St. Austin speaks lib. 3. confess c. 8. yet it is no less notorious that this Compact doth not respect Tyrants Accordingly we see that the wisest of the Emperors did so little believe that it was lawful for them to govern arbitrarily that Trajan in favour of whom the Royal Law was renewed at the time of his exaltation to the Empire addresseth himself in these words to the Prefect of the Praetorium Accipe hunc gladium pro me si rectè agam sin aliter in me magis quod moderatorem omnium errare minus fas sit Take this Sword and use it for me in case I rule well but if not rather against me because it less becomes him that rules over all than it does others to commit an Error Dion Aurel. Victor 2ly That the Emperors who were most renowned for Vertue did never affect to publish any Laws of their own Heads till after they had got them approved by the Senate This is that which Lampridius records concerning Alexander Severus and we see the same practis'd by Theodosius l. Humanum C. de F. But whatever this Royal Law may have been sure it is 1st That the same was abolished together with the Roman Empire which ended in the West with Augustulus 2ly That it ceased in the East with the Emperors of Constantinople 3ly It is certain that they who ruin'd the Empire in the West did never adopt this Royal Law to govern their Subjects by that Arbitrary Rule 4ly It is also certain that the Princes who since the Year 800 have succeeded Charles the Great and who have taken to themselves the Names of Roman Emperors did not govern according to this Law nor ever pretended that that Law ought to be observed in favour of them under pretence of their bearing the Title of Roman Emperors This is that which I believe it will be of use solidly to evince though I intend to do it very compendiously that I may not tire the Reader CHAP. XI That the States of the West and of the North never knew this Royal Law. THough the People of the West allow'd their Princes the Title of King yet it may be averr'd that the most part of those Kingdoms which had their Rise from the Ruins of the Roman Empire never owned this Royal Law. The Power of their Kings was originally limited as Caesar witnesseth in his Commentaries concerning the German Kings which were to speak properly only Commanders or Generals I make particular mention of the Germans because for the most part they were the Founders of the Northern and Western Kingdoms Germany having been as it were the Nursery from whence have proceeded most of those Nations who at this Day have any Name in Europe See what Tacitus asserts concerning the German Kings Nec Germanorum Regibus infinita aut libera potestas est de minoribus rebus Principes consultant de majoribus omnes Rex aut Princeps auditur Authoritate suadendi magis quam jubendi potestate si displicuit sententia fremitu aspernantur Neither is the Power of the German Kings altogether free or unbounded Matters of lesser Moment are left to the Advice of the Princes but those of greater Concern are debated by the whole Society they hear the King as one having Authority to persuade rather than any Power to command them and if his Sentiments displease them they are rejected with boldness Caesar gives us much the same portraicture of the Kings of the Gauls And that their Successors who tore the Roman Empire to pieces have retained this Form of a Limited Monarchy is Matter of incontestable Evidence to every one that will take a little pains to peruse the Histories of those Nations to run over their Laws and take notice how they have carried it towards their Kings when-ever they fell to Tyranny They who would be informed how far the Power of the Gothick Kings in Spain was limited need only to cast their Eyes upon the account which Gregory of Tours gives us Lib. 2. cap. 31. concerning this Matter and upon their History in the Chronicle of St. Isidorus We have the fundamental Laws of their Kingdom set down by Molina de Hispan Primogenit Cap. 2. N. 13. But this appears yet more clearly from the Body of their Laws which is still extant and published by Lindenberg 1st It appears that their Laws were enacted ex universali consensu Civium Populi by the universal Consent of the Citizens and People Lib. 1. Tit. 7. 2ly It appears that the Kings were no less obnoxious to the Laws than the Subjects themselves Lib. 2. Tit. 2. 3ly It appears not that the Romans Laws and much less their Royal Law had any Authority amongst them Lib. 2. Tit. 9. 