Subsidy and Service so their Prince owes them Faithfulness and Protection and in case he doth publickly and with obstinacy imperiously oppress them then that natural Rule takes place That it is lawful to repel Force by Force The second is that they have always with horror rejected the Abuse that has been made of the Expression in 1 Sam. 8. Hoc est Jus Regis for to maintain the Tyranny of Princes If we will believe the Laws amongst you Princes saith Claudius d' Epense to King Henry II. you are Lord of our Body and Goods or to speak more like Christians we and ours are at your command Your Majesty ought to abhor that Right nothing less than Royal and nothing more than Tyrannical which God by the Mouth of Samuel did not allow to Kings but only threatned the People with telling them This shall be the Right of the King c. And then adds Go to now ye Dogs and Flatterers of the Court go to and alledg hence-forward this Right not Regal but Barbarous but Turkish but Scythian or if any worse Epithet can be invented I acknowledg that the Face of Affairs is very much changed since these hundred Years The States General have not been assembled almost these Seventy Years The Parliaments themselves which were established by the Kings and the States General to preserve the Rights of the States have been forced by the present King to verify without any Debate all manner of Edicts for the Imposition of Mony. But yet after all this Change is of so late standing that there is little appearance it should be look'd upon as a sufficient Prescription against the Interest of the State. Those French-men who have any knowledg of the Laws of the State and its Constitution set down the Epocha or Date of this Change of the Ancient Maxims of the Kingdom to wit the time which followed the Cessation of the Holding of the Estates General or the Minority of Lewis XIII and the Reign of Lewis XIV Let no Body imagine that the Ancient Idea of the Government of France is quite effaced out of the Spirit of the Nation I own that Lewis XIV by a Reign both very long and very violent has made the French lose a great deal of their Courage The Clergy of that Kingdom have above all endeavoured to support his Tyranny by Maxims advanc'd and contriv'd by them for the ruin of the Protestants with as little regard for their Country as they have shewed Conscience in their base Panegyricks pronounced to his Honour But however there are still in being a great number of honest Men who adhere to those Ancient Maxims I can at this present produce one of these from amongst the Clergy the Learned and illustrious M. Joly Canon of the Church of Paris who in the Year 1663 publish'd a Book with this title Important Maxims for the Education of a King. This Man alone may suffice to prove my assertion for he very vigorously confirms these Maxims by the Testimony of Kings themselves Chancellors Ministers of State Lawyers and Historians of France that they were always of Opinion in that Kingdom That the King holds his Authority from the People That the Power of Kings is Limited That the French Monarchy is a Monarchy allay'd and temper'd with
and that by the Example of their Brethren they may for Time to come employ all their Endeavours to make reparation for the Mischief and Scandal their Errors and Prejudices have in a great measure brought both upon the Church and State. FINIS THE APPENDIX CONTAINING I. Concilii Toletani IV. Canon LXXV II. Capitula super quibus facta est Magna Charta Regis Johannis ex MSS. Arch. Cantuar. Fol. 14. Quae etiam authenticè cum Sigillo extant in manibus Episc Salisburiensis III. Diploma sive Ordinationes Johannis Regis Angliae queis statuit quid Nobiles quid Plebes observare debeant ad pacem tranquillitatem Regni stabiliendam LONDON Printed for Ric. Chiswell 1689. APPENDIX The 75. Canon of the Fourth Council of Toledo AFter some Ordinances and Decrees made by us with respect to the Ecclesiastical Order and their particular Discipline the last Resolution taken by us Priests is to enact a final Pontifical Decree for the puissance of our Kings and the stability of the Gothick Nation in presence of the Great Judge of the World. For many Nations are so false and perfidious that they make slight of the Oath of Faithfulness they have sworn to their Kings and tho with their mouths they profess Allegiance to their Prince yet retain Perfidiousness in their hearts they swear indeed to their Kings but are as ready to break it again upon occasion not fearing that Roll of Judgment which brings a Curse and manifold Punishments upon those who swear falsly by the name of the Lord. What hope is there that such as these should either stand to their Capitulations in time of War or observe their Treaties of Peace with other Nations Or what Covenant or Contract will they not break Or what Promise made to their Enemies will they keep when they violate the Allegiance sworn to