2d which he swears to abolish Now what Laws are upright and what evil who shall judg but the King c. So that in effect the King doth swear to keep no Laws but such as in his judgment are upright c. And if he did strictly swear to observe all Laws he could not without Perjury give his consent to the repealing or abrogating of any Statute by Act of Parliament c. And again But let it be supposed for Truth that Kings do swear to observe all Laws of their Kingdoms yet no man can think it reason that the Kings should be more bound by their voluntary Oaths than common Persons Now if a private Person make a Contract either with Oath or without Oath he is no farther bound than the equity and justice of the Contract ties him for a man may have relief against an unreasonable and unjust Promise if either deceit or error force or fear induced him thereunto or if it be hurtful or grievous in the performance since the Law in many cases gives the King a Prerogative above common persons Lest I should be thought to insist upon small advantages I will not oblige any man to shew where Filmer found this Oath nor observe the faults committed in the Translation but notwithstanding his false representation I find enough for my purpose and intend to take it in his own words But first I shall take leave to remark that those who for private interests addict themselves to the personal service of Princes tho the ruin of their Country find it impossible to perswade Mankind that Kings may govern as they please when all men know there are Laws to direct and restrain them unless they can make men believe they have their power from a universal and superior Law or that Princes can attempt to dissolve the obligations laid upon them by the Laws which they so solemnly swear to observe without rendring themselves detestable to God and Man and subject to the revenging hands of both unless they can invalidate those Oaths Mr. Hobbes I think was the first who very ingeniously contrived a compendious way of justifying the most abominable Perjuries and all the mischiefs ensuing thereupon by pretending that as the King's Oath is made to the People the People may absolve him from the obligation and that the People having conferred upon him all the Power they had he can do all that they could he can therefore absolve himself and is actually free since he is so when he pleases This is only false in the minor for the People not having conferred upon him all but only a part of their Power that of absolving him remains in themselves otherwise they would never have obliged him to take the Oath He cannot therefore absolve himself The Pope finds a help for this and as Christ's Vicar pretends the power of Absolution to be in him and exercised it in absolving King John But our Author despairing to impose either of these upon our Age and Nation with more impudence and less wit would enervate all Coronation-Oaths by subjecting them to the discretion of the taker whereas all men have hitherto thought their force to consist in the declared sense of those who give them This doctrine is so new that it surpasses the subtilty of the Schoolmen who as an ingenious Person said of them had minced Oaths so fine that a million of them as well as Angels may stand upon the point of a needle and were never yet equalled but by the Jesuits who have overthrown them by mental reservations which is so clearly demonstrated from their books that it cannot be denied but so horrible that even those of their own Order who have the least spark of common honesty condemn the practice And one of them being a Gentleman of a good family told me he would go the next day and take all the Oaths that should be offer'd if he could satisfy his conscience in using any manner of equivocation or mental reservation or that he might put any other sense upon them than he knew to be intended by those who offer'd them And if our Author's conscience were not more corrupted than that of the Jesuit who had lived fifty years under the worst Discipline that I think ever was in the world I would ask him seriously if he truly believe that the Nobility Clergy and Commonalty of England who have bin always so zealous for their antient Laws and so resolute in defending them did mean no more by the Oaths they so solemnly imposed and upon which they laid so much weight than that the King should swear to keep them so far only as he should think fit But he swears only to observe those that are upright c. How can that be understood otherwise than that those who give the Oath do declare their Laws and Customs to be upright and good and he by taking the Oath affirms them to be so Or how can they be more precisely specified than by the ensuing Clause Granted from God by just and devout Kings by Oath especially those of the famous King Edward But says he by the same Oath Richard the 2d was bound to abolish those that were evil If any such had crept in through error or bin obtruded by malice the evil being discovered and declared by the Nobility and Commons who were concerned he was not to take advantage of them or by his refusal to evade the abolition but to join with his people in annulling them according to the general Clause of assenting to those Quas vulgus elegerit Magna Charta being only an abridgment of our antient Laws and Customs the King that swears to it swears to them all and not being admitted to be the interpreter of it or to determin what is good or evil fit to