4ly It appears that their Kings had not so much as the Power to pardon Crimes without the consent of the Bishops and chief Lords Lib. 6. Tit. 7. Lastly It is evident from their History that their Kings were liable to be deposed by the States when ever they went about to transgress their Bounds and tyrannize over their Subjects I confess that the Council of Toledo IV. in their last Canon thus express themselves Quicunque amodo ex nobis vel totius Hispaniae populis qualibet conjuratione vel studio sacramentum fidei suae quod pro Patriae Gentisve Gothorum statu vel conservatione Regiae salutis vel incolumitate Regiae Potestatis pollicitus est temeraverit aut potestate Regni exuerit aut praesumptione Tyrannicâ Regni fastigium occupaverit Anathema in conspectu Dei Patris Angelorum atque ab Ecclesia Catholica quam perjurio profanaverit efficiatur extraneus ab omni Coetu Christianorum alienus cum omnibus impietatis suae fociis quia oportet ut una poena teneat obnoxios quos similis error invenerit implicatos Whosoever from this time forwards either of us or of any of the People of Spain shall by any Conspiracy or Attempt break the Oath of his Fidelity he has taken for the welfare of his Country and the Gothick Nation the conservation of the King's Life and maintenance of the Royal Power or who shall deprive him of his Kingdom or by a Tyrannical Presumption usurp the Throne let him be Anathema in the sight of God the Father and the Angels and be cast out from the Catholick Church which he has profaned by his Perjury and be turn'd out of all Christian Assemblies with all the Complices and Associates of his Wickedness because it is but fit that all they should be liable to the same Punishment who are involved in the same Crime The same is repeated in the Council of Toledo V. cap. 1. and in the Council of Toledo X. Cap. 2. But we may affirm with truth that those who have worn this Canon threadbare by their frequent citing of it did either not understand it or changed the sense of it to impose upon and delude others Wherefore let those that read these words well observe
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
trouble a Society thought good to divide the command amongst many Those who took notice that this equality produced dissensions amongst many Governors placed the power in one person only Those that were aware that a single person might overturn the Laws and set up his will as the only rule of his conduct found it necessary to preserve to the People their share in the Government In a word every Nation chose that way they thought most sure and proper to obtain the true ends of an happy Government in order to secure and preserve the Society What I have said in general concerning the original of Soveraignty or Magistracy amongst Men shews that it cannot be denied but that the institution thereof is Divine though God did not think fit to determine it to any certain form of Magistracy whether of Monarchy Aristocrasie or Democrasie but left it to the Peoples free choice to pitch upon that form they should judge most convenient for them But to procure a farther light to this matter we must consider the Judgment of Philosophers and Divines concerning this point CHAP. II. The different Opinions of Philosophers and Divines concerning this matter IT may be said That there are three Opinions concerning the original of Soveraign Magistracy Cicero in his Books of the Commonwealth was of Opinion as appears from the definition he sets down That Governments were at first formed by an effect of pure necessity St. August de civit D. which forced the weaker to seek for aid and succour from those that were stronger to secure themselves from oppression This was also the Opinion of the famous Archbishop of Burgos in the Council of Basil Fascic Fol. 7. The Body of Christian Divines maintains that the Authority of the Sword was instituted by God as may be seen Gen. 9. And it appears that whereas before the Deluge the Patriarchs were the only Masters of their Families which gave occasion to abundance of Crimes Justice not being executed with vigour enough to put a stop to the course of exorbitances as long as it was in the hands of a common Father God was pleased to enact a Law whereby the Sword should no longer be bound up to each head of a Family but committed to one who should be particularly charged therewith by the common consent of the Society The Third Opinion is that of some new Divines and other flatterers of the unbridled power of Princes who maintain that Kings derive their Authority immediately from God and not mediately from the consent of the People Thus Peter de Marca declares himself on this point de concord lib. 2. c. 2. v. 1 2 3. following therein the sentiments of Victoria and Duval the one a Spaniard and the other a Frenchman We need not wonder if Cicero was mistaken in the deciding of this matter as being destitute of that light which Moses furnisheth Divines with He determines this point only as a natural Philosopher However we must observe that Cicero himself and the most wise amongst the Heathens have sufficiently given to understand that they conceived