their own Kings For who is so mad as to endeavour to cut off his Head with his own Hand This is notorious that unmindful of their own Preservation they kill themselves turning their force and violence against themselves and their own Kings And whereas the Lord saith Touch not mine Anointed and David Who can stretch forth his hand against the Lords anointed and be guiltless these are neither afraid of Perjury or murthering their own Princes Sure it is that a Promise tho made to Enemies ought to be kept Now if we must keep Faith and Truth in War to our Enemies how much more are we to keep them on all other occasions For it is a piece of Sacriledge for Subjects to violate the Faith promised to their Kings beâ—â—use in so doing they not only sin against their Princes but agâ—inst God himself in whose name they make their promise Hence it comes that the wrath of God doth oft change and transfer many of the Earthly Kingdoms the breach of Faith and corruption of Manners making way for the destruction and change of the Government Wherefore also it ought to be our great care to avoid the mishaps attending these Nations lest we be involved with them deservedly in the same Punishment Thus we see that God did not spare the Angels that rebell'd against him who by their disobedience forfeited their Heavenly Mansions Wherefore 't is said also by the Prophet Isaiah My Sword is made drunk in Heaven how much more then ought we to stand in awe and fear the same disaster lest by our perfidiousness we be destroyed by the same Sword of an angry God. If therefore we desire to avoid the divine wrath and to have his severity turn'd into Favour and Clemency towards us let us above all things with fear keep and observe to God the Religious Worship and Service we owe him and to our Kings the Faith and Allegiance we have promis'd them Let there not be found amongst us as in some other Nations any wicked contrivance of Vnfaithfulness or cunning Perfidiousness or the horrid Crime of Perjury or mischievous Plottings of Conspiracies Let none amongst us egg'd on by Presumption invade the Throne or stir up Seditions amongst his Fellow-Citizens or compass and contrive the Death of Kings but when the King is departed this Life in Peace let the Lords of the Nation together with the Priests by joint Advice and Consent appoint and constitute a Successor of the Kingdom that so whilst this band of Unity and Concord is thus preserved amongst us none may endeavour to make a rent in the Kingdom by force or unjust ways But in case this Admonition prove not of sufficient force to correct the bad impressions which may be on the minds of any and to incline the hearts of all to promote the common good we think good to pronounce Sentence Whosoever therefore either of us or any of the People of Spain shall by any Conspiracy or Endeavour come to break and falsifie the Oath he has taken for the good State and Welfare of the Gothick Nation and the safety of the King or shall presume to kill the King or deprive him of his Royal Dignity or by a Tyrannical presumption shall Usurp the Throne let him be Anathema in the Eyes of God the Father and the Holy Angels and be cast out of the Catholick Church which he has profan'd by his Perjury and be turn'd out from all Christian Societies together with all the Complices of his wickedness because it is but just that they who are guilty of the same Crime should be involved in the same punishment Which therefore we think good to repeat again saying Whosoever from this time forwards either of us or of all the People of Spain shall by any Conspiracy or Endeavour break the Oath which he has taken for the good State of his Native Country and of the Gothick Nation and for the safety of the King's Person or shall presume to kill the King or deprive him of his Kingdom or by a tyrannical presumption shall Usurp the Throne let him be Anathema in the sight of Christ and his Holy Apostles and be cast out of the Catholick Church which he has profan'd by his Perjury and thrust out from all Christian Societies and as a damn'd Person be deliver'd up to the just Judgment of God to come together with all his complices and partakers Yea we repeat a third time That whosoever of us or any of the People of Spain in contrivance or deed break his Oath which he hath taken for the good Sate and Welfare of his own Native Countrey and the Gothick Nation and the safety and preservation of the King's Person or attempt the life of the King or deprive him of his Royal Dignity or by a tyrannical presumption shall Usurp the Throne let him be Anathema in the sight of the Holy Ghost and the Martyrs of Christ and be excommunicated from the Catholick Church which he has profaned by his Perjury and be renounced all Christian Communion without ever having any share or part with the Righteous but with the Devil and his
