Writers have fully made out That their Opinions are little more than of fifty years standing And it is as true that they are the fruits of Ambition Consider whether all those that ever undertook the defence of them did not do it to raise themselves in the Church and to be promoted to higher dignities than they could hope for from their merit Truth never employs any thing for its own defence but the light and evidence which are so connatural to it but would to God the Authors and Defenders of these Opinions had never practised any violent means to make their Party triumphant by which both Church and State have equally suffered and been both reduc'd to within two inches of their utter Ruine and Destruction I confess these Gentlemen have endeavoured to delude the World by alledging the Holy Scripture and Fathers in favour of their Opinion But herein they have behaved themselves as the Hereticks do in citing the Scripture and Tradition in defence of their Novelties that is to say wresting them to their own Perdition as St. Peter saith and making the Fatherâ— speak what best pleaseth them rendring them as pliable as the Sound of Bells which according to the Proverb do tink as the Fool is pleased to think And this is that which I undertake to justifie and make out by my Reflections on this Matter To perform this with some method I shall first of all explain the Original of the Power of Kings Secondly I shall examine the Extent of that Power And Thirdlâ— I shall consider the Remedy that may be justly opposed against the Abuse of it And in the sequel shall make it my business to apply these general Matters to most of the Western Kingdoms and shall make it evident That there is no pretext at all for the vast Pretensions of those who set no bounds to the Power of Kings and who believe that nothing but a Stoical and invincible Patience can lawfully be opposed to their Injustice and Tyranny And for as much as in examining these three Articles I shall be obliged to oppose the Prejudices of some New Divines I think my self bound to advertise the Reader That it is not against their Character but against their Opinions that I set my self and that I do not in the least pretend by entring into the Lists with them about a Political Question to derogate in the least from their Authority or to render their knowledg in Theological Questions suspected Tractent Fabrilia Fabri Let Smiths keep to their own Anvil for by their disregarding of this Proverb they have wandred and lost themselves They have cut the King lumping Penny-worths out of the Rights of the People and imprudently made way for the Establishing of that Tyranny which would infallibly in continuance have destroyed their Religion We must therefore if it be possible oblige these Gentlemen to permit others to enjoy their Rights and then the World will be happy I am not ignorant that there be many among those who are dipt in this Opinion that make great shew of Vertue and Piety But forasmuch as by this their Conduct they delude and hoodwink the People it is but fitting to endeavour to prevent this ill effect in defending the Truth Shall we account the Rights of Truth the less certain because they have escaped the discerning of some honest and vertuous Men Or the Delusion the less dangerous because proceeding from those that are such Let it be lawful for us then to bring back these Men from their Wandrings and to convince them that they ought no longer to defend Maxims whose falsity is not more visible than it is prejudicial to the Interest of the Church and Community REFLECTIONS UPON THE OPINIONS OF SOME MODERN DIVINES CONCERNING The Nature of Government in General AND That of ENGLAND in Particular CHAP. I. Concerning the Original of Sovereign Power WE may assert That the Rights of Sovereignty to speak properly have no Institution in the Law of Nature A Father indeed has his Children in his power and they are subject to him by a Natural Institution as well because they have received their Life from him which is the Foundation of all Good as also for that they are beholden to him for their Education which is another Life no less precious than the former But though this Power were not included within the narrow Bounds of each particular Family and though we should suppose it extended to the taking away of the Life of Rebellious Children yet certain it is that the Paternal Power is not unbounded with respect to Time for as soon as a Man is married and begins to form another Family this Act emancipates him from the Paternal Authority as Jesus Christ supposes when he said to the blessed Virgin John 2.4 Is not my hour come yet Which words Gregor Nyssâ—n explains thus An nondum venit mea hora quae praebet aetati ut imperet sui sit Juris Is not my hour come yet which allows my Age to command and leaves me at my own dispose But the case is not the same with Magistrates whose Authority reacheth over a whole Society composed of several Families for as they do not owe their Birth to the Magistrate nor are obliged to him for their Education as they are to their Parents their Command cannot be founded on the Right of Nature which subjects Children to their Parents Neither can we suppose that the Authority of Magistrates is bottom'd upon some Excellence they have by Nature above their Subjects I own there be some Vertues and Talents which do ordinarily submit the Spirits of such as know them to those who are adorned therewith and the highest degrees of Vertue and Wisdom do naturally procure a veneration for those that possess them But who sees not that this is insufficient to be the foundation of Civil Power A Magistrate is not always distinguished by these illustrious Talents and Qualifications which so powerfully attract Veneration in particular A Man may be very wise and yet be ne'er the more obeyed by those who don 't understand the price of Wisdom He may be very valiant but his Courage being unaccompanied with Prudence may render him contemptible in the Eyes of those who apprehend his Temerity It is plain then that it is not this natural difference God hath put between Men which is the ground of the Magistrates Authority Indeed the same is the case of Magistracy as of the Ceremonial Law which entred into the World because of Sin for certainly if Men in their behaviour liv'd up to the Precepts of the Law of Nature one Man would never invade what his Neighbour is possessed of either by Inheritance or by his own Industry One Man would not defile the Bed of his Neighbour or spill his Blood to hinder the Opposition his Neighbour might make against his Enterprises But because Men are so prone to violate those equitable Laws to sati fie their Passions and corrupt Inclinations
extrajudiciously notwithstanding he might have absolute knowledge of his Offence This laid down and there is nothing more evident it will be easie to determin how far the Obedience of Subjects is engaged in the various sorts of Government under which they resort As to those Governments or Powers which have no other Law but their own Will whether at first they were raised by way of Conquest which seems to reduce Subjects to the condition of Slaves or whether from lawful Governments they have by degrees degenerated into Tyranny by the Injustice of Sovereigns we ought naturally to distinguish between the use these Powers make of their Authority and their abusing of it by rendring their Authority unlawful and extending it beyond its just limits The Captain of a company of High-way-men that is a Father may exact of his Son the Obedience which a Child owes his Father but his quality of Captain of High-way-men does not give him any right to command his Son to rob or murther And so far is the Son from being obliged to obey such kind of Commands that he becomes Criminal by obeying them It is evident then That in these sorts of Governments as long as the Prince enacts Laws conformable to the fundamental Laws of the State and that he behaves himself as a Father of his Country there lies a necessity upon the People of obeying him and this necessity is founded upon their Relation to the Authority which is just and legal with respect to its Function and Exercise But we must judge otherwise when the Question is of unjust Laws which the Power enacts for the Oppression of his Subjects For then there seems no further necessity of obeying to lye upon the Subjects than what results from a desire of avoiding their own destruction which depends on the Pleasure of the Power that oppresseth them which cannot settle a lawful Right on Tyrants other than such as a Master may have over his Slave or Bondman according to the Laws of Servitude And as to Governments which are bounded by fundamental Laws it is apparent That the Powers having no Authority at all but according to the Laws whereby they are established their Subjects are set free from obeying them as soon as they transgress those Laws If a King who has no Power to make Laws will of his alone Authority undertake to publish any without the concurrence of those who share with him in the Legislative Power none of his Subjects are obliged to obey him If a King who has no right to lay any Taxes on his People undertake to charge them with Impositions the People are not obliged to pay ought of them If the King who has no Power to declare War doth do it without consent of the State the People are not obliged to go to War. Nothing is more visible than that Obedience may yet more justly be refused when Sovereigns undertake to overthrow the State in dispensing with all the Laws and in attempting to rule by an Arbitrary Power whereas the fundamental Laws of the State which are the Bond of the Society do only allow them a limited Power Hitherto our New Divines agree with others That Subjects are dispensed with from giving Obedience to an Illegal Power But forasmuch as a State must necessarily perish when subject to a Power that is resolved to overthrow all the Question is What may be expedient and lawful for People to do in this case There are but Two means imaginable to remedy so urging an Extremity The one is to resist the Power that abuseth his Authority thereby to oblige him for time to come to keep himself within the Bounds that are set him The other is to reject him altogether and to rid themselves of him when there appears no probability of reducing him to the terms of Justice and to the Rules of his Institution 'T is against these Two Articles our New Divines oppose themselves might and main They conceive on the one hand that though the People be not bound to obey unjust Commands yet they never can have any Right to resist the Sovereign Power no not when they make use of Violence to oblige the People to execute their wicked Designs This is the Doctrine of Non-resistance or Passive Obedience which has been so much agitated of late years And as to the other Article they maintain the People have yet less right to cast off their Princes or rid themselves of them how high soever the Abuses may be they commit in exceeding the bounds of their Authority and how Tyrannical or Arbitrary soever their Government may be That Sovereign Powers depend on none but God so that the People cannot without invading the Rights of the Deity undertake to depose or punish them These are the Points we are to consider at present I begin with Non-Rresistance otherwise called Passive-Obedience CHAP. VI. Concerning Non-resistance THis Doctrine of Non-resistance seems to me to be founded upon Three Suppositions which may be easily convinc'd of Falsity First These Gentlemen forge to themselves an Idea of Sovereign Powers and ascribe certain Rights to them which they afterwards look upon as Essential to Government and consequently as Rights inseparable from Sovereignty whatsoever sort of Sovereignty it may be Which Essential Rights according to their account are these First Not to be accountable to any but God. Secondly To have the whole disposal of the Sword. Thirdly To be exempt from all Coercive Power whatsoever Fourthly Not to be liable to suffer Resistance on any pretext Fifthly to be invested with the Legislative Power They conceive that without these Rights a Prince is still but a Subject and consequently that they are all Essential to Sovereign Power and therefore inseparable from it Upon these Premises they with ease establish this Conclusion That forasmuch as the Right of not being liable to Resistance is inseparably annexed to Sovereignty the People can never of Right resist their Princes on any pretext whatsoever If we object against this their Scheme That the Rights they attribute to Sovereignty are such as cannot agree with a Sovereignty limited by Laws which allow of Resistance because there can be no Authority but by Law and according to Law Whence it follows That it is lawful to Resist him who has no Authority They suppose in the Second place That all Limitations whatsoever do only respect the Exercise of the Sovereign Power without being able in the least to derogate from the Essentials of Sovereignty and that after all these Limitations are only the Effects of the consent of Sovereigns which proceeding only from their good will are revocable ipso facto as soon as it pleaseth them so to do The Third Supposition is this They pretend that the Holy Scripture holds to us such a Power inherent in Sovereigns as can never be lawfully resisted and that it exhorts People to submit themselves so absolutely to it that they never undertake to oppose themselves against its unlawful Effects