Magistracy without which it is impossible for a Society to subsist to be of Divine Original as well as all other good and profitable institutions for the benefit of Mankind But not to insist upon this forasmuch as all Divines agree that the original of Magistracy is from God our business only is to enquire which is the truer Opinion theirs who acknowledging the Divine institution of Magistracy maintain that this Authority is communicated to the Powers and Magistrates by the People or of those who pretend that God immediately communicates the same to the Magistrates that are invested therewith In order to the resolving of which before we pass any further we are to observe 1st That the Body of Divines who defend the former of these Opinions do agree That the Authority of Magistrates is not to be accounted less Divine because it does not immediately come down from God. They own these Two things 1st That God has ordered there should be Sovereign Magistrates to regulate and govern Societies 2ly That God having divested private Persons of the right of doing themselves Justice in case of Offences given them has ordained that the Magistrates should have the Sword put into their Hands by Capital and other Punishments to stop the violence of those who disturb the Peace of the Society and violate the Rules of Justice And in this respect they acknowledge Magistracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a divine Settlement and Institution Secondly We are to observe That when on the other hand they maintain That the Power of the Magistrates is conferred by consent of the People in which respect they pretend That St. Peter calls them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that doth not in the least diminish the Authority of this Divine Institution of Magistrates which they refer solely and immediately to God. Thirdly That whatsoever Notion we may frame of the Power of Magistrates whether we suppose it conferr'd upon them immediately by God as M. de Marca pretends or whether it be only mediately derived to them from God by the intervening consent of the People the thing is still the same because it is evident that this Power is not communicated to them but for the subsistence of the Society the Preservation whereof is the natural End of Government and Sovereignty Fourthly That they do not oppose this Notion of the immediate Collation of the Sovereign Power by God save only that they might express themselves more exactly and distinguish the ordinary Governments of the World from the Kingdom of Israel For the same Divines generally own That the Institution of the Royal Power in Israel was an immediate Act of God but withal maintain That the same cannot be said of other Sovereigns This laid down I say That nothing can be imagined more vain than the second of these Opinions and it is enough only to understand the terms which those Divines make use of to express their Sentiment concerning the Original of Sovereign Magistrates in every State and to consider the Proofs they alledge to evidence the falseness of it which Opinion accordingly I shall refute in the following Third Chapter CHAP. III. That Sovereigns do not receive their Power immediately from God. I Say then That it is false That Sovereigns receive their Power immediately from God. This is a Truth may be easily made out Indeed though the Power of Magistrates of what sort soever they be be of Divine Institution which of all the present Sovereign Powers whether Monarchs Commonwealths or any other Form of State was instituted immediately by God And who are the Persons invested therewith whom God has immediately called to that sort of Power All States are formed either by Conquest or by Consent of the People which intervenes in the Election at the first Founding of a State and which is renewed in every subsequent Election of Princes or which is perpetuated in successive Kingdoms
against Religion Justice and the Government That a Prince who passeth these Bounds must be held and esteemed for a wicked Tyrant cruel and intolerable who by this means pulls down the Hatred of God and his Subjects upon himself Du Haillan Historiographer of the Kings Henry III and Henry IV. follows the same notion of Claudius de Seissel in his third Book of the state of the Affairs of France dedicated to Henry III. maintaining that the Government of France is composed of Aristocrasy and Democrasy p. 168. And indeed who can judg otherwise when he attentively considers these six things which are a part of the publick Constitution of the Kingdom of France 1st That though the Crown for a long time since has followed the form of Succession yet the form of Election is still observed at the Coronation Hunc vultis hunc jubetis esse Regem This is he whom you will and require to be your King these Words are spoken to the People before the Coronation We find the Peoples Election is mentioned and the King called elect in the form of Coronation published by Hugo Menard a Benedictin 2ly The King is there engaged by his Oath to rule according to the Laws of the Kingdom as may be seen in the Ceremonial of France 3ly He can make no Laws but in the Parliaments or States General whereof we have an Instance in the States of Orleans in the Year 1560. and is the same with what D'avila has obin his 2d Book of the Civil Wars 4ly He can make neither Peace nor War but by the Advice of the States General This is acknowledg'd by Lewis XI as we find in Philip de Commines 2 Book ch 14. 