Angels be condemned to Eternal punishments with all his Partners joyn'd with him in the same Conspiracy that the same punishment of final perdition may reach all that are Complices and Partakers of the same guilt Wherefore if this thrice repeated Sentence be according to the mind of all you that are here present confirm the same with your Unanimous Voices Accordingly the whole Body of the Clergy and People have said and declared Whosoever shall presume to do any thing against this your Decree Let him be Anathema Maranatha that is accurst and damn'd at the coming of our Lord and have his share and lot with Judas Iscariot both they and their Complices Amen In consideration therefore of the Premises we Priests do admonish and warn the Holy Church of Christ and all the People to take care that this tremendous and so oft repeated Sentence of Excommunication may not make any of us obnoxious to present and eternal condemnation but that keeping the Faith we have sworn to our most Glorious Lord King Sisenandus and serving him with sincere Loyalty we may not only incline the Divine Clemency and Goodness towards us but may also deserve the favour of our Gracious Prince Amen We also with the Humility that becomes us do entreat thee These qualifications of a good Prince are most of them taken out of St. Austin Lib. 5. de Civitate Dei. O King here present amongst us and all Princes thy Successors for time to come that behaving your selves with all moderation and gentleness towards your Subjects you may in Righteousness and Godliness rule the People by God committed to your charge that so you may be able to give a good account of your Stewardship to Christ who has constituted you governing your Subjects with humbleness of Heart and being found in a constant endeavour of procuring their Good and Welfare That none of you alone may undertake to judge of Capital Matters or any Mans Estate but that by publick consent of the Judges and other Magistrates and in an open Tryal the Guilt of Delinquents may be made apparent observing a merciful disposition towards those who have offended that your indulgence and mercy in sparing may appear as well as your Severity in punishing So that all things by the assistance of God being administred and preserv'd by you with a godly Rule and Government you Kings may have reason to rejoyce in your People as well as your People in you and that God may rejoyce in you both And as to what belongs to all future Kings we pronounce this our Sentence that in case any of them without being restrain'd by the Reverence due to the Laws shall by a proud Lordliness being puft up with the Royal dignity by injustice violence and oppression exercise a tyranical and cruel Power against his Subjects let all such be condemn'd and anathematiz'd by Christ and be separated from God and subjected to his Judgments for that he presumed to act wickedly and to endeavour the hurt and ruine of the Kingdom And as for Suintilanus who fearing the punishment of his Crimes has deserted the Kingdom depriving himself thereby of the Royal Power we with the Consent of the People have Decreed that neither he nor his Wife nor Children shall ever be received by us into our Society because of the wickedness they are guilty of or restored to those Honours from whence they have been so justly cast down and that they shall not only for ever stand deprived of the Prerogatives of the Royal Dignity but also forfeit all the Wealth they have got by oppressing the miserable People except only that which shall be allow'd them by the goodness of our Gracious Prince The same Sentence we likewise pronounce against Geilanus the said Suintilanus his Brother as in Blood so in Crimes and Wickedness who was perfidious to his own Brother and has broken his Faith promised to our most glorious Lord wherefore we also cast him and his Wife and banish them from our Society together with those before-mentioned and exclude them from the Common-wealth of our Nation and that they shall not be restored to the Possessions which by wickedness they had gotten except only what they may obtain from the Bounty of our most Gracious Prince who as he is ready to enrich those that are good with bountiful Rewards so neither does he altogether exclude those that are wicked from his diffusive Beneficence Now Glory and Honour be ascribed to our Almighty God in whose name we are here Assembled and may Happiness Peace and a long continued Reign be the Portion of our most Pious Lord and Lover of Christ King Sisenand whose Piety and Devotion has caâ—l to this Assembly to establish and enact this wholesome Decree May the Glory of Christ strengthen and establish his Kingdom and the Gothick Nation in the Catholick Faith and multiply his Years and Virtues preserving him to the highest old age and may he after the Glory of his Reign here on Earth pass over to the Eternal Kingdom in Heaven that he may Reign there without end who here has Reigned