otherwise than by Patience when they are convinced in Conscience of the Injustice of the Laws and Commands enjoyned 'T is an easie matter to overthrow the First of these Suppositions First I would fain know who has given these Gentlemen the Power of determining as they do what is Essential to Sovereignty Do they derive these their Notions from Revelation or from Reason which is common to all Men If they say they derive the definition they give us of Sovereignty from Revelation they will do well to point us to the places of Scripture where this Notion is set down If they draw it from Reason then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion and it seems to me an inextricable thing that so many Nations should agree to reject what they approve and to approve what they reject To say here That they draw this definition from the Idea of Sovereignty which loseth its nature when divested of these Characters shews they are willing either to abuse themselves or others by a pitiful Equivocation The word Sovereign imports a relation to Inferiors and as the relation has a certain foundation so it is likewise evident that it hath its bounds set proportionable to its foundation Where there is no Authority neither is there any foundation for Obedience Now there is no Authority but in proportion to the Laws which establish the Authority wherefore it incontestably follows There can be no Authority where the Law is so far from allowing any that it opposes it It will never cease to be true That the Authority is Sovereign though it be not so in all respects The Consuls of Rome were Sovereign Magistrates though the People had Power to oppose themselves against their Authority when they abused the Power they were intrusted with for the good of the Commonwealth In France they give their Parliaments the Name of Sovereign Courts though their Sentence be not always irrevocable The Second Supposition is only founded upon this Notion That Conquerors having invaded the Liberty and Privileges of the People were afterwards so kind to restore some part thereof to them again by their Concessions but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them as if their Power was altogether Unlimited and Arbitrary This Notion is much the same with that of the Partisans of the Court of Rome who maintain That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church whereas the French pretend That they are common Rights and Franchises which their Ancestors have constantly maintained according to what P. Pithou declares concerning them But indeed to speak truly this Supposition cannot be admitted with respect to conquered States at least for the most part Ordinarily a Conquest is made upon the Power that governs the State so that the State only changes its Master the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England when King William conquered it who at his Coronation sware to keep the Laws of St. Edward and his Successors were fain to swear the same Now one of these Laws c. 15. T. 1. Spelm. p. 622. imports That a Prince that abuseth the Power he is intrusted with does lose the Title of King From whence it follows That his Subjects need not own or obey him and that consequently it is lawful to resist him To maintain That a King whose Power is limited by the fundamental Laws of a State and which he is invested with upon that condition when at his Coronation he swears to the People is indeed obliged to keep the said Oath for fear of God but that he is not at all engaged by this his Oath to the People is rather a piece of Raillery than Reasoning What Does not the Oath the People swear to the King oblige them in Allegiance to him and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People Surely if we well weigh the case 't is impossible but we must discern a palpable falsity in this Opinion of Passive Obedience in the way these Gentlemen propose it First They grant a Right unto Sovereignty which is diametrically opposite to the end of Sovereignty according to the Divine Destination For the good of the Society and its Subsistence was God's End in insticuting of the Sovereign Power whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society whensoever it shall please the Sovereign his Subjects in the mean time having no means to attain the said End or being in any condition to hinder their being deprived of it Secondly They suppose That God in allowing a lawful Right to Sovereigns has subjected the People to a necessity of groaning under an Illegal Right and which God has never bestowed upon them and for the Usurpation of which he will condemn those who do arrogate the same to themselves which is much to the same purpose as if I should say That because God has established Judges he has thereby obliged the People to suffer Robbery when the Judges shall think fit to turn Robbers Thirdly They make the condition of a Civil Society more unhappy than was the condition of Families in the state of Nature before Societies were formed For the liberty of defending one's self is permitted to every one by Nature but after the Society is once formed it would follow That the whole Society would be obliged by a Principle of Conscience to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula Fourthly They turn to meer Chymera's and Visions whatsoever the wisdom of Men have been able to find out to make States happy by securing them against Tyranny I speak of Laws and Oaths the Laws are the bands and cement of the Society and the foundation as well as the measure of the Obedience we owe to Princes The Oaths are the Seal of the Contract by which the Subjects are obliged to obey them upon condition that they govern according to Law. But all this is to no purpose and is of no use to the People as soon as the Tyrant thinks fit to overturn the Laws and to mâ—ke a Scoff at his Oaths Forasmuch as the Third Supposition viz. That the Scripture maintains Non-resistance with regard to Sovereigns whether they act according to or against Law is of greater importance it will be convenient to examine the same more heedfully and the rather because Men of Abilities and Learning have endeavoured strongly to assert it and to make it pass current with others and that with all their might CHAP. VII That the Scripture doth not assert the point of Non-resistance FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle to wit that of our
therefore is the Magistrates Authority become necessary And how great soever we may conceive this Authority to be yet we must acknowledge that God never instituted it till after the Deluge as appears from Gen. 9.6 We read in the Scripture that Cain when he had kill'd his Brother Abel told God That he feared that every one that met him would kill him but do not find that he did in the least apprehend that his Father as his Natural Sovereign should sentence him for that Murther This Impunity of Cain prov'd an encouragement to Lamech as we see Gen. 4.24 It seem'd indeed that the Authority of Adam their common Father together with that of the Patriarchs might have been sufficient to contain Men within the Bounds of their Duty as well as the near Relation and Alliance that was between them But this Paternal Authority having by the space of fifteen Ages been found incapabâ—e to restrain the licentiousness of Men and too weak to put a stop to their Debaucheries and Murthers which at last drew down the Deluge upon them we find that God afterwards instituted Magistracy as a stronger Curb to stop the impetuosity of Mens exorbitant Passions Moreover Men being obliged to separate themselves from one another in order to their peopling of the whole Earth consequently could not observe the same Principles of Communion which linked them together under the Patriarchs wherefore it was Natural to substitute to that Patriarchal Authority a Government more accommodated to the state of Men in their different and dispersed Habitations Wherefore because Men had learnt from the Example of those who were drowned by the Flood to make small account of the remonstrances of their Parents as well as of the Divine Denunciations God thought fit to lay a more strong Curb in their Mouths and to restrain them by making temporal Death the Reward of those who would not be contain'd within the Bounds of their Duty by the fear of Eternal Sufferings in these words Whosoever sheddeth Man's Blood by Man shall his Blood be shed This being the sense and full import of this Declaration according as the Jews unanimously agree Now this granted it is evident that since Soveraign Power was instituted by God for a Curb to sin we must suppose that there be Laws which serve for a foundation of Society and for the conservation of which Soveraignty was introduced at first 't is to make these Laws inviolable and by punishments to restrain the unruliness and exhorbitance of the passions of Men from transgressing of those Laws that the Sword at first was put into the Soveraign's Hand and power given him to punish Criminals or utterly to cut them off as destructive to Society it self From these two Principles we very naturally deduce a third viz. That the Character of a Soveraign consequently requires That he who is clothed therewith be one of the most perfect of the Society that is one at the greatest distance from a disposition to violate the Laws for if he encourages others by his Example to violate them and if by this means he subvert the foundations on which the Society subsists directly crossing the design and aim for which he was made a Soveraign it is evident to a demonstration that he possesses the Soveraignty contrary to the intention of God and the natural end of Society Nothing is more evident than what I have here laid down but it respects only the Society considered with regard to those of whom it consists for if we look upon it with respect to those who are strangers and who may destroy it by invading it by force of Arms it appears clearly that the Soveraign being the defender of Justice at home finds himself naturally obliged to protect the Society by Force so that together with Justice he ought also to be qualified with the Character of Valiant that he may oppose himself with Success to all Enemies from abroad and hinder them from destroying the Society And lastly the Character of Wâ—se is particularly required in a Soveraign for neither Justice nor Valour are of any great use as loâ—g as they are separate from Wisdom and Prudence Wisdom is useful in Peace and no less in time of War is necessary with respect to Subjects as well as Enemies she shines forth in Treaties as well as Ruptures she is of use in the prosecuting of injuries as well as in the choice of means to obtain reparation she finds out Expedients against the greatest difficulties and in a word we may say that without her the Political Government is as a Body without a Soul and a Ship without a Pilot or Helm which is abandoned to the Winds to be tossed at pleasure and which at last perisheth infallibly by dashing it self against the first Rock it meets with If we attentively heed what hath been here advanced we shall find that this has served as a common Principle to all the different forms of Government that have at any time obtained amongst Men. Indeed it is not easie to determine what form of Government God instituted by that Law mentioned in the Ninth of Genesis whether he by those words determined the Authority to one or more Magistrates because the word Man is often taken collectively to express many so that the words are too general to decide this question they conclude only that Murther is to be punished with Death From whence we infer that the Magistrate has power to punish Murtherers and other Criminals that destroy the Laws whereby the Society subsists It is manifest therefore that by reason and experience Men came to prefer one kind of Government before another and variously to divide the Authority amongst many according to the different acts to which it ought to be extended It seems that force was at first only made use of as a refuge for the weak either to destroy the wild Beasts that devoured their Cattle and some times Men too or to put a stop to the injustice of those whose bodily strength inspired them with designs to rob the weaker sort of their possessions And it is very probable that forasmuch as soon after they observed that the force which protected them might as well oppress the Society for whose defence and protection it was armed they found that Magistracy could not be lookt upon as an advantage if it were not committed to the wise conduct of the most antient of the Society who seem to have been the Judges Magistrates and Counsellors of State among all Governments that were ever instituted with any prudence Those who considered the great parts that are necessary for the governing of a Society preferred the way of choosing their Governours Those who had experienced the ill effects of corrupt Elections by Bribes or other ways followed the way of taking for their Governours the Children of those who had ruled them with Prudence They who observed that one person is rarely capable of resisting and moderating so many different passions as may
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
they were established upon some fundamental Laws or Customes And I very much question whether any such example can be produced no not in the Empire of the Turks which has been always lookt upon as the most Absolute and Despotical Government where the Soverâ—igns have attributed to themselves so vast and unbounded a Power and actually enjoy'd the same I know it is commonly apprehended that Conquerors such as Nimrod and many others did in so absolute a manner possess themselves of all the Rights of Sovereignty that there was nothing left to their Subjâ—cts of what Rank or Order soever But to declare my sense of this matter we are to observe First That Conquerors had no other aim but to rob other Sovereigns of their Power without changing any thing in the Government of the State they had invaded Secondly That those Invasions having no other foundation but a Conquest by force of Arms and Violence contrary to the Law of Nature which made Seneca call this sort of Conquerors Magnos furiosos Latrones great and furious Robbers these Conquerors easily perceived it was necessary for them to trim and rectifie this their unjust Power if they would have their Authority to be lasting whereupon they accordingly took care to moderate it by Conventions and Laws to the Justice of which the People gave their consent Thirdly That these Conventions and these Laws were to speak truly and properly the lawful Title of all the Authority their Subjects owned in them Fourthly That this consent of the Subjects always supposeth that the ends of Government be preserved except we should perswade our selves that there be Subjects Fools enough to consent to a Government whose aim should not be levelled at their Advantage and Prosperity 'T is horribly to delude ones self to found the Idea of an Absolute Government in all respects amongst Men upon a notion of the absolute Empire God has over all his Creatures for is it not evident that this Divine Empire supposeth an immoveable Justice and infinite wisdom and a most tender love for his Creatures which are the Essential Attributes of God and which cannot be found in any mortal Man But some it may be will tell me That I contradict the Stile of Holy Scripture in denying that Tyrants can lawfully enjoy so absolute a Power when the Prophets tell us concerning some Kings That God gave them such absolute Power as we find it exprest in particular concerning Nebuchadnezzar Dan. 5.18 19. But the answer to this Objection is obvious First That which ought to be referred to God's Permission only is not to be attributed to a concession of the Deity which latter is only sufficient to establish a lawful Right for otherwise we must say That God had given a just right to the false Prophets to deceive Ahab by their lying Oracles If this be not the case let any Man answer me these Two Questions First Whether Nebuchadnezzar sinned in using this absolute Power which he had without any consent or concurrence of his Subjects in killing them without cause and contrary to the Laws of Justice and Equity Secondly Whether God could justly punish Nebuchadnezzar as he did for making use of this Tyrannical Power which he had suffered him to invade Nemini injuriam facit qui jure suo utitur He that makes use of his own Right injures no body is a Maxim of Law. Secondly Otherwise we should be fain to suppose That those