5ly He can raise no Mony but by Concession from the States General We find this point thus decided by the States of 1338 with the consent of King Philip That no Taxes could be imposed or levied on the People of France without urgent and evident Necessity did require it and then only by the grant of the States Gila Fol. 157. Philip de Commines lib. 5. c. 18. saith with respect to this point Is there any King or Lord on the Earth who has Power besides his Demesne to impose so much as a Penny upon his Subjects without the Grant and Consent of those who are to pay it except it be by Tyranny and Violence 6ly The Kings of France are liable to be deposed by the States General in case they abuse the Authority they are entrusted with This last Article viz. of the Proceedings of the French against those of their Kings who abused their Authority does evidently demonstate That the Monarchy of France is altogether limited according to the Platform Caesar gives us of the Government of the ancient Germans or Francs who are descended from them There is a passage which is ordinarily abused to prove that unjust Kings and Tyrants cannot be deposed wherein Gregory of Tours thus expresseth himself to Chilperic Lib. 5. c. 19. If any one of us who are Lords transgresseth the Bounds of Justice you have the Power to punish him but if you your self do not keep within them who is it can correct you We indeed speak to you and you hearken to us if you please and if you will not who is it shall condemn you except he who has said that he is Righteousness it self I don't believe there was ever any Author that undertook to defend the Doctrine of Non-resistance and Passive Obedience who has not made use of this Proof but give me leave to say that they have quoted this passage with as much Judgment as they alledged the 75th Canon of the 4th Council of Toledo for 1st Observe that this is the Discourse of Gregory of Tours who was accused by Chilperic for opposing himself to the Justice that Prince demanded of a Council against Pretextat Bishop of Roven whom he accused of high Treason and forasmuch as the Bishops were perswaded of his Innocence whom they saw attackt by false Witnesses this Gregory had the Courage to maintain that it was their Duty to make their Remonstrances to the King concerning this matter The King took their Design of remonstrancing him for an opposition to the Justice he had demanded whereupon Gregory of Tours made the Discourse just now mentioned So that it plainly appears that this Discourse only respects the order of Bishops who under that Relation have no other way to redress themselves with regard to Kings but only by Remonstrances but does not at all speak of the Body of the State who are invested with other Rights in Reference to a King who undertakes to pervert Justice But to make it appear that Frenchmen at that time did not believe that Kings had the Priviledg that they could not be deposed by the States Though they abused their Authority we need only to consult the History of the deposing of Childeric Father of Clovis which is set down by Gregory of Tours Lib. 2. ch 11. and approved of by him We find that they had preserved this their Right by the Deposition of another Childeric in the 8th Century and whereupon it is obvious and natural to make these Reflections 1. That the Francs had the Power of choosing and deposing their Kings 2. That the Oath they swore to their Kings was conditional and supposed their acquitting themselves of the charge and trust reposed in them and which they were obliged by Oath to make good 3. That it is false that King Childeric was deposed by the Authority of Pope Zachary as the Papists have maintained forasmuch as that proceeding was an Act of the States General who made use of their Right on this occasion This is so true that Pope Zachary himself laid it down as a Maxim in his Letter to the Francs that this was a right inherent in the People Nam si Princeps Populo cujus beneficio Regnum possidet obnoxius est si Plebs Regem constituit destituere potest For if a King saith he be obnoxious to his People by whose graunt he possesseth his Kingdom if the People constitute a King they may also depose him If we come to the Race of Charles the Great we find Lewis the Good deposed by the States assembled at Thionville The whole Proceeding whereof may be seen in Baronius du Chesne Le Cointe where we may observe 1. That it was done with consent of the Bishops 2. We see there an Indictment on divers Articles which contains as many Crimes against the State. 