well and happily by the grace and help of him who is King of kings and Lord of lords with the Father and Holy Spirit for ever and ever Amen The things above written being thus decreed and determined by us with the Consent and Approbation of our most Religious Prince we also have engaged never to infringe any Point thereof but exactly to keep and observe the same and because these things do greatly concern the good of the Church and the welfare of Souls we have thought good to strengthen and confirm the same by our particular Subscription that they may stand ratified for ever And accordingly was subscribed by all of them Concilii Toletani IV. CAN. LXXV POst instituta quaedam ecclesiastici ordinis Concilio Tolet. v. cap. 7. decernitur ut hoc decretum in omnibus synodis peractis publicâ voce pronuncietur vel decreta quae ad quorundam pertinent disciplinam postrema nobis cunctis sacerdotibus sententia est pro robore nostrorum Regum stabilitate gentis Gothorum pontificale ultimum sub Deo judice ferre decretum Multarum quippe gentium ut fama est tanta extat perfidia animorum ut fidem Sacramento promissam regibus suis servare contemnant ore simulent juramenti professionem dum retineant mente perfidiae impietatem Zach. 7. ef 8. Jurant enim Regibus suis fidem quam pollicentur praevaricant nec metuunt volumen illud judicii per quod inducitur maledictio multaque poenarum comminatio super eos qui jurant in nomine Dei mendaciter Quae igitur spes talibus populis contra hostes laborantibus erit quae fides ultra cum aliis gentibus in pace credenda quod foedus non violandum quae in hostibus jurata sponsio * * stabilis perm permanebit quando nec ipsis propriis regibus juratam fidem
paying Relief or making fine The Guardian of an Heirs Land shall take the reasonable Issues Customs and Services without destruction or waste of his Men or Goods And if such Guardian make destruction and waste he shall lose the Wardship and the Guardian shall keep in repair the Houses Parks Ponds Pools Mills and other Appurtenances to the Estate out of the Profits of the Land. And shall take care that the Heirs be married without disparagement and by the Advice of their near Kindred That a Widow shall give nothing for her Dower or Marriage after the death of her Husband but shall be suffered to dwell in her Husband's House Ninety days after his death within which time her Dower shall be assigned her and she shall immediately have her Marriage and her Inheritance The King nor his Bayliff shall not seize any Land for debt if the Debtors Goods be sufficient nor shall the Debtors Sureties be distrain'd upon when the Debtor himself is able to pay the Debt But if the Debtor fail of payment the Sureties if they will may have the Debtors Lands till the Debt be fully satisfied unless the Principal Debtor can shew that he is quit against his Sureties The King shall not allow any Baron to take Aide of his free Tenants but for the Redemption of his Person for the making his Eldest Son a Knight and towards the Marriage of his Eldest Daughter once and hereunto he shall have but a Reasonable Aid That none shall do more Service for a Knights Fee than is due for the same That Common Pleas shall not follow the King's Court but shall be holden in some certain Place And that Recognitions be taken in their proper Counties and after this manner viz. That the King shall send two Justices four times a year who together with four Knights of the same Shire chosen by the Shire shall take Assizes of Novel disseisin Mordancester and Darrein presentment nor shall any be summoned hereunto but the Jurors and the two Parties That a Freeman shall be amerced for a small fault after the manner of the fault and for a great fault according to the Greatness of the fault saving his Contenement A Villain also shall be amerced saving his Wainage and in like manner a Merchant saving his Merchandise by the Oath of good Men of the Vicinage That a Clerk shall be amerced according to his Lay-see in manner aforesaid and not according to his Ecclesiastical Benefice That no Town be amerced for not making Bridges nor Banks but where they have been of old time and of Right ought to be That the measure of Wine of Corn and the breadth of Cloth and the like be rectified and so of Weights That Assizes of Novel Disseizin and Mordancester be abbreviated and so of other Assizes That no Sheriff shall entermeddle with Pleas of the Crown without the Coroners and that Counties and Hundreds shall be at the ancient Farms without any Encrease except the King 's own Demesn Mannors If any Tenant of the King die the Sheriff or other the Kings Bayliff may seize and enroll his Goods and Chattels by the view of lawful Men but yet so as that nothing thereof be taken away till it be fully known whether he owe any clear debt to the King and then the Kings Debt shall be paid and the Residue shall remain to the Executors to