be observed or annulled in it can have no more power over the rest This having bin confirmed by more Parliaments than we have had Kings since that time the same obligation must still lie upon them all as upon John and Henry in whose time that claim of right was compiled The Act was no less solemn than important and the most dreadful curses that could be conceived in words which were denounced against such as should any way infringe it by the Clergy in Westminster-Hall in the presence and with the assent of K. Henry the 3d many of the principal Nobility and all the Estates of the Kingdom shew whether it was referred to the King's Judgment or not when 't is evident they feared the violation from no other than himself and such as he should employ I confess the Church as they then called the Clergy was fallen into such corruption that their Arms were not much to be feared by one who had his conscience clear but that could not be in the case of perjury and our Ancestors could do no better than to employ the spiritual sword reserving to themselves the use of the other in case that should be
No man has yet observed the Moderation of Gideon to have bin in Abimelech the Piety of Eli in Hophni and Phineas the Purity and Integrity of Samuel in Joel and Abiah nor the Wisdom of Solomon in Rehoboam And if there was so vast a difference between them and their Children who doubtless were instructed by those excellent men in the ways of Wisdom and Justice as well by Precept as Example were it not madness to be confident that they who have neither precept nor good example to guide them but on the contrary are educated in an utter ignorance or abhorrence of all virtue will always be just and good or to put the whole power into the hands of every man woman or child that shall be born in governing Families upon a supposition that a thing will happen which never did or that the weakest and worst will perform all that can be hoped and was seldom accomplished by the wisest and best exposing whole Nations to be destroy'd without remedy if they do it not And if this be madness in all extremity 't is to be presumed that Nations never intended any such thing unless our Author prove that all Nations have bin mad from the beginning and must always continue to be so To cure this he says They degenerate into Tyrants and if he meant as he speaks it would be enough For a King cannot degenerate into a Tyrant by departing from that Law which is only the product of his own will But if he do degenerate it must be by departing from that which dos not depend upon his will and is a rule prescribed by a power that is above him This indeed is the Doctrine of Bracton who having said that the Power of the King is the Power of the Law because the Law makes him King adds That if he do injustice he ceases to be King degenerates into a Tyrant and becomes the Vicegerent of the Devil But I hope this must be understood with temperament and a due consideration of human frailty so as to mean only those injuries that are extreme for otherwise he would terribly shake all the Crowns of the World But lest our Author should be thought once in his life to have dealt sincerely and spoken truth the next lines shew the fraud of his last Assertion by giving to the Prince a power of mitigating or interpreting the Laws that he sees to be rigorous or doubtful But as he cannot degenerate into a Tyrant by departing from the Law which proceeds from his own will so he cannot mitigate or interpret that which proceeds from a superior Power unless the right of mitigating or interpreting be conferred upon him by the same For as all wise men confess that none can abrogate but those who may institute and that all mitigation and interpretation varying from the true sense is an alteration that alteration is an abrogation for whatsoever is changed is dissolved and therefore the power of mitigating is inseparable from that of instituting This is sufficiently evidenced by Henry the Eighth's Answer to the Speech made to him by the Speaker of the House of Commons 1545 in which he tho one of the most violent Princes we ever had confesses the Parliament to be the Law-makers and that an obligation lay upon him rightly to use the power with which he was entrusted The right therefore of altering being inseparable from that of making Laws the one being in the Parliament the other must be so also Fortescue says plainly the King cannot change any Law Magna Charta casts all upon the Laws of the Land and Customs of England but to say that the King can by his will make that to be a Custom or an antient Law which is not or that not to be so which is is most absurd He must therefore take the Laws and Customs as he finds them and can neither detract from nor add any thing to them The ways are prescribed as well as the end Judgments are given by equals per Pares The Judges who may be assisting to those are sworn to proceed according to Law and not to regard the King's Letters or Commands The doubtful Cases are reserved and to be referred to the Parliament as in the Statute of 35 Edw. 3d concerning Treasons but never to the King The Law intending that these Parliaments should be annual and leaving to the King a power of calling them more often if occasion require takes away all pretence of a necessity that there should be any other power to interpret or mitigate Laws For 't is not to be imagined that there should be such a pestilent evil in any antient