3. When this Deposition was recalled afterwards they did annul the Acts of the former Assembly not as if they had acted without Power but because they had proceeded on false Accusations and insufficient Grounds We find also the same Proceeding with respect of Charles the Gross and Charles the Simple Indeed it was then so notorious that the Power of the Kings of France though they took to themselves the Title of Emperors was limited the Estates being
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
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
invested with part of the Soveraign Authority that Lewis the Good solemnly avows the same Lib. 2. Capitul c. 2 c. 12. We find also that the Clergy of France was so far convinced that the States of the Kingdom had right to dispose of the Crown for the good of the State that when Charles the Bald was chosen by the Kingdom of Lorrain in Prejudice of the Children of the King his Brother and that Pope Adrian II. wrote to them thereupon by Hincmar Archbishop of Rheims threatning to excommunicate them they sent back this Answer to him by the said Hincmar Petite Dominum Apostolicum ut quia Rex Episcopus simul esse non potest sui Antecessores Ecclesiasticum ordinem quod suum est non Rempublicam quod Regum est disposuerunt non praecipiat nobis habere Regem qui nos in sic longinquis partibus adjuvare non posset contra subitaneos frequentes Paganorum impetus nos Francos non jubeat servire cui nolumus servire quia istud jugum sui Antecessores nostris Antecessoribus non imposuerunt nos illud portare non possumus qui scriptum esse in sanctis libris audimus ut pro libertate haereditate nostra usque ad mortem certare debeamus Desire the Apostolical Lord that forasmuch as he cannot be King and Bishop both together and that his Ancestors have concerned themselves with the Ecclesiastical Order which is their particular Province and not with the Common-wealth which is the Office of Kings not to command us to take such a one for our King who at so great a distance is not able to help us against the sudden and frequent Assaults of Heathens and to require us Francs to serve him whom we will not serve because his Ancestors never offer'd to impose this Yoke upon our Ancestors neither can we bear it who find it written in the Holy Books That we ought to fight for our Liberties and our Inheritance even unto Death We see also that he who was the Head of the Third Race viz. Hugh Capet was chosen King of France notwithstanding the apparent Rights of Charles of Lorrain who was the next Heir of Lewis V. by reason that the said Charles seemed too much linked to the Interests of the Germans who at that time were Enemies to France Guil. de Nangis ad An. 987. and others in du Chesne Who does not know the History of Henry III. who having been deposed in Poland for deserting that Kingdom was afterwards deposed in France by advice of the Sorbonn and of the greatest part of the States We may easily judg from these two Characters that Frenchmen never were infected with the Doctrine of Non-resistance The one is because they look'd upon this Doctrine as an Error See what Gerson the famous Chancellor of the University of Paris saith of it Error est dicere terrenum Principem in nullo suis subditis dominio durante obligari quia secundum jus Divinum Naturalem aequitatem verum Dominii finem quemadmodum subditi debent fidem subsidium servitium Domino sic etiam Dominus subditis suis fidem debet protectionem Et si eos manifeste cum obstinatione in injuria de facto prosequatur Princeps tunc Regula haec Naturalis vim vi repellere licet locum habet Opusc adversus Adulat consid 7. It is an Error saith he to assert that an Earthly Prince as long as his Dominion lasts does not stand engaged to his Subjects in any thing because according to the Divine Law Natural Equity and the true End of Dominion as the Subjects owe to their Prince Faithfulness Subsidy and Service so their Prince owes them Faithfulness and Protection and in case he doth publickly and with obstinacy imperiously oppress them then that natural Rule takes place That it is lawful to repel Force by Force The second is that they have always with horror rejected the Abuse that has been made of the Expression in 1 Sam. 8. Hoc est Jus Regis for to maintain the Tyranny of Princes If we will believe the Laws amongst you Princes