perform the Testament of the Dead And if nothing be owing to the King all the Goods shall go to the use of the dead If any Free-man dye Intestate his Goods shall be distributed by his nearest Kindred and Friends and by the view of the Church Widows shall not be distrain'd to marry if they are minded to live unmarried provided they find Sureties that they will not marry without the King's Assent if they hold of the King or without the Consent of their Lords of whom they hold No Constable or other Bayliff shall take any Man's Corn or other Chattels but he shall forthwith pay for the same unless he may have respit by consent of the Seller That no Constable shall distrain any Knight to give Money for the keeping of his Castle if he himself will do it in his own proper Person or by another sufficient man if he may not do it himself for a reasonable Cause And if the King lead him in his Army he shall be discharged of Castleward for the time No Sheriff or Bayliff of the King nor any other person shall take the Horses or Carts of any Free-man to make carriage without his leave The King nor his Bayliffs shall not take any Man's Wood for Castles or other Occasions but by License of him whose the Wood is That the King do not hold the Lands of them that be convicted of Felony longer then a year and a day after which they shall be delivered to the Lord of the Fee. That all Wears from henceforth be utterly put down in Thames and Medway and throughout all England That the Writ called Precipe be not from henceforth granted to any person of any Freehold whereby a Freeman may lose his Court. If any be disseiz'd or delay'd by the King without Judgment of Lands Liberties or other his Right he shall forthwith have restitution and if any Dispute arise upon it it shall be determin'd by the Judgment of the Five and twenty Barons And such as have been disseiz'd by the King's Father or his Brother shall have Right immediately by the Judgment of their Peers in the King's Court. And if the King must have the Term of others that had taken upon them the Cross for the Holy Land the Archbishop and Bishops shall give Judgment therein at a certain day to be prefixt without Appeal That nothing be given for a Writ of Inquisition of Life or Member but that it be freely granted without price and be not denyed If any hold of the King by Fee-farm by Socage or Burgage and of any other by Knight's Service the King shall not have the Custody of the Heir nor of his Lands that are holden of the Fee of another by reason of such Burgage Socage or Fee-farm Nor ought the King to have the Custody of such Burgage Socage or Fee-farm and no Freeman shall lose his Degree of Knighthood by reason of petty Serjeanties as when a Man holds Lands rendring therefore a Knife an Arrow or the like No Bayliff shall put any man to his Law upon his own bare saying without faithful Witnesses That the Body of a Free-man be not taken nor imprisoned nor that he be disseiz'd nor Out-law'd nor Exil'd nor any way destroyed Nor that the King pass upon him or imprison him by force but only by the Judgment of his Peers or by the Law of the Land. That Right be not sold nor delay'd nor denyed That Merchants have liberty to go and come safely to buy and sell without any manner of Evil Tolls by the Old and Lawful Customs That no Escuage or Aid be
laid upon the Kingdom but by the Common-Council of the Kingdom unless it be to redeem the King's Person or to make his eldest Son a Knight or to marry his eldest Daughter once and for these a reasonable Aid shall be given That it be in like manner with respect to Tallages and Aids from the City of London and other Cities that have Priviledges therein And that the City of London may fully enjoy her ancient Liberties and free Customs as well by Water as by Land. That it shall be lawful for any Man to go out of the Kingdom and to return saving his Allegiance to the King unless it be in time of War for a short time for the common profit of the Realm If any borrow Money of a Jew be it more or less and die before the Debt be paid no Interest shall be paid for the same so long as the Heir is under age of whomsoever he hold And if the Debt become due to the King the King shall take no more than what is contain'd in the Charter If any Man die and owe Money to the Jews his Wife shall have her Dower and if he left Children Necessaries shall be provided them according to the quantity of the Freehold and the residue shall go to pay off the Debt saving the Services due to the Lords The like shall be observed in case of other Debts and when the Heir comes of age his Guardian shall restore him his Land as well stockt as he could reasonably afford out of the Profits of the Land coming in by the Plough and the Cart. If any Man hold of any Escheat as of the Honour of Wallingford and Nottingham Bonon and Lancaster or of other Escheats which are in the King's Hand and are