Law Custom or later Act of Parliament which being on the sudden discover'd may not without any great prejudice continue for forty days till a Parliament may be called whereas the force and essence of all Laws would be subverted if under colour of mitigating and interpreting the power of altering were allow'd to Kings who often want the inclination and sor the most part the capacity of doing it rightly 'T is not therefore upon the uncertain will or understanding of a Prince that the safety of a Nation ought to depend He is sometimes a child and sometimes overburden'd with years Some are weak negligent slothful foolish or vicious others who may have something of rectitude in their intentions and naturally are not uncapable of doing well are drawn out of the right way by the subtilty of ill men who gain credit with them That rule must always be uncertain and subject to be distorted which depends upon the fancy of such a man He always fluctuates and every passion that arises in his mind or is infused by others disorders him The good of a People ought to be established upon a more solid foundation For this reason the Law is established which no passion can disturb 'T is void of desire and fear lust and anger 'T is Mens sine affectu written reason retaining some measure of the Divine Perfection It dos not enjoin that which pleases a weak frail man but without any regard to persons commands that which is good and punishes evil in all whether rich or poor high or low 'T is deaf inexorable inflexible By this means every man knows when he is safe or in danger because he knows whether he has done good or evil But if all depended upon the will of a man the worst would be often the most safe and the best in the greatest hazard Slaves would be often advanced the good and the brave scorn'd and neglected The most generous Nations have above all things sought to avoid this evil and the virtue wisdom and generosity of each may be discern'd by the right fixing of the rule that must be the guide of every mans life and so constituting their Magistracy that it may be duly observed Such as have attained to this perfection have always flourished in virtue and happiness They are as Aristotle
manifest this by the words Be it enacted by the Lords Spiritual and Temporal and Commons in Parliament assembled and by Authority of the same But King James says Filmer in his Law of free Monarchy affirms the contrary and it may be so yet that is nothing to us No man doubts that he desired it might be so in England but it dos not from thence appear that it is so The Law of a free Monarchy is nothing to us for that Monarchy is not free which is regulated by a Law not to be broken without the guilt of Perjury as he himself confessed in relation to ours As to the words cited from Hooker I can find no hurt in them To draw up the form of a good Law is a matter of invention and judgment but it receives the force of a Law from the power that enacts it We have no other reason for the paiment of Excise or Customs than that the Parliament has granted those Revenues to the King to defray the publick Charges Whatever therefore King James was pleased to say in his Books or in those written for him we do not so much as know that the killing of a King is Treason or to be punished with death otherwise than as it is enacted by Parliament and it was not always so for in the time of Ethelstan the Estimates of Lives were agreed in Parliament and that of a King valued at thirty thousand Thrymsae And if that Law had not bin alter'd by the Parliament it must have bin in force at this day It had bin in vain for a King to say he would have it otherwise for he is not created to make Laws but to govern according to such as are made and sworn to assent to such as shall be proposed He who thinks the Crown not worth accepting on these conditions may refuse it The words Le Roy le veult are only a pattern of the French fashions upon which some Kings have laid great stress and would no doubt have bin glad to introduce Car tel est nostre plaisir but that may prove a difficult matter Nay in France it self where that Stile and all the ranting expressions that please the vainest of men are in mode no Edict has the power of a Law till it be registred in Parliament This is not a mere ceremony as some pretend but all that is essential to a Law Nothing has bin more common than for those Parliaments to refuse Edicts sent to them by the King When John Chastel had at the instigation of the Jesuits stabb'd Henry the fourth in the Mouth and that Order had designed or executed many other execrable crimes they were banished out of the Kingdom by an Arrest of the Parliament of Paris Some other Parliaments registred the same but those of Tholouse and Bordeaux absolutely refused and notwithstanding all that the King could do the Jesuits continued at Tournon and many other places within their Precincts till the Arrest was revoked These proceedings are so displeasing to the Court that the most violent ways have bin often used to abolish them About the year 1650 Seguier then Chancellor of France was sent with a great number of Soldiers to oblige the Parliament of Paris to pass some Edicts upon which they had hesitated but he was so far from accomplishing his design that the People rose against him and he thought himself happy that he escaped with his Life If the Parliaments do not in all parts of the Kingdom continue in the Liberty of approving