saith Claudius d' Epense to King Henry II. you are Lord of our Body and Goods or to speak more like Christians we and ours are at your command Your Majesty ought to abhor that Right nothing less than Royal and nothing more than Tyrannical which God by the Mouth of Samuel did not allow to Kings but only threatned the People with telling them This shall be the Right of the King c. And then adds Go to now ye Dogs and Flatterers of the Court go to and alledg hence-forward this Right not Regal but Barbarous but Turkish but Scythian or if any worse Epithet can be invented I acknowledg that the Face of Affairs is very much changed since these hundred Years The States General have not been assembled almost these Seventy Years The Parliaments themselves which were established by the Kings and the States General to preserve the Rights of the States have been forced by the present King to verify without any Debate all manner of Edicts for the Imposition of Mony. But yet after all this Change is of so late standing that there is little appearance it should be look'd upon as a sufficient Prescription against the Interest of the State. Those French-men who have any knowledg of the Laws of the State and its Constitution set down the Epocha or Date of this Change of the Ancient Maxims of the Kingdom to wit the time which followed the Cessation of the Holding of the Estates General or the Minority of Lewis XIII and the Reign of Lewis XIV Let no Body imagine that the Ancient Idea of the Government of France is quite effaced out of the Spirit of the Nation I own that Lewis XIV by a Reign both very long and very violent has made the French lose a great deal of their Courage The Clergy of that Kingdom have above all endeavoured to support his Tyranny by Maxims advanc'd and contriv'd by them for the ruin of the Protestants with as little regard for their Country as they have shewed Conscience in their base Panegyricks pronounced to his Honour But however there are still in being a great number of honest Men who adhere to those Ancient Maxims I can at this present produce one of these from amongst the Clergy the Learned and illustrious M. Joly Canon of the Church of Paris who in the Year 1663 publish'd a Book with this title Important Maxims for the Education of a King. This Man alone may suffice to prove my assertion for he very vigorously confirms these Maxims by the Testimony of Kings themselves Chancellors Ministers of State Lawyers and Historians of France that they were always of Opinion in that Kingdom That the King holds his Authority from the People That the Power of Kings is Limited That the French Monarchy is a Monarchy allay'd and temper'd with
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
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 〈◊〉 〈◊〉 〈◊〉
acknowledg that to judg aright of Things the Proceedings of England with respect to James II. have been the most just and lawful that could be The Things I have made out in this Treatise are summarily contain'd in the following Articles 1. That the Constitution and Establishment of any Government is the Effect of the Original Consent of the People though the Authority of the Magistrates be a Thing established by God. 2. That this Establishment supposeth the Subsistence of the Laws which are the End of the Government in the Design of God for indeed Kingdoms without Justice are no better than great Robberies as St. Austin calls them De Civit. Dei Lib. 4. cap. 4. 3. That these Fundamental Laws for the Subsistence of the Society are a Bond which so strictly ties the Soveraigns that nothing is able to dispense with their Obligation to them 4. That when the Soveraigns do violate them they break the Ties whereby their Subjects are bound to their Lawful Authority 5. That the Subjects can never be deprived of their Right to hinder the Ruin of the Society and of the Laws for the conservation of which only they have put their Rights into the Hands of the Prince 6. That there was never any State that subsisted under other conditions than these 7. That England in particular and Scotland have always had this Right Now these Things supposed it is evident 1. That James II. has forfeited all his Rights to the Crown even before his Desertion 2. That the Lords and People justly took up Arms against him to oblige him by Force to reform the Disorders he had caused 3. That the States had Power without any regard had to Him to raise the King and Queen to the Throne 4. That the Subjects are more than enough freed from their Oath of Allegiance to King James 5. That they have Right and are under Obligation to take up Arms and oppose themselves against James II. and to maintain the Authority of the King and Queen 6. That those who oppose themselves to this are declared Enemies of the State