Baronies and die his Heir shall pay no other Relief nor perform any other Service then he should have paid and perform'd to the Baron and that the King shall hold such Escheats as the Barons held them That Fines made for Dowers Marriages Inheritances and Amercements wrongfully and contrary to the Law of the Land be freely remitted or ordered by the Judgment of the Five and twenty Barons or of the major part of them together with the Archbishop and such as he shall call to him Provided that if one or more of the Five and twenty have themselves any like complaint that then he or they shall be removed and others put in their rooms by the residue of the Five and twenty That the Hostages and Deeds be restored which were deliver'd to the King for his Security That they that live out of the Forest be not obliged to come before the Justices of the Forest by common Summons unless they be Parties or Pledges And that the Evil Customs of the Forests and Foresters Warrens and Sheriffs and Ponds be redress'd by twelve Knights of each County who shall be chosen by the Good Men of the County That the King remove wholly from their Bayliff-wick the Kindred and whole Dependance of Gerard de Aties that hereafter they have no Bayliffwick to wit Engeland Andr ' Peter ' Gigo de Cances Gigo de Cygon Matthew de Martino and his Brethren and Gelfrid his Nephew and Phillip de Mark. And that the King put away the Foreign Soldiers Stipendaries Slingers and Troopers and their Servants who came with Horses and Arms to the Nusance of the Realm That the King make Justitiars Constables Sheriffs and Bayliffs of Men that know the Law of the Land and will cause it to be well observed That Barons who have founded Abbies for which they have Charters of Kings or ancient Tenure shall have the Custody of them when they are vacant If the King have disseiz'd the Welsh men or esloyn'd them from Lands or Liberties or of other things in England or in Wales let them presently be restored to them without Plea and if they have been disseiz'd or esloin'd from their English Tenements by the King's Father or his Brother without Judgment of their Peers the King shall without delay do them Justice as he does Justice to Englishmen of their English Tenements according to the Law of England and of Welsh Tenements according to the Law of Wales and of Tenements in the Marches according to the Law of the Marches In like manner the Welshman shall do to the King and his Subjects That the King restore Lewelin's Son and all the Welsh Hostages and the Deeds that were delivered to him for security of the Peace That the King do Right to the King of Scotland concerning restoring of Hostages and his Liberties and Right according to the Form of the Agreement with his Barons of England unless it ought to be otherwise by vertue of some Deeds which the King has by the Judgment of the Archbishop and others whom he shall think fit to call to him That all Forests that have been afforested by the King in his own time be disafforested and so of Banks which by the King himself have been put in defence All these Customs and Liberties which the King has granted to the Kingdom to hold and keep for his own part towards his Men all Clerks and Lay-men of the Kingdom shall observe and keep for their parts towards their Men. This is the Form of the security for keeping Peace and the Liberties betwixt the King and the Kingdom The Barons shall chuse Five and twenty Barons of the Realm whom they will themselves upon whom it shall be encumbent that with all their might they observe and keep and cause to be observ'd and kept the Peace and Liberties which the King has granted to them and confirm'd by his Charter to wit That if the King or his Justices or Bayliffs or any of his Ministers offend any Person contrary to any of the said Articles or transgress any Article of this Peace and Security And that such offence be made known to four of the said Five and Twenty Barons those four Barons shall go to the King or to his Justitiar if the King be out of the Realm declaring to him that such an abuse is committed and shall desire him to cause it speedily to be redressed And if the King or if he be out of the Realm his Justitiar do not redress it those four Barons shall within a reasonable time to be limited in the Charter refer the matter to the residue of the Five and twenty Barons And those Five and twenty with the Commonalty of all the Land shall distress the King all the ways they can to wit by seizing his Castles his Lands and Possessions and by what other means they can till it be redrest according to their good likeing saving the Person of our Lord the King and of the Queen and of their Children And when it is redrest they shall be subject to the King as before And whoever will may swear to put these things in Execution viz. To obey the Commands of the said Five and twenty Barons and to distress the King