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
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 〈◊〉 〈◊〉 〈◊〉
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
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
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
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
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
and that by the Example of their Brethren they may for Time to come employ all their Endeavours to make reparation for the Mischief and Scandal their Errors and Prejudices have in a great measure brought both upon the Church and State. FINIS THE APPENDIX CONTAINING I. Concilii Toletani IV. Canon LXXV II. Capitula super quibus facta est Magna Charta Regis Johannis ex MSS. Arch. Cantuar. Fol. 14. Quae etiam authenticè cum Sigillo extant in manibus Episc Salisburiensis III. Diploma sive Ordinationes Johannis Regis Angliae queis statuit quid Nobiles quid Plebes observare debeant ad pacem tranquillitatem Regni stabiliendam LONDON Printed for Ric. Chiswell 1689. APPENDIX The 75. Canon of the Fourth Council of Toledo AFter some Ordinances and Decrees made by us with respect to the Ecclesiastical Order and their particular Discipline the last Resolution taken by us Priests is to enact a final Pontifical Decree for the puissance of our Kings and the stability of the Gothick Nation in presence of the Great Judge of the World. For many Nations are so false and perfidious that they make slight of the Oath of Faithfulness they have sworn to their Kings and tho with their mouths they profess Allegiance to their Prince yet retain Perfidiousness in their hearts they swear indeed to their Kings but are as ready to break it again upon occasion not fearing that Roll of Judgment which brings a Curse and manifold Punishments upon those who swear falsly by the name of the Lord. What hope is there that such as these should either stand to their Capitulations in time of War or observe their Treaties of Peace with other Nations Or what Covenant or Contract will they not break Or what Promise made to their Enemies will they keep when they violate the Allegiance sworn to their own Kings For who is so mad as to endeavour to cut off his Head with his own Hand This is notorious that unmindful of their own Preservation they kill themselves turning their force and violence against themselves and their own Kings And whereas the Lord saith Touch not mine Anointed and David Who can stretch forth his hand against the Lords anointed and be guiltless these are neither afraid of Perjury or murthering their own Princes Sure it is that a Promise tho made to Enemies ought to be kept Now if we must keep Faith and Truth in War to our Enemies how much more are we to keep them on all other occasions For it is a piece of Sacriledge for Subjects to violate the Faith promised to their Kings beâ—â—use in so doing they not only sin against their Princes but agâ—inst God himself in whose name they make their promise Hence it comes that the wrath of God doth oft change and transfer many of the Earthly Kingdoms the breach of Faith and corruption of Manners making way for the destruction and change of the Government Wherefore also it ought to be our great care to avoid the mishaps attending these Nations lest we be involved with them deservedly in the same Punishment Thus we see that God did not spare the Angels that rebell'd against him who by their disobedience forfeited their Heavenly Mansions Wherefore 't is said also by the Prophet Isaiah My Sword is made drunk in Heaven how much more then ought we to stand in awe and fear the same disaster lest by our perfidiousness we be destroyed by the same Sword of an angry God. If therefore we desire to avoid the divine wrath and to have his severity turn'd into Favour and Clemency towards us let us above all things with fear keep and observe to God the Religious Worship and Service we owe him and to our Kings the Faith and Allegiance we have promis'd them Let there not be found amongst us as in some other Nations any wicked contrivance of Vnfaithfulness or cunning Perfidiousness or the horrid Crime of Perjury or mischievous Plottings of Conspiracies Let none amongst us egg'd on by Presumption invade the Throne or stir up Seditions amongst his Fellow-Citizens or compass and contrive the Death of Kings but when the King is departed this Life in Peace let the Lords of the Nation together with the Priests by joint Advice and Consent appoint and constitute a Successor of the Kingdom that so whilst this band of Unity and Concord is thus preserved amongst us none may endeavour to make a rent in the Kingdom by force or unjust ways But in case this Admonition prove not of sufficient force to correct the bad impressions which may be on the minds of any and to incline the hearts of all to promote the common good we think good to pronounce Sentence Whosoever therefore either of us or any of the People of Spain shall by any Conspiracy or Endeavour come to break and falsifie the Oath he has taken for the good State and Welfare of the Gothick Nation and the safety of the King or shall presume to kill the King or deprive him of his Royal Dignity or by a Tyrannical presumption shall Usurp the Throne let him be Anathema in the Eyes of God the Father and the Holy Angels and be cast out of the Catholick Church which he has profan'd by his Perjury and be turn'd out from all Christian Societies together with all the Complices of his wickedness because it is but just that they who are guilty of the same Crime should be involved in the same punishment Which therefore we think good to repeat again saying Whosoever from this time forwards either of us or of all the People of Spain shall by any Conspiracy or Endeavour break the Oath which he has taken for the good State of his Native Country and of the Gothick Nation and for the safety of the King's Person or shall presume to kill the King or deprive him of his Kingdom or by a tyrannical presumption shall Usurp the Throne let him be Anathema in the sight of Christ and his Holy Apostles and be cast out of the Catholick Church which he has profan'd by his Perjury and thrust out from all Christian Societies and as a damn'd Person be deliver'd up to the just Judgment of God to come together with all his complices and partakers Yea we repeat a third time That whosoever of us or any of the People of Spain in contrivance or deed break his Oath which he hath taken for the good Sate and Welfare of his own Native Countrey and the Gothick Nation and the safety and preservation of the King's Person or attempt the life of the King or deprive him of his Royal Dignity or by a tyrannical presumption shall Usurp the Throne let him be Anathema in the sight of the Holy Ghost and the Martyrs of Christ and be excommunicated from the Catholick Church which he has profaned by his Perjury and be renounced all Christian Communion without ever having any share or part with the Righteous but with the Devil and his