or rejecting all Edicts the Law is not altered but oppressed by the violence of the Sword And the Prince of Condé who was principally employ'd to do that work may as I suppose have had leisure to reflect upon those Actions and cannot but find reason to conclude that his excellent valour and conduct was used in a most noble exploit equally beneficial to his Country and himself However those who are skilled in the Laws of that Nation do still affirm that all publick Acts which are not duly examined and registred are void in themselves and can be of no force longer than the miserable People lies under the violence of Oppression which is all that could reasonably be said if a Pirat had the same power over them But whether the French have willingly offer'd their ears to be bor'd or have bin subdued by force it concerns us not Our Liberties depend not upon their will virtue or fortune how wretched and shameful soever their Slavery may be the evil is only to themselves We are to consider no human Laws but our own and if we have the spirit of our Ancestors we shall maintain them and die as free as they left us Le Roy le veut tho written in great Letters or pronounced in the most tragical manner can signify no more than that the King in performance of his Oath dos assent to such Laws as the Lords and Commons have agreed Without prejudice to themselves and their Liberties a People may suffer the King to advise with his Council upon what they propose Two eyes see more than one and human judgment is subject to errors Tho the Parliament consist of the most eminent men of the Nation yet when they intend good they may be mistaken They may sefely put a check upon themselves that they may farther consider the most important matters and correct the errors that may have bin committed if the King's Council do discover them but he can speak only by the advice of his Council and every man of them is with his head to answer for the advices he gives If the Parliament has not bin satisfied with the reasons given against any Law that they offer'd it has frequently pass'd and if they have bin satisfied 't was not the King but they that laid it aside He that is of another opinion may try whether Le Roy le veut can give the force of a Law to any thing conceived by the King his Council or any other than the Parliament But if no wise man will affirm that he can do it or deny that by his Oath he is obliged to assent to those that come from them he can neither have the Legislative power in himself nor any other part in it than what is necessarily to be performed by him as the Law prescribes I know not what our Author means by saying Le Roy le veut is the interpretative phrase pronounced at the passing of every Act of Parliament For if there be difficulty in any of them those words do no way remove it But the following part of the paragraph better deserves to be observed It was says he the antient custom for á long time until the days of Henry the fifth for the Kings when any Bill was brought to them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted as a Law But the custom of the
much as they who have a part cannot but have a right of defending that part Quia data facultate datur jus faculiatem tuendi without which it could be of no effect The particular limits of the Rights belonging to each can only be judged by the precise Letter or general Intention of the Law The Dukes of Venice have certainly a part in the Government and could not be called Magistrates if they had not They are said to be supreme all Laws and publick Acts bear their Names The Ambassador of that State speaking to Pope Paul the 5th denied that he acknowledged any other Superior than God But they are so well known to be under the Power of the Law that divers of them have bin put to death for transgressing it and a marble Gallows is seen at the foot of the stairs in St. Mark 's Palace upon which some of them and no others have bin executed But if they may be duly opposed when they commit undue Acts no man of judgment will deny that if one of them by an outragious Violence should endeavour to overthrow the Law he might by violence be suppressed and chastised Again some Magistrates are entrusted with a power of providing Ships Arms Ammunition and Victuals for War raising and disciplining Soldiers appointing Officers to command in Forts and Garisons and making Leagues with Foreign Princes and States But if one of these should imbezel sell or give to an Enemy those Ships Arms Ammunition or Provisions betray the Forts employ only or principally such men as will serve him in those wicked Actions and contrary to the trust reposed in him make such Leagues with Foreigners as tend to the advancement of his personal Interests and to the detriment of the Publick he abrogates his own Magistracy and the Right he had perishes as the Lawyers say frustratione finis He cannot be protected by the Law which he has overthrown nor obtain impunity for his Crimes from the Authority that was conferred upon him only that he might do good with it He was singulis major on account of the excellence of his Office but universis minor from the nature and end of his institution The surest way of extinguishing his Prerogative was by turning it to the hurt of those who gave it When matters are brought to this posture the Author of the mischief or the Nation must perish A Flock cannot subsist under a Shepherd that seeks its ruin nor a People under an