and of our Religion and the Authors and Abettors of Tyranny and Popery 7. That those who pretend themselves scrupulous in these Points are the Cause of the Division and consequently of the Ruin of the State and Religion whereby they grievously sin against God and therefore are obliged in Conscience to repent and make amends for the Mischief their Division has caused The thing is very evident and forasmuch as it is of the highest importance for their Salvation I beg of them well to weigh and consider these following Articles and witness their Repentance in all these respects 1. Then they ought to repent for that they making profession to have so strong an Affection for James II. they have made him fall upon the Designs of changing the Government into a Despotical and Arbitrary Power and thus by their Maxims have advanced and precipitated his Ruin. They are the Men who have made him conceive the Design of establishing a Tyranny in England they have given birth to his hope of being able to compass it according to his Hearts desire and his Ruin proceeding from the opposition that was made against these his Designs 't is them he may thank for all the Miseries into which he is plunged and consequently they have great reason to repent for having precipitated his Ruin by their false and deceitful Foundation See what Gerson saith In opusc contr Adulat consid 10. Clericus ille Regem suum aut Principem amaret minimè qui perversas tales vellet dare doctrinas aut toto posse scientia illas non impediret quia non est modus certior quo Rex aut Princeps se perderet in corpore in anima totamque ejus damnationem quam habendo falsas tales opiniones eas opere exequendo Cur Quoniam Dominatio sua in Tyrannidem verteretur in infidelitatem That Clergy-man would be far from loving his King or Prince who should teach him such perverse and false Doctrines or that with all his Power and Skill should not oppose them because there is not a more sure way for a Prince to destroy himself Soul and Body and to procure his total Damnation than by entertaining such false Opinions and reducing them into practice Why so Because his Government by this means would be changed into Tyranny and Perfidiousness 2. They ought to repent for their having contributed so much towards the establishing of Tyranny not only because that would have destroyed the Publick Liberty but because his Design at the same time was to overthrow the Protestant Religion and substitute in the place of it the Idolatry Superstition and Tyranny of Popish Usurpation This was a thing they could not do without imitating the Conduct of the Popish Clergy who since the Popes have undertaken to tread under their Feet the Rules of the Gospel and of the Church have endeavoured to inspire Princes with an indifferency for their Oaths and contempt of the Laws which are a Safeguard and Security of the Civil Society 3. They must repent at least some of them for having obstinately endeavoured to hide and disguise the Conspiracies which were design'd for the Ruin of our Religion and Liberty 4. They must repent for having writ in favour of an Opinion contrary to the Judgment of the Ancient Reformers of England and for having traduc'd as Rebels the Protestant Churches beyond the Sea for their maintaining the Maxims which the first Reformers of England have Asserted and for which they have Writ in defence of their Protestant Brethren 5. They must repent for that by their Sermons and Writings they have insinuated to the People those Maxims which have put them upon betraying the Natural Rights of the Society and in the Sequel upon imprudently exposing themselves to betray the Interest of the Protestant Religion which they were obliged to deliver safe to their Posterity 6. They must repent for having by this means encouraged the Judges to tread underfoot the Authority of the Laws and to dispence with them as having taught them to look upon the Laws as the Concessions of Princes and Acts of their Will and by Consequence revocable at their good Pleasure 7. They must repent at least some of them for having mounted to Ecclesiastical Dignities by publickly appearing in the Lists for defence of these pernicious and tyrannical Maxims directly level'd at the Ruin and Overthrow of our Liberty and Religion 8. They must repent for that their Opinions at this Day are the Causes of the present Conspiracies Rebellions and Treasons against the Government by which God has been pleas'd so graciously to secure our Liberty and Religion from the inevitable Ruin wherewith they were threatned However we have cause to bless God that those who are guilty of these Sins are but inconsiderable in their Numbers And I ardently wish for them they may once seriously enter into themselves
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