who at any times have raised themselves against Tyrants had been great Criminals whereas the Holy Scripture doth set them forth for Heroes such as Ehud who have undertaken to rid the World of their unjust oppression by killing them Possibly it may be further objected to me That by these assertions I oppose the Doctrine of the Old and New Testament which equally command all both Jews and Christians to submit themselves to the Powers that had conquered them and particularly to the Power of the Romans who pretended to be absolute over all their Subjects But it will be found that there is nothing at all of any contradiction between that which I maintain and what is here objected The Jews being conquered by Nebuchadnezzar were become the Slaves of that Monarch and owed him all manner of obedience which Bondmen do to him who has saved their Lives when it was in his power to kill them And for the rest the Scripture does not determine whether the Tyrannical power they attributed to themselves be lawful or no. Sure it is that an unlawful and Tyrannical Sovereign may rule legally in several respects in which case it imports little to those who are subject to it contrary to their wills whether the Power under which they are be lawful in all respects or not Let this therefore be laid down for a certain truth That every lawful power is necessarily limited by Laws That these Laws are the foundation of the Government from which the Sovereigns cannot depart without overturning the Society for the subsistence of which the Political Government was at first instituted by God. But this is not the only kind of limitation which may be observed in the Powers that govern Societies As God has not prescribed any sort of Government in preference to others the Wisdom of Men have diversly limited the way and constitution thereof Most People finding by Experience That Monarchy though it have many advantages before other Governments is apt to degenerate to Arbitrary Power thought it fitting that the greatest Lords of the Community should concur with the King in the exercise of his Authority others again were of Opinion That the People ought to have the chiefest share in the Government forasmuch as the main end of the Government is to make them happy These different apprehensions of Men have established the several forms of Government the aim of those who contrived those different forms being only to prevent oppression and injustice which directly cross the end of Government CHAP. V. Concerning the Extent of the Power of Sovereigns WHat I have here set down concerning the Nature of Governments the most Absolute of which are not unbounded by the Laws of God by the Laws which constitute the Right of Nations by the fundamental Laws of the State and more particularly by Bounds prescribed to the Authority of Sovereigns sufficiently shews what is the just extent of Sovereign Power and how far Men are obliged to yield Obedience to it Indeed forasmuch as Authority and Obedience are relative terms which reciprocally establish or overthrow one another it is easie to judge That Obedience cannot be due to Authority but in proportion to the extent of the Authority Paternal Authority in the manner as God had established it under the Law could not inflict Death upon a Son but in the presence of the Judges and upon the hearing of Witnesses The Authority of a Judge cannot be discharged but in the due Forms of Judicature and according to the Laws he cannot punish a Criminal
themselves to have Right and that it was their Duty to reject Athaliah who tho she was a Woman yet had invaded the Throne 2 Kings 11 ch ver 3. which the Jews pretend to be contrary to the Law set down in the 17 of Deuteronomy 4ly They declare that King Herod appeared as a Criminal and indicted Person before the Sanhedrim tho they mistake themselves in the story related by Josephus lib. 14. cap. 17. Antiq. whence it appears that he was only Vice-Roy I acknowledge that Casaubon Exercit. 13. § 3. from whence Bishop Vsher seems to have taken it maintains that the Jews believe That no Creature can judge the King but God alone and to this purpose quotes a passage out of Midrasch Devarim Rabba in Shophetim but it is now 64 Years since Schickard has observed Casaubon's mistake in handling a matter he did not understand for indeed the Jewish Maxims are directly opposite to it 1st In the place by him cited we find a Gloss which shews that that passage did not concern the Kings of Judah but those of Israel who by their Power had changed the Government into Tyranny Schickard de Jure Regio pag. 63 64. and trampled under Feet the Laws of God which made them obnoxious to punishment 2ly We must observe that the Jews believ'd that the Maxime never took place but a little before the last extirpation of their States upon occasion of one of their last Kings named Jamneus Gemar in cap. 2 Sanhedrim I own that Samuel doth not set down any express Law for the deposing of Kings or punishing of them when turn'd Tyrants but yet he supposed as a thing certain and evident 1st That their Crimes being contrary to the Law were punishable according to the general Definitions of the Law against Idolaters and other Criminals We don't find that God has spoken any thing in particular neither concerning the High-Priest from whence the Papists falsly conclude That he was exempt from Punishment tho he did transgress the Law. 2ly I say that tho the Execution of those Laws was not committed to Inferiour Magistrates yet did it of right belong to the publick according to the natural Dictates of common Sense But after all whatsoever Idea we may frame of the Jewish Monarchy I maintain that it cannot be of any consequence to other States 1st Because that State was formed immediately by God for particular Ends which do not respect other Societies God might by Example grant to the Family of David which he had a mind to distinguish from others some Prerogatives which he had no design to communicate to other Soveraigns 2ly Because it is false that God has granted any particular Right to the Kings of Israel contenting himself to give way to the Peoples desire who would be govern'd by a King like their Neighbours 3ly Because whatever the Rights of Royalty may have been amongst the Jews it is certain they have been abolished by an Order of Providence which has wholly destroy'd the State of the Jews and the Rights of their Kings We don't find that Jesus Christ obliged his Followers to regulate their Obedience to Soveraigns according to the measure of Obedience the Jews rendred to their Kings 4ly Neither do we see that the Jews since their dispersion did ever take part with Tyrants when the States where they lived rejected them or that they thought themselves oblig'd thereto by the Law. 5ly We should be forced to suppose that all the Christian States and all the Bishops and Pastors in the Churches and States without the Roman Empire had been pitifully mistaken in not following or recommending this Judaical Form of Despotical Royalty and purely Tyrannical described by Samuel which is so strangely extravagant that it is unworthy to insist on the refutation of it CHAP. X. Concerning the Royal Law in favour of the Roman Emperors 'T IS a difficult thing to understand the Nature of the Western Governments without being acquainted with the Nature of the Government of the Roman Emperors of that Empire whose Ruin has been the rise of most of the Western Monarchies Now it is certain that as Contraries serve to illustrate one another so the opposition which is found between the Constitution of those Kingdoms and that of the Roman Empire will afford us a clear sight of the Characters which distinguish them We must know then that in the Year 729. of the City of Rome Dion lib. 53. Tacit. annal lib. 2. Augustus and Norbanus being Consuls Lata est Lex Regia quâ summa Regia Potestas quam sibi Populus Romanus ab ejectis Regibus sumpserat in unum Principem translata est ita ut is nulla Legis necessitate teneretur omnique jure scripto solutus esset ei verò parerent omnes The Royal Law was enacted whereby the Sovereign and Kingly Power which the People of Rome ever since their rejecting of the Kings had taken to themselves was transfer'd upon the Prince alone so that he was not bound to the Law at all and was exempted from all written Constitutions but that all were to obey him This is the true Epocha of the Power which the Roman Emperors had of making Constitutions and to publish Answers to Questions of Law proposed to them Antonius Augustinus has published some of the Remains of the Royal Law which was divided into several Tables See here some of the chief Articles of it which Gruterus has inserted in his Inscriptions pag. 242. foedusve cum quibus volet facere liceat ita uti licuit Divo Augusto Ti. Julio Caesari Augusto Tiberioque Claudio Caesari Augusto Germanico Vtique ei Senatum habere relationem facere remittere Senatus-consulta per relationem discessionemque facere liceat uti licuit Divo Augusto c. Vtique cum ex voluntate Authoritateve jussu mandatuve ejus praesenteve eo Senatus habebitur omnium rerum jus perinde habeatur servetur ac si è lege Senatus edictus esset habereturque Vtique quos Magistratus potestatem Imperium Curationemve cujus rei petentes Senatui Populoque Rom. commendaverit quibusque suffragaâ—â—onem suam dederit promiserit eorum Comitiis quibusque extra ordinem ratio habeatur Vtique ei fines Pomoerii proferre promovere cum ex Republica censebit esse liceat ita uti licuit Ti. Claudio Caesari Augusto Vtique quaecumque ex usu Reipublicae Majestate Divinarum Humanarum Publicarum Privatarumque rerum esse censebit ei agere facere jus potestasque sit ita ut Divo Augusto Tiberioque Julio Caesari Augusto Tiberioque Claudio Caesari Augusto Germanico fuit Vtique quibus Legibus PlebÃsve scitis scriptum fuit ne Divus Augustus Tiberiusve Julius Caesar Augustus Tiberiusve Claudius Caesar Augustus Germanicus tenerentur his Legibus Plebisque scitis Imperator Caesar Vespasianus solutus sit quaeque ex quaque Lege rogatione Divum Augustum Tiberiumve Julium Caesarem Tiberiumve Claudium Caesarem Augustum Germanicum facere oportuit
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
the same Limitations of the Regal Power in Denmark as Pontanus observes in his 8th Book and it was for endeavouring to break through these Bounds that Christiern the II. was deposed as may be seen in Petersen in Chron. Holsat Where he hath set down the Acts and Reasons of the State of Denmark about that Proceeding That the Power of the Kings of Hungary was a Power limited by the Fundamental Laws of the State is a Matter so notorious that Chalcondilas has made it his Observation in the second Book of his History where he compares the Royalty of Hungary in that respect to the Kingly Power in England And which may be farther made out by the Fundamental Laws of Hungary set down by Bonfinius Decad. 4. lib. 9. Where we also find the Oath taken by those Kings at their Coronation being the most expresly conditional that can be imagined Chalcondile saith the same Thing of the Kingdoms of Arragon and Navarre Lib. 5. where he observes that the Kings did not create the Magistrates that they could not make any Garrison without the Consent of the People and that they could not require any thing of them contrary to their Customs that is to say contrary to their Laws Accordingly we find that the Kings of Spain have no Power to lay any new Impositions upon their Subjects without their consent They are obliged to swear they will observe the Laws And in Arragon the People declare to the King at his Coronation that if they do not perform their Oath and Promise their Subjects are thereby set free from their Oath of Allegiance We find the same Thing in the History of the Kingdom of Portugal but especially in that part of it which gives an Account of the Reign of Alphonsus III. The Fundamental Laws of which Kingdom we find in the 17th Title of the Ordinances of Portugal Lib. 2. § 2 3. seq So true is it that all those Kingdoms never in the least supposed that their King had an Absolute Power over them And it is as certain that almost all those States have always maintained That the Power of their Soveraigns was so limited 1. That they could make no Laws without the States General of the Kingdom 2. That they could not levy any Mony on their Subjects without their Consents 3. That they could not break the Laws according to their Will and Pleasure 4. That in case of their violating the Fundamental Laws of the State they were liable to be deprived of a Power which they abused 5. That the States were free to chuse such a Form of Government and such a Person for to govern them as they thought most expedient for them This is that which I intend to prove more particularly by Examples taken from the Empire and the Kingdoms of Poland France Scotland and England to which I shall add some Remarks upon those Titles which deceive some who consider Things of this Nature with too little attention CHAP. XII That the Power of the Emperors of the West is a Limited Power THis is a Matter that may be easily gathered from these following Instances 1. Because Charles the Great who was the first that took upon him the Title of Roman Emperor reigned according to the Customs of the Princes of Germany of whose Opinion concerning an Absolute and Despotical Government Tacitus has given us some Account who represents them as having the greatest abhorrence for it 2. Because Lewis the Good did himself acknowledg that the Soveraign Power was shared between him and the chief Members of the Empire Capitular Lib. 2. Tit. 3. Sed quanquam summa hujus ministerii in nostra persona consistere videatur tamen Divinâ Authoritate humanâ ordinatione ita per partes divisum esse cognoscitur ut unusquisque vestrûm in suo loco ordine partem nostri Ministerii habere cognoscatur But though the whole of this Ministry seem to consist in our Person yet it is known to be so shared and divided as well by Divine Authority as Humane Ordination that every one of you in his respective Place and Order is known to partake of this Ministry Thus was he pleased to express himself in the Assembly of the States General whose Authority he owned to be as much of Divine Right as his own which made Charles du Moulin the most famous of all French Lawyers say Ergo solum Caput non omnia potest imo persona Principis non est Caput nisi Organicum sed verum Caput est Principatus ipse cum membris integrantibus eum Wherefore the Head alone cannot do all yea the Person of the Prince is only the Organical Head but the true Head is the Principality it self with its integral constituting Members Which are his express words in his Commentaries upon the Stile of Parliament dedicated to the first President of Paris and printed with Priviledg 3. Because though the Western Empire did seem to be so Hereditary that the Emperors had divided it amongst their Children yet in process of time it became Elective which began to take place in the Eleventh Century in the Person of Rudolphus 4. In that they always excluded Females from the Succession to the Empire though they had respect in their choice to the Imperial Blood. With respect to the Rights of Soveraignty we find that tho the Empire be a Monarchical Government yet we see it is mixed with Aristocracy for the Emperor cannot enjoy it but with the Consent of the States of the Empire without making himself liable to be contradicted and deposed also He has not the Right of making Laws without the Consent and Authority of the States of the Empire He has no right to declare War without the foregoing consent of the States He has no right of levying any Imposition on the States without the Consent of the Diets Whenever he begins to usurp the Rights that do not belong unto him and to infringe the Rules of Government he has sworn to observe the States have a Right to oppose his Enterprizes to repel Force with Force and finally to deprive him of the Empire in case he continue in the Design of changing the Form of Government For though there be no Laws which bound and regulate the Article of the Deposing of Emperors when they abuse their Power for the overturning of the State or for invading the Rights of the Princes of the Empire and Imperial Cities yet the Germans have always held and still do hold it for a certain Truth that it is a Right inherent in the Empire to deprive an Emperor of the Imperial Power and Dignity and to confer the same on another This is the common Opinion of the German Lawyers represented to us by Lampadius Arnizaeus Diderick Conringe and many others And indeed we may say that there is nothing more certain if we consider the Examples of Emperors that have been deposed since these 7 or 800 Years Examples that are neither rare