unfaithful Magistrate Honour and Riches are justly heaped upon the heads of those who rightly perform their duty because the difficulty as well as the excellency of the work is great It requires Courage Experience Industry Fidelity and Wisdom The good Shepherd says our Saviour says down his life for his Sheep The Hireling who flies in time of danger is represented under an ill character but he that sets himself to destroy his Flock is a Wolf His Authority is incompatible with their subsistence and whoever disapproves Tumults Seditions or War by which he may be removed from it if gentler means are ineffectual subverts the Foundation of all Law exalts the fury of one man to the destruction of a Nation and giving an irresistible Power to the most abominable Iniquity exposes all that are good to be destroy'd and Virtue to be utterly extinguished Few will allow such a Preeminence to the Dukes of Venice or Genoa the Advoyers of Switzerland or the Burgomasters of Amsterdam Many will say these are Rascals if they prove false and ought rather to be hang'd than suffer'd to accomplish the Villanies they design But if this be confess'd in relation to the highest Magistrates that are among those Nations why should not the same be in all others by what name soever they are called When did God confer upon those Nations the extraordinary privilege of providing better for their own safety than others Or was the Gift universal tho the Benefit accrue only to those who have banished great Titles from among them If this be so 't is not their Felicity but their Wisdom that we ought to admire and imitate But why should any think their Ancestors had not the same care Have not they who retain'd in themselves a Power over a Magistrate of one name the like over another Is there a charm in words or any name of such efficacy that he who receives it should immediately become Master of those that created him whereas all others do remain for ever subject to them Would the Venetian Government change its nature if they should give the name of King to their Prince Are the Polanders less free since the title of King is conferr'd upon their Dukes or are the Moscovites less Slaves because their chief Magistrate has no other than that of Duke If we examine things but a little 't will appear that Magistrates have enjoy'd large Powers who never had the name of Kings and none were ever more restrained by Laws than those of Sparta Arragon the Goths in Spain Hungary Bohemia Sweden Denmark Poland and others who had that Title There is therefore no such thing as a Right universally belonging to a Name but every one enjoys that which the Laws by which he is confer upon him The Law that gives the Power regulates it and they who give no more than what they please cannot be obliged to suffer him to whom they give it to take more than they thought fit to give or to go unpunished if he do The Agreements made are always confirmed by Oath and the treachery of violating them is consequently aggravated by Perjury They are good Philosophers and able Divines who think this can create a Right to those who had none or that the Laws can be a protection to such as overthrow them and give opportunity of doing the mischiefs they design If it do not then he that was a Magistrate by such actions returns into the condition of a private man and whatever is lawful against a Thief who submits to no Law is lawful against him Men who delight in cavils may ask Who shall be the Judg of these occasions and whether I intend to give to the People the decision of their own Cause To which I answer that when the Contest is between the Magistrate and the People the party to which the determination is referred must be the Judg of his own case and the question is only Whether the Magistrate should depend upon the Judgment of the People or the People on that of the Magistrate and which is most to be suspected of injustice That is whether the people of Rome should judg Tarquin or Tarquin judg the people He that knew all good men abhorred him for the murder of his Wife Brother Father-in-law and the best of the Senate would certainly strike off the heads of the most eminent remaining Poppies and having incurr'd the general hatred of the people by the wickedness of his Government he seared revenge and endeavouring to
distributed into many Families of Scotland remains to this day and if proximity of blood is to be consider'd ought always to have bin preferr'd before her and her descendents unless there be a Law that gives the preference to Daughters before Sons What right soever Henry the second had it must necessarily have perished with him all his Children having bin begotten in manifest Adultery on Eleanor of Gascony during the life of Lewis King of France her first Husband and nothing could be alledged to colour the business but a dispensation from the Pope directly against the Law of God and the words of our Saviour who says That a Wife cannot be put away unless for Adultery and he that marrieth her that is put away committeth Adultery The pollution of this spring is not to be cured but tho it should pass unregarded no one part of the Succession since that time has remained intire John was preferred before Arthur his elder brother's Son Edward the third was made King by the deposition of his Father Henry the fourth by that of Richard the 2d If the house of Mortimer or York had the right Henry the 4th 5th and 6th were not Kings and all who