of Henry I. and partly were gathered out of the Old Laws of King Edward The Historian speaketh of these very Articles here Printed 5. 'T is observable That in these Articles there is no care taken for the Liberties of the Church The reason of which I conceive to be this The Church-men mostly then held with the King. And the Hand of the King was most heavy upon the Laity who framed these Articles without the Clergy 6. These Articles provide nothing concerning the Summons and holding of the Common Council of the Realm The reason whereof probably was this The Barons of that time had introduced a Practice of themselves to appoint the Time and Place of the Meeting of the Common Council of the Nation At the granting of these very Articles King John sent to the Barons Vt diem locum providerent congruum ad haec omnia prosequenda That they the Barons would appoint Time and Place for the concluding that matter In the time of Henry III. in whose Charter the Article de communi concilio habendo was omitted and in whose time the Barons begun again to War we find that the Lords came unto the King and said He must ordain and see for the Welfare of the Realm and then set the King a Day to meet at Oxenford and there to hold a Parliament So the English Chronicle However this grand Affair as also that of the Church were provided for in the Magna Charta of King John. Whereby it further appears That these Articles were but the Rudiments of that Charter after further enlarged upon further deliberation I COME now in the second place to say a few things concerning the Perfect and Compleat Magna Charta of King John here printed in French. 1. It was the Custom of old Times to make three several Copies of Publick Acts and Charters Of the Magna Charta we have one in Latin in Matthew Paris This in French or old Norman Language was kept in the Records of France and thence Published some years past by Luke Dachery in his Spicilegium That in English was sent into all Counties but as yet no Copy in this Language appeareth Thus also the Laws of Canute and the Provisions of Oxford to mention no more made in the time of Hen. III. were Publisht in three Languages 2. The very same Charter Publisht in Latin by Matthew Paris is also extant in the History of Rad. Niger almost word for word and also in two several Manuscripts in the Cottonian Library where also about twenty years past the very Original was to be seen 3. The Magna Charta of King John is not extant in any Record in the Tower or elsewhere as several affirm nor the Magna Charta of H. III. but only by Inspeximus in the time of Edw. I. A thing much to be wondered at Rudburne writeth of the Charters of Hen. I. Sublatae sunt omnes variis fallaciis exceptis tribus All but three were embezel'd 4. The Magna Charta of King John and that of Hen. III. are said to be the very same where as they do exceedingly differ as Mr. Selden in his Epinomis hath partly observed and may further appear to any that will compare them Matthew Paris pag. 323. The Tenor of these Charters is fully set down above where our History treateth of King John So as the Charters of King John and Hen. III. are not found to differ in any thing These words are not the words of Matthew Paris but of Roger VVendover whom Matthew Paris often transcribeth very hastily in whose History the Charter entred as King John's is exactly the same with that Charter of Henry the Third 5. As to that remarkable Article Et ad habendum commune concilium Regni And to the holding the Commune Council of the Realm c. I shall briefly say 1. That it hath been left out of all the Charters after King John's time but is found in several Copys very Authentick and particularly in the French Copy now here printed 2. That this Article doth not as some have written give the Original to our Parliaments for such Parliaments or communia concilia were held before this time King Richard the First after his return from the Holy VVar summon'd a Common Council or Parliament at London of the Clergy and Laity where he demanded Council about his making War upon the King of France Earl Roger answered for the whole Parliament The Earls Barons and Knights will aid you O King with their Swords the Archbishops Bishops Citizens Burgesses and Ecclesiastick Persons will aid you with Money Abbates Priors and such others will aid you with their Prayers So the English Chron. And to omit others an Instance of such a Parliament is found in the Annales of Burton pag. 263. compared with page 265. King John call'd to Northampton all the Earls and Barons of England it followeth Pandulfus spake at the same time to the Earls Barons and Knights O that you c. The Clergy indeed are not here mentioned but were certainly present because the occasion of that Council was to restore Peace to the Church and Kingdom as Matthew Paris or as the Annalist of Waverly wordeth it betwixt the King and the Archbishop 3. I conceive the chief end of adding this Article was to prevent the taking of Aids commonly called Talliage or Escuage by surprize or by the consent only of a few which King John had lately done For the summoning of the Commune concilium here is plainly limited to the Sessing of Aids and Escuage But the Mirror giveth another account of the meeting of Parliaments worthy of Consideration page 225. where the Author refers us to higher times There is yet one Article more in this Charter of King John which deserveth our regards the rather because it being lately alledged in the Pastoral Letter hath much scandalized some with its suprising Novelty The words are Barones cum communia totius terrae gravabunt nos The Barons with the Community of the Land shall aggrieve or distress us c. But why should this sound uncouth to any who have with Reflection perused the Histories of this or the Neighbouring Kingdoms wherein the same Practice is frequently found Andrew King of Hungary allowed the same Liberty to his People as may be seen at large in the Decrees of the Kings of Hungary in the end of Bonfinius Like Examples occur in the French Annales and in the Annales of Waverly in the time of Hen. the Third pag. 217. If any will yet suspect that Matthew Paris in this Point hath not writ fairly or that the Articles produced by the Bishop of Salisbury are not to be relied on and some such dissatisfied People there are then let them if they can be believed desirous of satisfaction repair to the Red Book of Exchequer where fol. 234. they may find the very same VVords and Liberty granted as before Which Record cannot well be suspected of being corrupted because it
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