Denunciantes Regi per nuncios solennes quatenus omni dilatione remota ejiceret by solemn Messengers requiring the King that without any delay he should turn out those Strangers 3ly They judged that if the Sword of St. Edward called Curtana signified that the King reserved to himself the Right of exercising Justice against Delinquents yet he was liable to the same Penalties with private Persons whenever he transgress'd the Laws of the State whereof he was the Keeper and Defender as the same Matth. Paris explains it in the Life of Henry III. much after the same manner as Aurelius Victor reports in the Life of Trajan That that Emperor understood the Ceremony of delivering the Sword to the Prefect of the Pretorium Surely if we consider our History we shall find 1. That the Kings alone never had the Power of making Laws 2. That they had no Power to lay Taxes on the People 3. That they had not always the Power of making Magistrates 4. That they had not the Right of waging War without the Advice of Parliament as is observed by Philip de Commines Lib. 4. cap. 1. 5. That as they were chosen by the People they had also Power to depose them Nennius the most ancient English Historian after Gildas tells us That Vortigerne was deposed by St. Germain and the Council of the Britains because he had married his own Daughter who placed his Son Vortimer upon the Throne Edward II. Richard II. 6. That the States have cut off the Succession may be seen by Henry VII Indeed we find that our Ancient Lawyers our Ministers of State and our Kings who of all Men ought well to understand the Form and Constitution of our Kingdom were so far from believing that the Royalty in England was an Absolute and Unlimited Government that they have expresly declared that it is a Government bounded by Fundamental and Essential Laws and composed of a mixture of Monarchy Aristocracy and Democracy See how Bracton expresseth himself to this purpose Lib. 2. c. 16. Fleta l. 1. c. 17. In populo regendo Rex habet Superiores Legem per quam factus est Rex Curiam suam viz. Comites Barones Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum ideo si Rex fuerit sine fraeno id est sine Lege debent ei fraenum ponere In Ruling the People the King has above him the Law by which he is made King and his High Court viz. the Earls and Barons Earls are so called as being the King's Companions and he who has a Companion has a Master and therefore if the King be without Bridle that is without Law they must bridle him Chancellor Fortescue saith That the King cannot alter the Laws of his Kingdom for he governs his People not only by a Regal but a Political Power when it is said the Prince's Will has the Force of a Law this saith he is to be understood of a Regal or Absolute Power from which a political Power much differs for such can neither change the Law nor charge the People with new Impositions against their Wills. This is a thing so notorious that Philip de Commines has taken notice of it in his Memoires Lib. 4. cap. 1. and elsewhere as also Polydore lib. 11. Neither have those only who have expresly treated of the Government of England as Secretary Smith consider'd our Monarchy as a Government mix'd and bounded but Charles I himself spake of it in these terms There being three kinds of Government absolute Monarchy Aristocracy and Democracy and all having particular Conveniences and Inconveniences the experience and Wisdom of our Ancestors hath so moulded this out of a mixture of those as to give this Kingdom the Conveniences of all three without the Inconveniences of any one as long as the ballance hangs even between the three Estates and they run jointly in their proper Channels The ill of absolute Monarchy is Tyranny of Aristocracy Faction and Division of Democracy Tumults Violence and Licentiousness The Good of Monarchy is uniting a Nation under one Head the good of Aristocracy is the conjunction of Counsel in the ablest Persons for the Publick Good the good of Democracy is Liberty and the Courage and Industry which Liberty begets The Lords being trusted with Judicatory power are an Excellent Skreen and Bank between the Prince and the People by just Judgment to preserve the Law wherefore the Power of punishing is already in your hands according to Law. Let any one judg after all this whether our Ancestors ever entertain'd any of those pernicious Maxims maintain'd by some of our Modern Divines Maxims that have been the fruitful Mother of Tyrants viz. That Princes can dispose of the Goods Body and Lives of their Subjects at their pleasure That they are not subject to Laws or to give any Accompt That their Succession to the Throne is by Nature and Generation and not at all by the Authority or Approbation of the States That neither their Merits or Demerits can be brought into consideration to alter any thing about the Right of their Succession which is unalterable That without precipitating our selves into eternal Condemnation we may not oppose their Designs though directly and openly level'd at the Ruin of the State and the Change of Religion In a word that they may commit all manner of Injustice and Violence they please and that safely and securely because none but God alone can punish them CHAP. XVI An Answer to some Difficulties moved against this Truth AFter having set this Matter in so clear and evident a Light it is not without some Shame and Reluctancy that I make a stop to answer some insignificant Difficulties which those who defend the unlimited Power of the Kings of England oppose to the proofs I have alledged However such as they are I am willing to consider them that I may rid the Makers of them from the least pretext of continuing any longer in so gross and dangerous an Error They alledge in the first place the Title of Imperial given to the Crown of England which in their Judgments seems to equalize our Kings with the Roman Emperors and to attribute an absolute Empire or Dominion to them concerning which I have already shewed that tho this Title were well grounded yet the consequence they draw from thence would be null whether we consider the antient Roman Empire or whether we consider the Empire as it is now in Germany I add here for a further clearing of this Matter that the same thing happened to the Kings of the West with regard to the Emperor of the West as befell the other Kings who rose after the Destruction of the Roman Empire and to the Emperor of Germany with respect to the Emperors of the East The Emperors of the East as appears from the Embassy of Luitprand at Constantinople could not endure that other Princes should take upon them the Title of 〈◊〉 〈◊〉 〈◊〉
State as having lost its Liberty since their consenting to the Establishment of Tyranny and consequently having no right to attempt any thing towards the Recovery of it But I desire those who fain would obtrude this Delusion upon others as they have upon themselves to consider 1. That known Maxime of Right Possessor malae fidei non praescribit An unjust Possessor makes no Praescription Indeed if this be true That a Man needs only usurp the Goods and Rights of another to make himself the lawful Master of them Robbers Usurers and those who by abusing of the Law deprive others of their Rights will be found to be of the best and most thriving Trades in the World. If this be so the Church of Rome and the Pope by the Possession they have been in for so many Ages must carry it by Prescription to hang burn and massacre neither can any one oppose himself against their just Title 2. They ought to consider that if Kings be accounted Minors or under Age because they cannot alienate their Dominions as being only granted them for the good of the State the People are so on a much better Title and Prescription can never prejudice them I know it is a Maxime in Law Praetor cum injustè judicat jus dicit that a Judg though he judges unjustly his Judgment stands good in Law and accordingly must be obey'd from whence some might conclude That the most unjust Kings cannot be contradicted and that it is unlawful for any to oppose themselves to their Decisions But those who should make this Objection probably would not take notice of the Consequence of it It is for the Interest of the Society that the Judgments pronounced by the ordinary Judges should be valid though some of their Judgments may be unjust but no body ever believed that this Maxime authorizeth the Magistrate either Subaltern or Soveraign to tread under-feet the Laws and to make publick Profession to judg all things according to their fancy 2ly 'T is a constant truth That Kings could never justly touch the Peoples Rights they being commissionated neither by God nor Man to judg what be the Rights of the People and having no more right to deprive them thereof than a party at Law has right to deprive his party of the Right that justly belongs to him CHAP. XVII An Answer to the last Objection AFter all that hath been said I cannot suspect that any should make an Objection that has so little Appearance of any Probability as is that which is the 2d of those that remain to be examined by me some suppose their conceit to be of some weight who urge the Acts of Parliament under King Charles II as destructive of this form of the English Government The Words are these That it is not lawful on any Pretence whatsoever to take up Arms against the King c. Indeed it cannot be denied but that these Words seem to suppose that those who swear to them cannot believe it is lawful to take up Arms against the Kings of England howsoever they may behave themselves nor by any opposition to hinder the overturning of the Laws and Government We may well acknowledg that Power to be unbounded which it is not lawful to oppose by force of Arms now these Acts of Parliament declare that it is not lawful to resist the King wherefore the King of England must be supposed an unlimited and absolute Monarch and by Consequence we must conclude that the Government of England is wholly changed and destroyed so that whatsoever we have alledged in the foregoing Discourse can only be made use of as a History of what is past but not as a Rule or Precedent for what is to come This conceit is so unreasonable that it seems scarce worth the pains to stop at it however I shall endeavour in few Words to satisfy those who seem unwarily to be taken in the Snare which the Malice of a Popish Court had laid for them 1st They must know that the Fundamental Laws of any State are of the Nature of Contracts Pactions and Capitulations which according to the common opinion of Lawyers are irrevocable Buxtorf in Bull. aurea cap. 1. § 7. whence it follows That all Oaths that are taken against Capitulations of this nature may be Sins to those who take them but cannot oblige them as being unlawful Oaths 2ly They cannot suppose that the Parliaments of Charles II did ever think of repealing these Fundamental Laws without accusing the Members that composed them of having been prevaricators and betrayers of the Interest of their Country by changing the limited Monarchy into a true Tyranny 3ly They cannot do this Injury to these illustrious Assemblies without casting the same Blemish upon the Bishops in the House of Lords during those Sessions of Parliament and making them altogether odious either for their Stupidity or for their Malice for their Stupidity if imprudently they gave their consent to Laws made on purpose to change the Kingly Government into Tyranny or for their Malice if they wilfully betrayed the Interest of the State though they knew well enough what must be the end and aim of these Regulations I desire these Gentlemen to make some Reflection on this truth Is it possible they should have no Consideration at all either for the Reputation or Conscience of their Ancestors They have shewed themselves so jealous of a change in the form of the Government by making of a successive State an Elective one and yet they suppose that the Parliament and the Bishops that sat in them have in sport changed the form of the Government by making it of a limited Royalty to become an absolute and unbounded Monarchy 4ly They must needs accuse these Parliaments of a strange Folly for these Gentlemen suppose that the Disorders which then ruled in the State obliged the Parliament to restore Charles II. They suppose that the Anarchy and various Sects which had the upper hand before his recall making wise Men not without cause to apprehend the Ruine of the Protestant Religion as well as the Overthrow of the State they thought themselves obliged to employ all their strength for restoring of Charles II. as supposing him a good Protestant and a King whom his Adversities had made wise in hopes of being governed by him according to the ancient Laws of the Kingdom And yet after this they will perswade us That the Parliament thought it fit and reasonable to destroy the Nature of the Royalty in England by making it Mistress of the Laws and authorizing it to destroy the Protestant Religion whenever the Popish Faction should think fit to have it done 5ly They must accuse these Parliaments of the commission of a horrid piece of Imprudence in attempting upon the Liberty of the People For if this were indeed their Design were they not obliged at the same time to repeal all the other Laws which restrain the Power of the Kings of England For we know that