claim under them have no title However Richard the third could have none for the Children of his elder Brother the Duke of Clarence were then living The Children of Edward the fourth may be suspected of bastardy and tho it may have bin otherwise yet that matter is not so clear as things of such importance ought to be and the consequence may reach very far But tho that scruple were removed 't is certain that Henry the 7th was not King in the right of his Wife Elizabeth for he reigned before and after her and for his other titles we may believe Philip de Commines who says He had neither cross nor pile If Henry the eighth had a right in himself or from his Mother he should have reigned immediately after her death which he never pretended nor to succeed till his Father was dead thereby acknowledging he had no right but from him unless the Parliament and People can give it The like may be said of his Children Mary could have no title if she was a Bastard begotten in Incest but if her Mother's marriage was good and she legitimate Elizabeth could have none Yet all these were lawful Kings and Queens their Acts continue in force to this day to all intents and purposes the Parliament and People made them to be so when they had no other title The Parliament and People therefore have the power of making Kings Those who are so made are not Usurpers We have had none but such for more than seven hundred years They were therefore lawful Kings or this Nation has had none in all that time and if our Author like this conclusion the account from whence it is drawn may without difficulty be carried as high as our English Histories do reach This being built upon the steddy Foundation of Law History and Reason is not to be removed by any man's opinion especially by one accompanied with such circumstances as Sir Walter Raleigh was in during the last years of his life And there is something of baseness as well as prevarication in turning the words of an eminent Person reduced to great difficulties to a sense no way agreeing with his former actions or writings and no less tending to impair his reputation than to deceive others Our Author is highly guilty of both in citing Sir Walter Raleigh to invalidate the great Charter of our Liberties as begun by Vsurpation and shewed to the world by Rebellion whereas no such thing nor any thing like it in word or principle can be found in the works that deserve to go under his name The Dialogue in question with some other small pieces published after his death deserve to be esteemed spurious Or if from a desire of life when he knew his head lay under the Ax he was brought to say things no way agreeing with what he had formerly profess'd they ought rather to be buried in oblivion than produced to blemish his memory But that the publick Cause may not suffer by his fault 't is convenient the world should be informed that tho he was a well qualified Gentleman yet his Morals were no way exact as appears by his dealings with the brave Earl of Essex And he was so well assisted in his History of the World that an ordinary man with the same helps might have perform'd the same things Neither ought it to be accounted strange if that which he writ by himself had the tincture of another spirit when he was deprived of that assistance tho his life had not depended upon the will of the Prince and he had never said That the bonds of Subjects to their Kings should always be wrought out of Iron and those of Kings to their Subjects out of Cobwebs SECT XXXI Free Nations have a right of meeting when and where they please unless they deprive themselves of it APerverted Judgment always leads men into a wrong way and perswades them to believe that those things favour their cause that utterly overthrow it For a proof of this I desire our Author's words may be consider'd In the former Parliaments says he instituted and continued since Henry the first his time is not to be found the usage of any natural Liberty of the people For all those Liberties that are claimed in Parliament are Liberties of Grace from the King and not the Liberties of Nature to the People For if the Liberty were natural it would give power unto the multitude to assemble themselves when and where they pleased to bestow the Sovereignty and by pactions to limit and direct the exercise of it And I say that Nations being naturally free may meet when and where they please may dispose of the Soveraignty and may direct or limit the exercise of it unless by their own act they have deprived themselves of that right and there could never have bin a lawful Assembly of any People in the world if they had not had that power in themselves It was proved in the preceding Section that all our Kings having no title were no more than what the Nobility and People made them to be that they could have no power but what was given to them and could confer none except what they had received If they can therefore call Parliaments the power of calling them must have bin given to them and could not be given by any who had it not in themselves The Israelites met together and chose Ehud Gideon Samson Jephtha and others to be their Leaders whom they judged fit to deliver them from their Enemies By the same right they assembled at Mispeth to make War against the Tribe of Benjamin when Justice was denied to be done against those who had villanously abused the Levites Concubine In the like manner they would have made Gideon King but