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
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
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
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