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
trouble a Society thought good to divide the command amongst many Those who took notice that this equality produced dissensions amongst many Governors placed the power in one person only Those that were aware that a single person might overturn the Laws and set up his will as the only rule of his conduct found it necessary to preserve to the People their share in the Government In a word every Nation chose that way they thought most sure and proper to obtain the true ends of an happy Government in order to secure and preserve the Society What I have said in general concerning the original of Soveraignty or Magistracy amongst Men shews that it cannot be denied but that the institution thereof is Divine though God did not think fit to determine it to any certain form of Magistracy whether of Monarchy Aristocrasie or Democrasie but left it to the Peoples free choice to pitch upon that form they should judge most convenient for them But to procure a farther light to this matter we must consider the Judgment of Philosophers and Divines concerning this point CHAP. II. The different Opinions of Philosophers and Divines concerning this matter IT may be said That there are three Opinions concerning the original of Soveraign Magistracy Cicero in his Books of the Commonwealth was of Opinion as appears from the definition he sets down That Governments were at first formed by an effect of pure necessity St. August de civit D. which forced the weaker to seek for aid and succour from those that were stronger to secure themselves from oppression This was also the Opinion of the famous Archbishop of Burgos in the Council of Basil Fascic Fol. 7. The Body of Christian Divines maintains that the Authority of the Sword was instituted by God as may be seen Gen. 9. And it appears that whereas before the Deluge the Patriarchs were the only Masters of their Families which gave occasion to abundance of Crimes Justice not being executed with vigour enough to put a stop to the course of exorbitances as long as it was in the hands of a common Father God was pleased to enact a Law whereby the Sword should no longer be bound up to each head of a Family but committed to one who should be particularly charged therewith by the common consent of the Society The Third Opinion is that of some new Divines and other flatterers of the unbridled power of Princes who maintain that Kings derive their Authority immediately from God and not mediately from the consent of the People Thus Peter de Marca declares himself on this point de concord lib. 2. c. 2. v. 1 2 3. following therein the sentiments of Victoria and Duval the one a Spaniard and the other a Frenchman We need not wonder if Cicero was mistaken in the deciding of this matter as being destitute of that light which Moses furnisheth Divines with He determines this point only as a natural Philosopher However we must observe that Cicero himself and the most wise amongst the Heathens have sufficiently given to understand that they conceived Magistracy without which it is impossible for a Society to subsist to be of Divine Original as well as all other good and profitable institutions for the benefit of Mankind But not to insist upon this forasmuch as all Divines agree that the original of Magistracy is from God our business only is to enquire which is the truer Opinion theirs who acknowledging the Divine institution of Magistracy maintain that this Authority is communicated to the Powers and Magistrates by the People or of those who pretend that God immediately communicates the same to the Magistrates that are invested therewith In order to the resolving of which before we pass any further we are to observe 1st That the Body of Divines who defend the former of these Opinions do agree That the Authority of Magistrates is not to be accounted less Divine because it does not immediately come down from God. They own these Two things 1st That God has ordered there should be Sovereign Magistrates to regulate and govern Societies 2ly That God having divested private Persons of the right of doing themselves Justice in case of Offences given them has ordained that the Magistrates should have the Sword put into their Hands by Capital and other Punishments to stop the violence of those who disturb the Peace of the Society and violate the Rules of Justice And in this respect they acknowledge Magistracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a divine Settlement and Institution Secondly We are to observe That when on the other hand they maintain That the Power of the Magistrates is conferred by consent of the People in which respect they pretend That St. Peter calls them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that doth not in the least diminish the Authority of this Divine Institution of Magistrates which they refer solely and immediately to God. Thirdly That whatsoever Notion we may frame of the Power of Magistrates whether we suppose it conferr'd upon them immediately by God as M. de Marca pretends or whether it be only mediately derived to them from God by the intervening consent of the People the thing is still the same because it is evident that this Power is not communicated to them but for the subsistence of the Society the Preservation whereof is the natural End of Government and Sovereignty Fourthly That they do not oppose this Notion of the immediate Collation of the Sovereign Power by God save only that they might express themselves more exactly and distinguish the ordinary Governments of the World from the Kingdom of Israel For the same Divines generally own That the Institution of the Royal Power in Israel was an immediate Act of God but withal maintain That the same cannot be said of other Sovereigns This laid down I say That nothing can be imagined more vain than the second of these Opinions and it is enough only to understand the terms which those Divines make use of to express their Sentiment concerning the Original of Sovereign Magistrates in every State and to consider the Proofs they alledge to evidence the falseness of it which Opinion accordingly I shall refute in the following Third Chapter CHAP. III. That Sovereigns do not receive their Power immediately from God. I Say then That it is false That Sovereigns receive their Power immediately from God. This is a Truth may be easily made out Indeed though the Power of Magistrates of what sort soever they be be of Divine Institution which of all the present Sovereign Powers whether Monarchs Commonwealths or any other Form of State was instituted immediately by God And who are the Persons invested therewith whom God has immediately called to that sort of Power All States are formed either by Conquest or by Consent of the People which intervenes in the Election at the first Founding of a State and which is renewed in every subsequent Election of Princes or which is perpetuated in successive Kingdoms
Was there any thing like to this in the advancement of David to the Royal Dignity Secondly Is it not visible that in order to an immediate Establishment from God there is required an express Revelation such as may be equivalent at least to a publick declaration of his Will in favour of him whom he will set on the Throne Thus things were carried with respect both to Saul and David and who will affirm there is any King now in the World that has attain'd the Regal Power after this manner If there be any let them acquaint us with his Name and the manner of God's revealing himself to the People to make them know that he immediately made choice of such a Person to supply that Place Thirdly Who sees not that the whole Discourse of these Divines is nothing but a continual Equivocation An Office is instituted immediately by God wherefore all that are called by ordinary ways and methods are immediately established in it by God. I had as lief they should tell me That because Marriage derives its first institution and beginning from God in the Person of Adam and Eve whom God joyned to Adam That therefore all Marriages are made immediately by God and that he is the immediate Author of them The one is every whit as reasonable as the other and in the mean time the second is absolutely false The Author of Ecclesiasticus saith Chap. 7.16 That the Art of Tilling the Ground was created by God Doth it follow from thence that God hath immediately setled such and such a one in the Calling of Husbandry Fourthly If all Sovereign Magistrates desire their Institution immediately from God how is it that we find so great a diversity in the Form of these Sovereign Governments In some States we find Kings in others Aristocrasies or Democrasies Doth not this variety make it evident that though God indeed have instituted Magistracy in general yet he hath left it to the People to determin the Form of it according to their Need their Inclinations and the Circumstances wherein they find themselves Fifthly Doth it not most evidently appear That if the Person were immediately instituted by God it would be great folly for any Society to trouble themselves about enacting Laws for a Free Election at every Change or to establish it by way of Succession in Monarchies If God establisheth all Sovereign Magistrates immediately to what purpose are all those Rules and Limitations which by their variety afford us a sufficient demonstration that this Institution is not an immediate effect of the Deity The Philosophers were fully of this Opinion as we may see in the Books of Aristotle's Policy where he makes out That the cause of the various sorts of Governments that are in the World is nothing else but the different Judgments of the People concerning the several sorts and manners of Government Some of which have chosen one Form to avoid the Inconveniencies they foresaw and apprehended from another and others again being induced to embrace that Form by the advantages they discerned in it rather than another This is a matter we ought to mind very carefully that we may not put a ridiculous sense upon some Expressions of the Antients when they speak of Magistracy as founded in the Law of Nature The Lawyers agree with the Philosophers in this Point Vlpian and Justinian both of them tell us That the People of Rome bestowed upon the Emperor Augustus by the Royal Law all the Right and Empire by which they were subjected unto that Emperor lib. 1. ff de Constit Princip Theophilus explains what properly a Prince is in these terms A Prince saith he is a Person who has received from the People the Power of Commanding and Ruling over them § 6. de Jure Natur. Gent. The Canonists of the Church of Rome are no less express in this Matter than the Philosophers and Lawyers Cardinal Bertrandi lays it down for his Foundation in his Treatise of the Civil and Ecclesiastical Power Bibliotheca Patrum which was copied by an English Monk and is found among the Manuscripts The Divines of that Communion make a Principle of it as appears by the Discourse of the Archbishop of Burgos which I have before cited And Soto saith lib. 4. de Just Jure Regalem potestatem Populi naturali lumine erexerunt That the People by the Light of Nature established Kingly Power M. de Marca owns That the Canonists of his School do not favour his Opinion but withal maintains That they have fallen upon the Opinion contrary to his that they might make a greater difference between the Civil and Ecclesiastical Power than there is indeed and to depress the Civil Power below the Ecclesiastical He might also have alledged against the Divines of his School That in this Question they relied too much on the Judgment of Aristotle who was their St. Paul until the times of the Reformation However that which M. de Marca declares as his Judgment concerning this Matter is too generally spoken For we see Marsilius of Padoua following the same Principles in his Defensorium Pacis though he undertook the Defence of the Emperor Lewis of Bavaria against the Enterprises of the Pope but however he pretends That the Scripture and Antiquity furnish us with quite other Notions about this Matter which we shall next make it our business to enquire into CHAP. IV. An Examination of the Arguments which are alledged for the Proof of this Opinion HE alledges only two places of Scripture the one is that of St. Paul Rom. 13. and the other is taken from the Sixth Chapter of the Wisdom of Solomon which is an Apocryphal Book but neither the one nor the other proves the thing he pretends It appears by the former of these Texts That the Apostle endeavours to oppose the Opinion of those among the Jews who pretended That because the Monarchies or States of the Heathens had not an immediate Institution from God as that of Israel to which God had in a particular manner subjected the Jews that therefore they were not obliged to submit themselves to the Authority of Heathen Magistrates Wherefore he points them from that immediate Institution made in favour of the Kings of Judea to that common and more ancient Institution of Magistracy among the Posterity of Noah which Moses sets down Gen. 9. as being sufficient to make the Authority of Magistrates respected whatsoever Nation or Religion they might be of whether they deriv'd their Power from the Consent of the People or whether they had obtained it by Robbing the lawful Sovereigns of their Authority as the Romans had done with respect to the Kings of Judea In a word the Apostle in that place intends nothing else but to authorize the Maxim of the Essenians as it is related by Josephus lib. 2. de Bello Jud. cap. 12. Fidem omnibus servare maxime verò principibus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be faithful and true to all Men
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
and afterwards he is deprived of his Government and his Son placed on his Throne It cannot be alledged by these Gentlemen that this happened to him because of his Leprosie because they suppose that a Prince cannot be resisted whatever his behaviour may be or devested of the right of Governing for any reason whatsoever After all Let us consider how severely God punished Israel for the sin of Saul in breaking the Troth plighted to the Gibeonites and we shall find they were enveloped in the punishment of his sin because they had not opposed themselves against Saul's breach of Faith. And we make the same Reflection about the punishment God inflicted on the People for their consenting to David's numbring of them which God had forbid And why so but because they did not oppose themselves against this enterprize of David as they ought to have done We do not fiâ—d the People engaged in the punishment of David's Adultery with Bathsheba because indeed the People had no share in that sin We see the inhabitants of Libna rejecting Joram because he had forsaken the Lord his God 2 Chron. 21.10 Lastly I desire that those who talk so much of Passive Obedience would be pleased attentively to consider the behaviour of the Maccabees when they shut the Gates of Modin against the Envoys of Antiochus and afterwards took up Arms for the defence of their Liberty and Religion 1 Mac. 2. As also that of Matthias who shut the Gates of Modin in exhorting his Children to continue in their resistance and does the same at the hour of his Death without believing that he was guilty of any sin in taking up Arms and his Children follow his Exhortations with an extraordinary Courage and Piety I own that the Books which have preserved this History are not Canonical no more than Josephus who has followed them But I must observe First That it sufficiently appears what the Opinion of the Jewish Church was in this point who still retains an Abridgment of these Books in her Books of Prayers highly praising the Maccabees for their Virtue and Piety Secondly That the Christian Church has allowed the publick reading of them notwithstanding they were not Canonical and that with great esteem too which would have been extravagant and impious in case the resistance of the Maccabees had been a true Rebellion Thirdly I have still more to say viz. That the Apostle St. Paul in the Eleventh of the Hebrews makes an Encomium of the Maccabees and approves the War they undertook This is that which is acknowledged by the learned Thorndike in his Right of the Church Page 306. by St. Chrysostome Hom. 27. in Epist ad Hebr. and by Haymon Bishop of Halbarstad as also by Menochius and Estius in their Commentaries Fourthly That Lucifer de Cagliari in his Book De non parcendo in Deum delinquentibus a Book approved by St Athanasius who calls this Lucifer a New Elias Page 1068. openly sets down not only that he believed it was lawful to resist Kings under the Old Testament but also to put them to Death in case of Idolatry which he maintains the Arrians were guilty of Si veteris Testamenti temporibus vixisset Constantius Imperator gladio potuisset extingui defuncti ossa igne absumpta fuissent If Constantius the Emperour had lived in the times of the Old Testament he might have been killed with the Sword or at least his Bones after his Death would have been burnt CHAP. VIII Whether the States can deprive Sovereigns of their Authority when they abuse it THEY who maintain it is not in the Power of the Subject justly to resist the Authority that is once established though it abuse the Power committed to it believe also consequently That it is not lawful for a State to reject their Sovereign nor to deprive him of his Authority though he make use of it to overthrow the Government but forasmuch as the former Opinion is wholly contrary to all good Sense and Justice the lesser cannot be less so I own it is unjust to deprive a Sovereign of the Power he enjoys as long as he useth it lawfully and in this regard it is we must not attempt any thing against the Authority of Kings or other Sovereign Magistrates I acknowledge also that the People may not rise up against their Superiors for the first Fault they commit in matter of Government Kings being no more infallible than other Men we cannot with justice expect from them that they should commit no faults at all in their managing of the Government It is also evident enough that the People must not oppose themselves against every thing that seems to have some air of severity or hard usage in the Government as St. Paul also orders Servants to suffer patiently the hard usage of a too severe Master Good sense alone is sufficient to inform People That they must not expose the publick Tranquillity to danger for some severity or for some interest which respects only some particular persons And indeed with this respect we may say that private persons are obliged to sacrifice their particular interest to the publick Good and Peace But there is a vast difference between a King that governs justly or that falls into some error which he is willing to retract and amend upon a remonstrance from his Subjects and a Tyrant who overturns the Laws of the State and the end of the Government designedly and of deliberate purpose It would be a strange delusion for us to attribute to a Tyrant the Priviledges of a King or to suppose as otherwise we must That there is no means to distinguish them both which Extreams are equally ridiculous For First All wise Men that ever were have declared That it is easie to know the difference between a King and a Tyrant Aristotle gives us an exact Idea of a Tyrant Polit. lib. 4. cap. 10. Pol. 6. Hist lib. 5. gives us the Character of a Tyrant in opposition to that of a King. Synesius also gives us a very lively Portraiture of one de Reigno Isidorus gives us this description of Tyrants Origin lib. 9. cap. 3. Jam postea in usum accidit Tyrannos vocari pessimos atque improbos Reges luxuriosae Dominationis cupiditatem crudelissimam Dominationem in Populis exercentes Now it is become customary to call bad and wicked Kings Tyrants who are ambitious of Arbitrary Power and oppress their Subjects by a most cruel Dominion A King saith the Scholiast of Aristophanes differs from a Tyrant in that a King possesseth his Kingdom certis sumens conditionibus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 receiving it on certain conditions whereas a Tyrant enters upon it by force and violence Bartholus among the Lawyers gives us a Description of a Tyrant and the Characters wherewith he sets him forth are infinitely different from those that ought to be in every King. Wherefore we cannot imagin that the difference between a King and a Tyrant should be none
at all or imperceptible Secondly Heathens as well as Christians Papists as well as Protestants equally agree That it is lawful for a State to rid themselves of a Tyrant by wholly casting him off This is a constant Maxim among Heathens whereof we may see the Proofs in Thucydides lib. in Pausanias in Attic. in Polyb. lib 2. in Cicero lib. 3. de Offic. Orat. pro Milone lib. 2. de Invent. in Seneca lib. 2. de Benefic cap. 20. in Seneca the Tragedian in Hercule Furente in Pliny lib. 3â— cap. 4. in Valerius Maximus lib. 2. cap. 10. in Plutarch in vita B uti and in Themistius Orat. 14. The Jews have reduced this Maxim into practice as we may see in the History of the Maccabees who took up Arms against the Authority of Antiochus Epiphanes As for Christians we find this Sentiment confirmed by Lucifer de Cagliari and approved by St. Athanasius We find that St. Austin * August libro contra Adim c. 17. Nec tamen hoc secerunt justi homines nisi authoritate divina ne quis arbitretur passim sibi esse permissum necare quem velit aut judicio persequi aut poenis quihussibet afficere Aliquando autem aperte ponitur in scripturis ipsa divina authoritas aliquando autem occultatur ut manifestis lector instruatur exerceâ—tur obscuris Certè inimicum persecutorem suum nimis ingratum nimis infestum Saul Regem accepit David in potestatem ut ei faceret quod vellet elegit parere potius quam occidere Non enim erat jussus occidere sed neque prohibitus imo etiam divinitus audierat se impune facere quicquid vellet inimico tamen tantam potestatem ad mansuetudinem contulit Dicatur mihi quem timuit cum interficere noluit Nec hominem possumus dicere timuisse quem acceperat in potestatem nec Deum qui dederat Vbi ergo nec difficultas fuit occidendi nec timor dilectio profuit inimico Ecce David ille bellatur implevit praeceptum Christi quod accepimus ut diligamus inimicos maintains against Adimant cap 17. That though David did not kill Saul yet he had right to do it Brontius agrees with this Judgment of St. Austin And Sozomenus lib. 6. proves That if the Roman Soldier who was suspected to have killed Julian the Apostate had done it indeed that he had done it justly and of right We find the same thing asserted by Englishmen as by Joannes Sarisbur Polycrat de nug curial lib. 7. cap. 17 18 19 by Matthew Puris ad An. 1233 in the business of the Bishop of Winchester The Church of Rome has always been of this Opinion before the Reformation as appears by the Judgement of Thomas Aquinas 22. qu. 24. art 2. of Aureolus and all the Schoolmen In a word we can affirm That this was received as an indubitable Opinion in the Council of Basil who laid it down as a Principle whereupon they grounded their right of Deposing the Pope This has always been the Opinion of Popish Lawyers and Canonists as we may see in L. decerminus de Sacrosanct Eccles in Bartholus in tractatu de Tyrannia in Paris de Puteo in Syndic where he puts the Question Whether it be lawful to kill a King that is a Tyrant In Andreas Iserus institut quae sint Regalia In Mar. Laudun in tractatu de Princip § 3. in Angelus de Clavasio in Summa voce Seditio Quaest ultima in St. Antonin in summa 2. par tit 4. c. 8. § 1. Neither do the Protestants differ from them in this point as is evident from the Writings of Zuinglius Luther Calvin Paraeus Bilson Abbot c. Conringius lays it down as an indubitable truth ad Lampadium de Imp. Rom. 119. And the Papists since the Reformation are of the same judgement as will appear if we consult Gregor de Valentia Tit. 3. disp 5. qu. 6. Tolet. in summa l. 5. c. 8. Mariana de Rege Lib. 1. Cap. 3. 6. Lessius de Jure Justitia Lib. 2. cap. 9. dub 4. Molina tr 3. disp 6. de Justitia jure Eman. sa in Aphor. verbo Tyrannus Suarez in defens fidei lib. 6. cap. 4. Neither let any one imagine That this is only a Doctrine of the Jesuites We may see the contrary in those who have written concerning the Deposition of Henry the Third and who have maintained the Justice of that Deposition And we may affirm That among so many French Authors who have writ against Baronius and Bellarmine who attribute the Deposing of Childeric to Pope Zachary and the placing Pepin on the Throne in his stead there is scarce any to be found who whilest they dispute the Pope's Right to Depose Kings do not acknowledge That it is a Right inherent in the States of the Kingdom And indeed to weigh the thing in it self it is evident That when a Prince is become the Enemy of his People and endeavours to destroy them he thereby loseth the Right of Governing them If we take the Sword out of the hand of a Madman that he may do no hurt with it who doubts but we have the same right to take away that Power from a Prince which he makes use of as if he were a Madman The History of Portugal fully sets forth to us the Judgement of that Nation with respect to King Alphonsus III. This Prince minding nothing but hunting his Council represented to him That if he did not apply himself to the business of State they would Depose him and place another on the Thone What would not they have said think we had they seen him Murthering his Subjects in cold Blood as their last King whom they banished because of a like madness I acknowledge That the Commonwealth has put its rights into the hands of the Prince by which she seems to have deprived her self of that Power But it is a strange and uncouth imagination to suppose that a State should deprive it self of the right of resisting injustice and violence which is a right that Nature communicates to every Creature together with its Being Besides it is certain That if a State be limited by Laws and that the People are the Authors of them so that they share and exercise the Sovereign Power in this case they are naturally supposed to possess and hold the Authority which is necessary to preserves the Right that belongs to them Let Men Philosophise as long as they please they shall never be able to make out either that a Prince can pretend to a Power of destroying the Society without any danger of being called to an account for it or that a People can ever be esteemed to have granted him a Right tending to their own Ruine and Destruction But some may say That the Title of a King ought to secure a Tyrant against any resistance he might be liable to from his Subjects even as the name of a Father
Psal 18.50 and his Anointed Ones 2 Sam. 22.51 which Title is given to Saul as well as David and Josiah all those Expressions respect God's Establishment of Kings after that the People had earnestly and obstinately demanded to be govern'd by their Ministry As to the second Head which respects the Laws that God prescribes to the Jews to regulate the Choice and the Conduct of their future Kings set down by Moses in Deut. 17. v. 14 15 16 17 18 19 20. We may therein observe these two things 1st That God supposeth that forasmuch as they would some time after set up a King over them they would also suppose it lawful for them to prescribe to the Royal Power the Form and Rules which their Neighbour-Nations amongst themselves had set to that Form of Government 2ly That God leaving to the People the natural Right of limiting the Royalty amongst themselves according to their own liking and fancy or for giving it more scope and liberty as their Neighbours had done only thought good to prescribe to them these Rules and Limitations 1. God limits their choice as to the Person of a King that he must be one chosen by himself 2. They might not choose a Stranger 3. He do's not allow the King to multiply Horses 4. Nor to lead back the People to Egypt 5. Nor to have great store of Wives 6. Nor to heap up vast Riches 7. He enjoyns him to study the Law of God and have it always with him to observe and keep it And 8. To do Justice equally to all without distinction These are the Laws which Josephus hath compendiously set down Lib. 4. cap. 8. p. 123 after Philo in his Treatise concerning the Creation of the Prince Now it is natural and obvious to conclude from all this 1. That God doth not in that place proscribe a plat-form of a Monarchy for the Government of the Jews but only supposeth that the Jews being desirous of Monarchy would be apt to borrow the Model of it from the Neighbour-Kingdoms 2. That in prescribing some Rules concerning the choice and behaviour of a King he endeavors to prevent the State of Israel from falling into the Inconveniences into which their Neighbour-Nations had cast themselves by allowing their Kings or at least suffering them to take too great a Power and Authority whether in Matters of State or Religion 3. That he supposeth that the People ought to oblige the King to observe these Laws of God and that they might oppose themselves to Princes who at any time should have the boldness to violate them as Josephus expresseth himself in the place quoted before 4. That he allows the People of Israel the same Rights to oppose themselves against the unjust Enterprizes of their Princes turn'd Tyrants which other Nations were possest of against their Princes when they abused their Authority the Reason why People desire a King being that he may Judg and Govern them not that he should Destroy them by playing the Tyrant It is of importance to make these Observations because it appears that in all this God did so far accommodate himself to the Design of the Jews that he never pretended to carry his Laws any farther for we see he does not speak to them concerning the Manner how they ought to behave themselves when they should be attak'd or subjugated by Foreign Powers as supposing that common sense would be sufficient to instruct them that in those Cases they were to follow the Example of other Nations who bore patiently the Yoke of the Prince that conquer'd them These things thus laid down it clearly appears that God set Bounds to the Royal Power long before he established any King in Israel and that the Jews could not but believe that Kings had another Law set them than that of their own Wills. Indeed we see 1st That this Institution did not at all derogate from the Rights of the People to choose their own Kings under certain Conditions and by a form of Treaty Compact or Capitulation We find that the Election of Jephtha Judg. 11.10 clearly supposeth this as likewise afterward the same may be seen in the Election of Saul David and Solomon 1 Chron. 28.8 and 1 Chron. 29.24 We find that Ishbosheth was brought into the Camp by Abner only to show him to the People that they might consent to the choice of him 2 Kings 2.9 2ly Though this Institution seem to be immediate yet did it not at all hinder or prejudg the Peoples Right of making Treaties and Capitulations with their Prince and consequently of rejecting them when at any time they should invade or violate the said Rights and Capitulations And of this we have an illustrious Example in the Sons of Samuel whose ill administration gave the Jews an occasion to demand a King by which means Samuel himself was as we may say obliged to renounce his Power as Judg which notwithstanding he had received immediately from God himself 3ly How immediate soever the Kings of Juda may have been established by God yet they never had the Character of an Arbitrary and unbounded Power as is suppos'd by those who would infer that because Monarchy was instituted by God the Power of him that is invested with it cannot be justly limited neither can for any Misdemeanour whatsoever be deposed To make it more sensible and evident we need only take notice of what the Scripture tells us in several places 1st They could not alienate the Lands and Countries that belonged to the State to any Strangers neither could they take them from their Subjects by way of Truck or Exchange as appears from that History of Naboth 1 Kings 21. 2ly They could not invade the Sacerdotal Functions as is apparent from the History of Vzzia who was boldly and couragiously resisted by the High Priest Azaria and his Colleagues 2 Chron. 26.18 3. They could not constrain the Levites to go to War that Tribe being excepted from all the rest who were subject to that Service as Abulensis owns it 1 Kings 9.22 4. They could impose no Tributes but in case of Necessity and with the consent of the People and those who have undertaken to do otherwise have been censured therefore by the Prophet Mic. 3.1 Not to mention that the excessive Tributes Solomon imposed on the People were the cause of the ten Tribes shaking off Rehoboam's Yoke 1 Kings 12.3 4ly I say that though God had seemed to fix the Royal Dignity to one Family to wit that of David yet was it not so bound up that the Succession must always pass from the Father to the eldest Son and not to the younger Thus we see that Solomon was preferred to Adonijah by David by the consent of the People Thus Rehoboam designed to settle the Succession upon Abijah the Son of Maachah as thinking him most fit for Government though he had elder Brothers 2 Chron. 11.22 Jehoshaphat on the contrary preferred Jehoram to the Succession before all his other Sons
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
to the Society Now that Samuel had not any the least Design to appropriate an unbounded Power to the Kings of Israel 1 Sam. 8. by these Words hoc est jus Regis appears 1st Because the word Mispath ordinarily signifies consuetudo agendi ratio a custom manner or way of acting in case we do not explain this word in the same sense it carries in the 2d chap. of the same Book ver 13. we shall make this passage to contradict Deut. 17. which cannot be otherwise avoided This is acknowledged by Learned Men who therein agree with Schickardus de jure Hebraeorum Cap. 2. Thess 7. p. 65. 2ly The Fathers are of the same opinion see what Beda saith in his Exposition upon Samuel Lib. 2. Hoc erit jus Regis qui imperaturus est vobis Non qualis esse debeat moderatus justus Imperator exposuit cujus in plerisque Scripturae sacrae locis maxime in Deuteronomio perfectio docetur sed potius Rector improbus qui austeritate subjectos sit oppressurus intimat ut per hoc populum a pertinaci ejus petitione revocet This will be the Behaviour of the King that shall rule over you He doth not sâ—t forth the Qualifications of a moderate and just Ruler who is fully represented to us in many places of Scripture but especially in Deuteronomy but rather those of a wicked Governour who by his Cruelty should oppress his Subjects that thereby he might deter them â—â—om their obstinate demanding of him 3. The Divines that did not understand Hebrew yet by good sense and Reason were led to the true meaning of this word Gerson lays it down as a certain Truth that this word does not express a lawful Right but an unjust Power Dictio haec Jus non significat semper Jurisdictionem sive Justitiam sed significat interdum Potestatem quae non est justa c. sicut haec dictio Rex quandoque sumitur pro Tyranno Benedictio pro maledictione Lex injustitiae pro injustitiae execratione Deus pro Diabolo This word Jus doth not always signifie Right or Justice but sometimes an unjust Power c. even as also the word King is sometimes taken for a Tyrant and Blessing for Cursing and the law of unrighteousness for the execrable unrighteousness and God for the Devil Opusc contr Adulator Princip in Consid 8. The same also was the Judgment of Claudius Espenseus a famous Divine of the Romish Church who told Henry II of France Your Majesty ought to abhor that Right nothing less than Regal and nothing more than Tyrannical which God by the mouth of Samuel did not allow the King but wherewith he threatned the People saying Hoc erit Jus Regis this will be the Right of a King. Treatise of the Institution of a Prince Ch. 8. 4. It appears evidently that Samuel represents to us the picture of a Tyrant in opposition to the description of a King God had set down in the 17 chap. of Deuteronomy 5. The Jews of old have always owned as much as appears from Josephus Lib. 4. cap. 8. 6. It appears that those who conceive the matter otherwise suppose a greater Power and Authority in Princes than they ascribe to God himself who never commands any Thing but what is reasonable and just as St. Paul judged who calls all the Duty we owe to God a Reasonable Service Rom. 12. 7. If any one will take the pains to read the Characters Solomon has given of a King in divers places of the Proverbs he shall find that nothing can be more opposite to this Idea of an unbounded Power which some would gather from these words of Samuel 8. The Kings of Israel never enjoyed any such Power or ever pretended to it the History of Naboth whose Vineyard King Ahab greatly desired is a proof hereof beyond all exception 1. Kings ch 21. Jezebel would never have been put to the trouble to employ false Witnesses to destroy Naboth as a Blasphemer if she had had in Israel some of those Divines Flatterers of the Grandeur of Princes who abuse the Holy Scripture to authorize all the injustice and oppression they are guilty of I am sure it is impossible to read without astonishment the extravagance of some Divines who conceive that the words of Samuel contain an Explication of the Rights of Royalty and that Samuel wrote them in a Book as being the publick and incontestable Rights of Monarchy Withal let us make this Reflection which is very natural The Jews here complain of the injustice and violence of Samuel's Sons who made a mock of the Laws whereupon 't is supposed that they to remedy this mischief require of Samuel to set a King over them that might govern them according to his own Fancy and treat them like Slaves Is there any thing of sense in the Supposition We suppose that the King has already a Rule prescrib'd him in the 17 of Deuteronomy and at the same Time we maintain that Samuel a Prophet has in a publick Record set down the Description of a Tyrant to whom God gives Right to violate all the Rules he had prescribed in his Law. Sure it is that neither the Antient nor Modern Jews did ever conceive any such thing If we read Josephus where he sets down an abridgment of the 17 of Deuteronomy we shall find that he expresly asserts that it was not only the Right but also the Duty of the People to oppose themselves against their Designs in case they violate the Rules of the Royalty God had prescribed them Let us consider the carriage of the Maccabees against Antiochus and we shall find that they did not believe it unlawful to resist Tyrants and to oppose themselves to their destructive Government Let any one read the 14 of the first Book of the Maccabees and he will see whether the Rights of the King which at that Time were engraven on Brass had any resemblance with what we find in the 8th chap. of Samuel This is a sure way to judge whether the Jews ever pretended that God by these words of Samuel had granted to Kings an unlimited Power They to this day acknowledg that the Scripture does not only prescribe Moral Laws which their Kings could not violate but also positive Laws to which they were obnoxious and which they could not transgress without submitting themselves to the same punishments with the rest of their Subjects This is the common opinion of the Jews as we may see in Maimonides de Regibus Cap. 3. Sect. 4. and in the treatise of the Sanhedrim cap. 19. num 166 167 168. which Doctrine he borrowed from the Talmud cap. Cohen Gadol and from Siphri upon the Parasche Schophetim 2ly They hold that if the King did change the form of Government into Tyranny the People had Right to reject him The History of Rehoboam rejected by the ten Tribes is a proof hereof beyond exception 3ly They hold that the People suppos'd
nor unknown and upon occasion of which the States of the Empire have had an opportunity to declare make out their Rights and Pretensions One of the first Examples we find respecting this Matter is the Deposition of Lewis the Good in the Year 833. The Acts whereof we may see in Baronius Goldast du Chesne and le Comte Whereupon we may make these Reflections 1. That the Thing was done with the Consent of the Bishops and of all the Nobility 2. That the Estates above all accuse him for having broke his Coronation-Oath 3. That though this Lewis was afterwards restored to the Throne of the Empire yet those that restored him never contested the Power the State had to reject a Prince who overturn'd the Rules of Government but supposed only that he had not been duly convinced of the Crimes laid to his charge We have another Example in the Deposition of Henry IV. The Archbishops Bishops Dukes and Earls declare that they had not sworn to him till after he had engaged himself by his Oath to them to observe the Laws and the Capitulations of the Empire so that having now violated them they were set free from the Oath they had sworn to him and that they considered him as an Enemy against whom they would wage war to their last breath Lambert Schafnaburg One of the last Instances we find in the deposing of the Emperor Wenceslaus who was deposed by the Electors of the Empire in the Year 1400 after that he had been twice taken Prisoner and had been exhorted by the State to amend and take up from his irregular Actings Aventin lib. 7. Annalium Cuspinian in Vita Venceslai We may see the most part of these Articles and many more solidly confirmed in the Book of Carpsovius de Lege Regia Imperatorum Germaniae and in the Imperial Capitulations and other Laws which he has caused to be printed at the End of his Treatise CHAP. XIII That the Power of the Kings of Poland is Limited WE find the same Limitation in other States whether they be Successive or Elective I shall content my self to alledge only one Example concerning the Kingdoms that at present are Elective and that shall be of the Kingdom of Poland Poland from the Relation of Cromer gives us an illustrious Example of the Wisdom of Northern People in bounding the Power of their Princes After that the Family of Lech the first Founder of that Kingdom was extinct that State changed the Royal Government into that of XII Waywods otherwise called Palatines These Palatines abusing their Authority they re-established the Regal Government in favor of Cracus whose second Son was expell'd by the Polanders for killing his Elder Brother They afterwards chose the Daughter of Cracus for their Queen who 't is said having drowned her self to avoid Marriage the Polanders again established 12 Palatines as they had done before but afterwards suppressed them again because they found them insufficient to defend the Countrey and chose Premiel for their King. This is Lesko the 1 who lived about the year 750. It was not till the Year 965 that Miesco turn'd Christian and took upon him the Title of King of Poland which Title was confirmed by the Emperor Otho III to Bosletas his Successor His Successors having reigned until Lesko Surnamed the Black who was forced by Flight to quit the Kingdom because he was not able to resist the Tartars and died without Issue the Poles wearied with intestine Wars excited by the Ambition of their great Lords chose Premiel to be their King who being kill'd without leaving any Children behind him they made choice of Ladislaus who was afterwards desposed for Male-Administration by the States General Wenceslaus King of Bohemia who had been chosen in his stead dying in the Year 1305 Ladislaus was recall'd to the Government to whom Casimir his Son succeeded who in the Year 1370 designed for his Successor with consent of the States Lewis the Son of Charles King of Hungary by his Sister The Poles after the Death of Lewis chose Edwiga his Daughter upon condition that she should marry the Person whom the States should recommend to her for a Husband the Person recommended by them was Jagello Duke of Lithuania who had the name of Ladislaus given him by the Archbishop of Gnesna who anointed and Crowned after he had first baptized him He outliv'd Edwiga who died without Children and had for Successors the children of his fourth Wife who reached until Sigismund Augustus after whose Death the States chose in the Year 1573 Henry Duke of Anjou who after he had reigned four Months in Poland abandon'd the Kingdom to take possession of the Crown of France and was deprived of that of Poland by the States as may be seen from the Acts recorded by Historians This Vacancy occasion'd a Division in the States one part of them having chosen the Emperor Maximilian the Second and the other part Anne the Sister of Sigismund Augustus to whom they gave Stephen Battori Prince of Transylvania for her husband who Married the said Anne and was Crowned at Cracovia in 1576. After the Death of Stephen the States chose Sigismund Son of John III King of Sweden and of Katharine Daughter of Sigismund I. of that name King of Poland It is evident from this Abridgment 1st That the Poles always pretended to be the Masters that had right to give the Form to their State which seemed to them most comporting with the Good and Welfare of it 2ly That they took it for granted that they had Power to reject those Princes or Palatines whose Behaviour was contrary to the Publick Good for which they had raised them 3ly That they ever had an Eye to Succession so far as to bestow the Crown sometimes upon Daughters yet not thinking themselves bound to it but only so far as the good of the State did permit 4ly That they had regard to the appointing of a Successor when the States had first consented to it 5ly That the Flight or Desertion of their Kings has appear'd to them a sufficient Ground to proceed to a new Election in their stead and to reject them This is evident from the History of Lesko surnamed the Black and of Henry the III of France 6ly That the anointing and Crowning of their Kings was of no avail to dispense with their Oath in which they publickly declare That if they do not observe the Laws of the State the People are dispensed from their Oaths of Fealty they have sworn to them CHAP. XIV That the Monarchy of France is not an Absolute Empire but a Limited Royalty 'T IS not of to day only that some have imagined the Monarchy of France to be an unlimited Power and an Absolute Empire Bodinus was of that opinion before them but they that follow his sentiment understand nothing of that Constitution or if they do have a greater desire to flatter the unjust Pretensions of that Court than to maintain the
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
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
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the
acknowledg that to judg aright of Things the Proceedings of England with respect to James II. have been the most just and lawful that could be The Things I have made out in this Treatise are summarily contain'd in the following Articles 1. That the Constitution and Establishment of any Government is the Effect of the Original Consent of the People though the Authority of the Magistrates be a Thing established by God. 2. That this Establishment supposeth the Subsistence of the Laws which are the End of the Government in the Design of God for indeed Kingdoms without Justice are no better than great Robberies as St. Austin calls them De Civit. Dei Lib. 4. cap. 4. 3. That these Fundamental Laws for the Subsistence of the Society are a Bond which so strictly ties the Soveraigns that nothing is able to dispense with their Obligation to them 4. That when the Soveraigns do violate them they break the Ties whereby their Subjects are bound to their Lawful Authority 5. That the Subjects can never be deprived of their Right to hinder the Ruin of the Society and of the Laws for the conservation of which only they have put their Rights into the Hands of the Prince 6. That there was never any State that subsisted under other conditions than these 7. That England in particular and Scotland have always had this Right Now these Things supposed it is evident 1. That James II. has forfeited all his Rights to the Crown even before his Desertion 2. That the Lords and People justly took up Arms against him to oblige him by Force to reform the Disorders he had caused 3. That the States had Power without any regard had to Him to raise the King and Queen to the Throne 4. That the Subjects are more than enough freed from their Oath of Allegiance to King James 5. That they have Right and are under Obligation to take up Arms and oppose themselves against James II. and to maintain the Authority of the King and Queen 6. That those who oppose themselves to this are declared Enemies of the State and of our Religion and the Authors and Abettors of Tyranny and Popery 7. That those who pretend themselves scrupulous in these Points are the Cause of the Division and consequently of the Ruin of the State and Religion whereby they grievously sin against God and therefore are obliged in Conscience to repent and make amends for the Mischief their Division has caused The thing is very evident and forasmuch as it is of the highest importance for their Salvation I beg of them well to weigh and consider these following Articles and witness their Repentance in all these respects 1. Then they ought to repent for that they making profession to have so strong an Affection for James II. they have made him fall upon the Designs of changing the Government into a Despotical and Arbitrary Power and thus by their Maxims have advanced and precipitated his Ruin. They are the Men who have made him conceive the Design of establishing a Tyranny in England they have given birth to his hope of being able to compass it according to his Hearts desire and his Ruin proceeding from the opposition that was made against these his Designs 't is them he may thank for all the Miseries into which he is plunged and consequently they have great reason to repent for having precipitated his Ruin by their false and deceitful Foundation See what Gerson saith In opusc contr Adulat consid 10. Clericus ille Regem suum aut Principem amaret minimè qui perversas tales vellet dare doctrinas aut toto posse scientia illas non impediret quia non est modus certior quo Rex aut Princeps se perderet in corpore in anima totamque ejus damnationem quam habendo falsas tales opiniones eas opere exequendo Cur Quoniam Dominatio sua in Tyrannidem verteretur in infidelitatem That Clergy-man would be far from loving his King or Prince who should teach him such perverse and false Doctrines or that with all his Power and Skill should not oppose them because there is not a more sure way for a Prince to destroy himself Soul and Body and to procure his total Damnation than by entertaining such false Opinions and reducing them into practice Why so Because his Government by this means would be changed into Tyranny and Perfidiousness 2. They ought to repent for their having contributed so much towards the establishing of Tyranny not only because that would have destroyed the Publick Liberty but because his Design at the same time was to overthrow the Protestant Religion and substitute in the place of it the Idolatry Superstition and Tyranny of Popish Usurpation This was a thing they could not do without imitating the Conduct of the Popish Clergy who since the Popes have undertaken to tread under their Feet the Rules of the Gospel and of the Church have endeavoured to inspire Princes with an indifferency for their Oaths and contempt of the Laws which are a Safeguard and Security of the Civil Society 3. They must repent at least some of them for having obstinately endeavoured to hide and disguise the Conspiracies which were design'd for the Ruin of our Religion and Liberty 4. They must repent for having writ in favour of an Opinion contrary to the Judgment of the Ancient Reformers of England and for having traduc'd as Rebels the Protestant Churches beyond the Sea for their maintaining the Maxims which the first Reformers of England have Asserted and for which they have Writ in defence of their Protestant Brethren 5. They must repent for that by their Sermons and Writings they have insinuated to the People those Maxims which have put them upon betraying the Natural Rights of the Society and in the Sequel upon imprudently exposing themselves to betray the Interest of the Protestant Religion which they were obliged to deliver safe to their Posterity 6. They must repent for having by this means encouraged the Judges to tread underfoot the Authority of the Laws and to dispence with them as having taught them to look upon the Laws as the Concessions of Princes and Acts of their Will and by Consequence revocable at their good Pleasure 7. They must repent at least some of them for having mounted to Ecclesiastical Dignities by publickly appearing in the Lists for defence of these pernicious and tyrannical Maxims directly level'd at the Ruin and Overthrow of our Liberty and Religion 8. They must repent for that their Opinions at this Day are the Causes of the present Conspiracies Rebellions and Treasons against the Government by which God has been pleas'd so graciously to secure our Liberty and Religion from the inevitable Ruin wherewith they were threatned However we have cause to bless God that those who are guilty of these Sins are but inconsiderable in their Numbers And I ardently wish for them they may once seriously enter into themselves
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
to the utmost of his Power with them And the King shall give publick and free Liberty for any man to swear that will and shall never pohibit any to swear And all those of the Nation who will voluntarily of their own accord swear to the Five and twenty Barons to distress the King with them the King himself shall issue his Praecept Commanding them to swear as aforesaid Item If any of the said Five and Twenty Barons dye or go out of the Realm or be any other way hindred from performing these things the residue of the Five and twenty shall chuse another whom they think best in his place who shall be sworn as the rest are And in all matters referred to those Five and twenty Barons if they happen to be all present and differ amongst themselves or if any of them being thereto appointed will not or cannot come what the major part of them shall agree upon and enjoyn shall be valid as if all the Five and twenty had agreed in it And the said Five and twenty shall swear that they will faithfully observe and keep the Articles aforesaid and with all theit might cause them to be observed Moreover the King shall give them the Securities of the Archbishop and Bishops and Master Pandulphus that he will not obtain any thing from the Pope whereby any of these Articles of Agreement may be revoked or diminished And if any such thing be obtain'd that it be reputed void and of none effect nor shall ever be made use of THE GREAT CHARTER OF KING JOHN A True Copy from the Original French. JOHN by the Grace of God King of England to the Archbishops Bishops Abbots Earls Barons Justices Foresters Sheriffs Prevosts Ministers and all his Bayliffs and his Lieges Greeting Know ye that We by the Grace of God and for the saving of our Soul and the Souls of all our Ancestors and of our Heirs and for the Honour of God and the safety of Holy Church and for the amendment of our Government By the Advice of Our Honoured Fathers Stephen Archbishop of Canterbury Primate of All England and Cardinal of Rome Henry Archbishop of Dublin William Bishop of London Peter Bishop of Winchester Jocelin Bishop of Bath Hugh Bishop of Lincoln Walter Bishop of Worcester William Bishop of Chester Benedict Bishop of Rochester and Master Pandulph Sub-deacon of our Lord the Apostle and of our Friend and Brother Anner Master of the Order of Knights Templers in England And by the Advice of our Barons William Earl Marshal Earl of Pembroke William Earl of Salisbury William Earl of Warren William Earl of Arundel Alan of Galloway Constable of Scotland Warin Fitz-Gerard Peter Fitz-Herbert Hubert de Burgh Steward of Poictou Hugh Nevill Matthew Fitz-Herbert Thomas Basset Alan Basset Phillip d' Aubenie Robert de Ropelee John Marshall and John Fitz-Hugh and by the Advice of other our Lieges Have in the first place granted to God and confirmed by this our present Charter for us and for our Heirs for ever That the Churches of England shall be free and shall enjoy their Rights and Franchises entirely and fully And this our Purpose is that it be observed as may appear by our having granted of our meer and free Will that Elections should be free which is reputed to be a very great and very necessary Priviledgeâ— of the Churches of England before the difference arose betwixt Us and our Barons and by our having confirm'd the same by our Charter and by our having procur'd it moreover to be confirmed by our Lord the Apostle Innocent the third Which Priviledge We will maintain And our Will is that the same be faithfully maintain'd by our Heirs for ever We have also granted to all the Free-men of our Kingdom for us and our Heirs for ever all the Liberties hereafter mentioned to have and to hold to them and their Heirs of Us and our Heirs If any of our Earls our Barons or others that hold of us in Chief by Knight-Service die and at the time of his death his Heir be of full age and Relief be due he shall have his Inheritance by the ancient Relief to wit the Heir or Heirs of an Earl for an entire Earldom C pounds the Heir or Heirs of a Baron for an entire Barony C Marks the Heir or Heirs of a Knight for a whole Knights Fee C Shillings at most and where less is due less shall be paid according to the ancient Customs of the several Tenures If the Heirs of any such be within Age and in Ward they shall have their Inheritance when they come of Age without Relief and without Fine The Guardians of the Land of such Heirs being within age shall take nothing out of the Land of the Heirs but only the reasonable Profits reasonable Customs and reasonable Services and that without making destruction or wast of Men or Goods And if we shall have committed the Custody of the Land of any such Heir to a Sheriff or any other who is to account to us for the Profits of the Land and that such Committee make destruction or wast We will take of him amends and the Land shall be committed to two lawful and good Men of that Fee who shall account for the Profits to us or to such as we shall appoint And if we shall give or sell to any Person the custody of the Lands of any such Heir and such Donee or Vendee make destruction or wast he shall lose the Custody and it shall be committed to two Lawful Sage and Good Men who shall account to Us for the same as aforesaid And the Guardian whilst he has the Custody of the Heirs Land shall maintain the Houses Ponds Parks Pools Mills and other Appurtenances to the Land out of the Profits of the Land it self and shall restore to the Heir when he shall be of full age his Land well stockt with Ploughs Barns and the like as it was when he receiv'd it and as the Profits will reasonably afford Heirs shall be married without disparagement insomuch that before the Marriage be contracted the Persons that are next of Kin to the Heir shall be made acquainted with it A Widow after the death of her Husband shall presently and without oppression have her Marriage and her Inheritance nor shall give any thing for her Marriage nor for her Dower nor for her Inheritance which she and her Husband were seiz'd of the day of her Husband's death and she shall remain in her Husband's House Forty Days after his death within which time her Dower shall be assign'd her No Widow shall be compelled to marry if she be desirous to live single provided she give Security not to marry without our leave if she hold of us or without the Lord's leave of whom she holds if she hold of any other We nor our Bayliffs will not seize the Lands or Rents of a Debtor for any Debt so long as his Goods are sufficient to pay the